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NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO: CA& R 144/2014

In the matter between

ASANDA SKOLOKU.........................................................................................................Appellant

versus

THE STATE.....................................................................................................................Respondent

APPEAL JUDGMENT

HARTLE J

1. The appellant was convicted on separate charges of housebreaking with intent to steal and theft and assault with intent to do grievous bodily harm by the regional court sitting in Port Elizabeth.

2. The evidence reveals that during the early hours of the morning of 2 December 2013 the first complainant awoke to find two burglars in his Greenshields Park house busy unplugging the television set in the room in which he and his brother slept.  After they left the room he alerted his father and brother to the presence of these persons in the house.  His brother (the second complainant) went ahead of him through the front door which had been left ajar by the burglars to investigate the situation where he encountered two men standing on their premises close to the front door and to his motor vehicle.  He observed that they were just chatting there. He noticed too that property which had been taken from their home was lying next to them on the ground.  There was no time to retreat before his presence was noticed by of one of them who alerted the other.  They both instantly set upon him and whilst he was engaging physically with one of them (it transpires that this was the appellant) the other person started stabbing him from behind.  Although he was at first able to pin him down, the appellant ultimately managed to overpower him and started stabbing him in the mouth.  The appellant also stabbed him in the neck twice and once behind the side of his head.  He screamed for the first complainant who came to his assistance.  When the latter arrived on the scene the other person who had inflicted two stab wounds to the second complainant’s back made a quick escape. 

3. With the help of their father the first complainant pinned the appellant into a corner.  They wrestled with him and managed to disarm him of the knife.  The first complainant maintained a “choke hold” over the appellant and sat on top of him until the police arrived later to arrest him. 

4. An investigation revealed that the appellant and his co-perpetrator had gained entry through a window at the back of the complainants’ home which was closed at the time the family went to bed.  The curtain railing at the top of the window in the living room had also fallen down in the process.  The items removed from the house and which had been standing on the premises next to the vehicle where the scuffle ensued included three cell phones, two pairs of shoes, hair clippers, a 42 inch plasma television set, a Sony Play Station and numerous television and gaming accessories. The property was cumulatively valued by the first complainant in the sum of R9 083.50.  Prior to the recovery of the various items, they had been safely stowed away inside the house in cupboards and wardrobes.  The television and related accessories had been in the bedroom.

5. The second complainant sustained stab wounds to his back, head, neck and lip. The open wounds were stitched at the Livingstone Hospital where he received treatment and where he was held for observation for approximately sixteen hours.  His tooth was chipped and scars remain from the various knife wounds.  The first complainant too suffered what he described as a “nick” to his head which he suggested was co-incidentally inflicted during the struggle either with a knife or by making contact with the rough wall during the scuffle.

6. Despite the potentially lethal injuries sustained by the second complainant, particularly those to his head and neck, the appellant was not convicted of attempted murder as initially charged but rather of assault with intent to do grievous bodily harm by virtue of the various blows inflicted upon him by the appellant and his co-perpetrator in the circumstances. The separate counts of housebreaking with intent to rob and robbery with aggravating circumstances were not found to be justified but the trial court found him guilty of housebreaking with intent to steal and theft on the basis that this was a competent verdict.

7. The appellant was sentenced to four years’ imprisonment on the verdict of housebreaking and eight years’ imprisonment on the verdict of assault.  The court ordered the sentences to run concurrently.

8. He appeals against the sentences imposed, leave having been granted upon petition.

9. It is trite that sentence is a matter which is pre-eminently within the discretion of the trial court and that a court of appeal will be very slow in eroding that discretion.  It will only interfere where that discretion has not been exercised judicially.  It will interfere where, for example, the sentence is vitiated by irregularity or misdirection or the sentence is “disturbingly inappropriate”.[1]

10. Ms Mtini who appeared on behalf of the appellant submitted that the sentences imposed are shockingly inappropriate.  It was submitted further that the trial court had erred in failing to take into consideration that even though the second complainant had suffered serious injuries, these were not of a permanent nature. The trial court also erred in overlooking the fact that the complainant’s property taken during the housebreaking was recovered immediately on the scene, ameliorating any loss to the family as a result of the appellant’s actions, more especially any financial loss.  The matter had been nipped in the bud as it were in the sense that the appellant had been apprehended before he left the complainants’ premises.  She also submitted finally that the trial court’s reliance on the appellant’s previous convictions constituted a material misdirection which warranted interference upon appeal.

11. Although Ms Mtini referred the court to S v Muggel[2] with regard to the last submission she failed to articulate in her argument what exactly she found problematic in the approach of the trial court with regard to the emphasis placed on the appellant’s previous convictions, both of which were similar to the two offences of which he had been convicted and both of which were obviously relevant.

12. In S v Muggel the court set out the legal position in regard to the extent to which it is permissible to take previous convictions into consideration in determining an appropriate sentence as follows:

“1. In terms of s 271(4) of the Act the court is required to take previous convictions which have been proved against the accused into consideration when imposing a sentence.

2. In terms of s 271A previous convictions automatically fall away as previous convictions after the expiration of a period of ten years from the date of conviction unless the previous conviction relates to an offence for which the punishment may be a period of imprisonment exceeding six months without the option of a fine or the person has been convicted of an offence for which punishment may be a period of six months’ imprisonment without the option of a fine during that period.  This section does not merely provide that such previous convictions should not be taken into consideration when sentence is imposed, but it specifically provides that they fall away as previous convictions.  S v Zondi 1995 (1) SACR (A) at 23 g – j.  In terms of section 271A the sentencing court has no discretion.  It cannot take into consideration any previous convictions which fall within the purview of the section.  S v Zondi (supra).

3. Although s 271 (4) requires the sentencing court to take previous convictions into account when determining the appropriate sentence, it does not take away the discretion of the sentencing court.  The court is enjoined to exercise its discretion judicially when taking into consideration previous convictions.

4. In the exercise of its discretion, the sentencing court is required to have regard to the nature, the number and the extent of similar previous convictions and the passage of time between them and the present offence.  The relevance and importance of those convictions depends upon the element they have in common with the offence in question.  S v J 1989 (1) SA 559 (A) at 675 C – D.

5. Previous convictions, which bear no relationship whatsoever to the crime, are relevant in a limited sense only and simply with a view to determining to what extent, if any, the forms of punishment imposed for those crimes served as effective deterrents for the person in his or her career of crime and also to indicate the extent to which the person has an uncontrollable urge to lawlessness which reduces the chances of reform.  S v J (supra at 675).

6. The tendency of taking everything that appears on the form SAP69 into consideration, regardless of the passage of time, must be avoided.  It must also be borne in mind that even a criminal is entitled to ask that the lid on the distant past should be kept tightly closed.  S v Mqwathi 1985 (4) SA 22 (T).

7. The degree of emphasis to be placed upon previous convictions is a matter which is within the discretion of the trial court.  Where the degree of emphasis is disturbingly inappropriate, in that it cannot be said that the sentencing court exercised its discretion judicially, the Court of appeal will interfere.”[3]

13. In the present instance the state had proved two previous convictions on the part of the appellant, both recent and having in common with the present convictions elements of dishonesty and violence.  This was their relevance and significance.

14. The appellant was convicted on 13 June 2011 of assault with intent to do grievous bodily harm (apparently committed two years earlier on 13 June 2009) in respect of which he was sentenced to two years’ imprisonment of which six months’ imprisonment was suspended for a period of five years on condition that he is not convicted of assault or assault with intent to grievous bodily harm committed during the period of suspension.  Later, on 29 October 2012, he was convicted of housebreaking with intent to steal and theft committed (according to the SAP 69 record) on 20 October 2012.  In this regard he was sentenced to five years’ imprisonment in terms of the provisions of section 276 (1) (i) of the Criminal Procedure Act, No. 51 of 1977.

15. Self evidently both previous convictions were entirely relevant and the trial court was constrained to take them into account in considering an appropriate sentence.  The magistrate noted that they were in respect of “exactly the same offences” committed in December 2013.  From the fact of these previous convictions he deduced that the appellant has the “propensity to commit the specific offences in particular”.  The fact of the convictions also led the magistrate to conclude, justifiably so it appears, that the previous punishment in each instance did not serve the desired purpose, and that the repeat offences raised doubt as to the likelihood of his rehabilitation.  His previous convictions, taken together with the present ones, further marked him as one who is a danger to society. 

16. In my view there was nothing improper or unreasonable in the degree of emphasis which the trial court placed on the convictions.

17. It was common cause at the sentence proceedings that the state intended to make application at a later stage for the possible bringing into operation of the suspended sentence limited at most to a period of six months.  It was also not in contention that the appellant was still serving his sentence of correctional supervision at the time he committed the offences which are the subject of the present appeal.  This in itself has its own consequences.[4] If it was not foremost in the mind of the magistrate however it was not argued upon appeal that the trial court had misdirected itself by not projecting what the cumulative effect of those consequences might entail. The distinct impression to be gleaned from the record though is that the court considered the appellant to have fully earned the consequences of repeating the offence of housebreaking with the intent to steal and theft.

18. Apart from the issue of previous convictions one also searches in vain in my view for any indication of a basis to interfere with the trial court’s sentence.  The magistrate had proper regard to the appellant’s personal circumstances.  He is unmarried.  He was thirty two years of age at the time of sentencing and living in Walmer with his stepmother and his siblings.  He had two dependents living with him; a boy aged ten years and a girl of nine.  Although it was submitted on his behalf that the mother of his children was staying in Zwide and that he was “looking after” the children, it was not suggested that he was the primary caregiver.  He was however supporting them from income earned as a casual plumber.

19. Concerning the attitude of the appellant to be deduced from the peculiar circumstances of the offences, the trial court found that he had not shown any remorse neither did he regret his actions.  The magistrate expressed his incredulity at the bravado of the appellant (and therefore the need for a weighty custodial sentence to be imposed in all the circumstances) in the following terms:

“Now both offences were committed at the house of the complainant.  His house was broken into.  His property was removed and when they were trying to claim possession of their property, they met some resistence from the accused and his companion.  Now ordinary or novel criminals or people who are not hardened criminals or who are not used to this would have fled at this stage.  That was not the case with the accused.  He turned on the two complainants and drew out a knife and stabbed the second complainant, who is the complainant on the charge, which was initially attempted murder but he was convicted of assault with intent to do grievous bodily harm.  This is a serious display of disregard of another person’s security, privacy, dignity, you mention them.

Now clearly the community expects to be protected against people like the accused person.  Now when a citizen of this country is sleeping in his property and if by any chance he happens to see that something wrong is happening in his property, does he or she deserve to be attacked and molested by the intruder?  Definitely no.  The interests of the society or the community demand that the court should take very drastic and meaningful steps or measures against people like the accused person.”

20. It was conceded on the appellant’s behalf at the sentence proceedings that there were serious aggravating factors which were “evident” and that both offences are “serious and prevalent”.

21. The self same factors highlighted by Ms Mtini in paragraph 10 above as being favourable to the accused were also highlighted by the appellant’s legal representative during the sentence proceedings, but were justifiably given short shrift by the trial court.  These are that the stolen goods were recovered on the scene, that the complainant and his family did not suffer monetary loss, and that the complainant’s brother had in effect survived the attack which had left no lasting effects requiring medical intervention beside the stitching and the visible presence of scars.

22. A reliance on these fortuitous factors however loses sight of the larger picture and the seriously aggravating features of the matter which the trial court was astute to see in its proper context.  These aspects are  the following:

22.1 The appellant and his companion broke into the house of the complainants at night while they were asleep.  They had armed themselves with knives knowing that there were people in the house and were obviously anticipating some resistance.

22.2 It is to be gleaned from the significant number of items stolen that the appellant and his companion were, brazenly so, in the house for quite some time. The fact that the complainants were sleeping in the room also did not deter the two from entering there and unplugging the television set.

22.3 The appellant and his companion were interrupted and had no time to remove the already stolen items from the premises.  It is therefore simply fortuitous that the first complainant did not suffer any monetary loss. The real loss (already suffered) was the invasion of their privacy and breach of their security by the trespass onto their walled and gated premises, the intrusion of the two into the house after forcing open a window, and the clear and indisputable dispossession of their property by removing it from where it was safely stored inside the house to outside near the front door where it was later recovered. The “interruption” further came at great personal cost to the complainants and their father who put their physical safety at risk when confronting the two and effecting the arrest of the appellant themselves.

22.4 The appellant can count himself fortunate that he was not convicted of attempted murder given the nature and extent of the injuries sustained by the second complainant.    The location of the wounds on his neck in particular comes dangerously close to arteries which could have resulted in his death if struck.  This notwithstanding, the second complainant was stabbed six times and suffered serious knife wounds. As was observed by the trial court, the appellant could have fled the scene when the second complainant exited the house and encountered them standing there, but so determined were he and his companion to finish what they had started that they set upon him and attacked him using the dangerous weapons they had gone armed with. The outcome may have been worse, fateful in all probability, had the first complainant not intervened when he did.

23. It is not unreasonable to assume finally that the second complainant in particular must have perceived the experience to be most traumatic.  It was entirely iniquitous for his family to be rendered vulnerable in their own home in the middle of the night.  He did not go looking for trouble, but could not retreat once the appellant and his companion had noticed his presence at the door. 

24. When everything is taken into account, I am satisfied that the trial court properly and reasonably exercised its sentencing discretion and that neither sentence imposed invokes a sense of shock.

25. In the premises the appeal is dismissed.

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B  HARTLE

JUDGE OF THE HIGH COURT

I AGREE

_________________

I T STRETCH

JUDGE OF THE HIGH COURT

DATE OF APPEAL : 18 February 2015

DATE OF JUDGMENT: 25 February 2015

Appearances:

For the appellant:  Ms N P Mtini, Legal Justice Centre, Grahamstown.

For the respondent: Ms H Obermeyer, Director of Public Prosecutions, Grahamstown.

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