REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE No: A267/2018

(1)	REPORTABLE: NO / YES
(2)	OF INTEREST TO OTHER JUDGES: NO /YES
(3)	REVISED. 

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 SIGNATURE			DATE

In the matter between: 
POONYANE MBULELO 	APPELLANT 

and

THE STATE	RESPONDENT

___________________________________________________________________
JUDGMENT

MTATI AJ
Introduction
[1]	 In this matter the Appellant approaches the Court with the leave of the court a quo to appeal against a sentence of 15 years preferred against him on a single charge of robbery with aggravating circumstances as intended in section 51 (2) of Act 105 of 1997.
[2]	 Importantly, it was argued on behalf of the Appellant that the period of almost 4 years (3 years 10 months) that he spent awaiting trial constitutes substantial and compelling circumstances justifying the imposition of a lesser sentence.
[3]	The Court will interrogate below what constitutes substantial and compelling circumstances and whether the period spent awaiting trial indeed justifies the imposition of a lesser sentence in the light of Act 105 of 1997.
Background
[4]	There were initially two charges of robbery with aggravating circumstances that were preferred against the Appellant and another. Appellant was found not guilty on one of the two charges. As such, I will confine myself to the charge which forms part of this appeal. The State alleged that on or about 5 May 2011 and at Rossettenville, in the Regional Division of South Gauteng, Appellant intentionally and unlawfully assaulted one Ms. Nditelani Margaret Tyelbooi and there with force took a Run X Toyota vehicle being the property of Ms. Tyelbooi.
[5]	The brief description of this awful incident is that Ms. Tyelbooi was in the company of her daughter and had just parked their vehicle with the intention of buying some items at a nearby Spar. The time was around 18h00 in the early evening. Immediately after parking her vehicle, they were accosted by the Appellant demanding the keys to the vehicle whilst at the same time threatening Ms. Tyelbooi with a firearm. Her daughter, pleaded with her to give up the keys and the vehicle as she was afraid that Appellant will shoot and kill her mother. Ms. Tyelbooi was shocked and did not know how to immediately react. She was ultimately pushed out of the vehicle, suffering some injuries. The incident was reported to the police and the Appellant was later arrested on 16 July 2011.
[6]	The Appellant was convicted on the one charge of robbery with aggravating circumstances on 26 May 2015 and on the same day sentenced to a period of 15 years imprisonment. On 16 August 2017 the trial court granted Appellant leave against his sentence. It is important to note that the Appellant was legally represented throughout the trial and the application for leave to appeal was against sentence only. 
Legal disposition
[7]	In terms of section 51(2)(a) of the Criminal Law Amendment Act 105 of 1997, as amended by section 33 of Act 62 of 2000 and section 36 of Act 12 of 2004 and as further amended by Act 38 of 2007, if an accused (Appellant) is convicted on a charge of robbery with aggravating circumstances as is the case in this matter, a provision for a minimum sentence is applicable as follows:
(i)	15 years imprisonment in the case of a first offender;
(ii)	20 years imprisonment in the case of a second offender; and
(iii)	25 years imprisonment in a case of a third or subsequent offender.
[8]	The personal circumstances of the Appellant are recorded as having been 24 years of age at the time of sentence. He was not married and unemployed with no dependants. According to the transcribed record, he studied until grade 11 and was under the care of his parents. Neither of the Counsel before Court challenged the application of section 51(2)(a)(i) of Act 105 of 1997. As indicated supra the only issue was whether the period of almost four years awaiting trial is not, per se, a matter constituting a substantial and compelling circumstance to warrant imposition of a reduced sentence.
[9]	In the case of S v Malgas 2001 (1) SACR 469 (SCA) at 477 D-E Marais JA had the following to say in considering what constitutes substantial and compelling circumstances:
“The specified sentences were not to be departed from lightly and for flimsy reasons which could not withstand scrutiny. Speculative hypothesis favourable to the offender, maudlin sympathy, aversion to imprisoning first offenders, personal doubts as to the efficacy of the policy implicit in the amending legislation, and like considerations were equally obviously not intended to qualify as substantial and compelling circumstances”. 
The court reasoned that the cumulative impact of all the circumstances must justify a departure from the prescribed minimum sentencing provisions.
[10]	In a later decision of Nugent JA in the matter of S v Vilakazi 2009 (1) SACR 552 (SCA) the learned judge considered the period of incarceration awaiting trial and stated:
“The appellant was arrested on the day the offence was committed and has been incarcerated ever since. At the time he was sentenced he had accordingly been imprisoned for just over two years. While good reason might exist for denying bail to a person who is charged with a serious crime it seems to me that if he or she is not promptly brought to trial it would be most unjust if the period of imprisonment while awaiting a trial is not then brought to account in any custodial sentence that is imposed. In the circumstances I intend ordering that the sentence- which for purposes of considering parole is a sentence of 15 years’ imprisonment commencing on the date that the appellant was sentenced- is to expire two years than would ordinarily have been the case”.
 I do not understand this judgment to be saying whatever the reason for the delay it should necessarily lead to the reduction of the ultimate sentence. If, in my view, the reasons for the finalisation of the trial are largely attributable to the accused person, he may have himself to blame when it comes to sentence. I shall revert to the reasons for the long pre-sentence detention later in this judgment.
[11]	 In S v Mqabhi 2015 (1) SACR 508 GJ, this court was faced with similar circumstances where the appellant was sentenced to a minimum sentence of 15 years having spent a period of two years in custody before sentence. The trial court did not find any substantial and compelling circumstances to depart from the prescribed minimum sentence. The court analysed a number of SCA judgments including that of Vilakazi, referred to above, S v Dlamini 2012 (2) SACR 1 SCA; S v Kruger 2012 (1) SACR 369 SCA and concluded that the period of detention pre-sentence cannot be taken in isolation in determining substantial and compelling circumstances but the cumulative effect of the appellants personal circumstances with the inclusion of aggravating circumstances.
Misdirection 
[12]	 The essential enquiry in an appeal against sentence is not whether the sentence imposed was right or wrong but indeed whether the sentencing court exercised its discretion properly and judicially. This Court does not have a general discretion to ameliorate sentences since this function lies pre-eminently within the domain of the trial court. This Court however, needs to interrogate whether the trail court considered all the mitigating factors sufficiently together with the aggravating circumstances to reach a justiciable sentence. The trial court had the following to say in considering sentence:
“What is very important is the fact that you have been incarcerated since 16 July 2011. This is the oldest case in my roll.”
Nowhere on the record does the presiding magistrate appear to factor this important consideration that he made. He goes on further to say:
“The mother [was] injured. I accept that the injury was not serious and was a part of the robbery…With the facts known to me I, and I believe most courts in this area, would sentence you to a period of 18 years unsuspended imprisonment. Although time spent in custody plays a major role. There is no mathematical equation. The court does not even try to arrive at a sentence on this basis”.
[13]	The trial court also appears to recognise that there were no serious injuries on the part of the complainant. This does not mean there was no psychological trauma suffered by the victims, but unfortunately the extent thereof does not appear to have been sufficiently canvassed through evidence. It is also not clear to me if the magistrate, by mentioning the period of 18 years imprisonment being applicable in his jurisdiction, he was by this reducing a period of three years when he ultimately sentenced Appellant to 15 years imprisonment. I do not think so as there were no basis placed for an otherwise increased sentence from the minimum sentencing regime. Failure to weigh both aggravating and mitigating factors and finding no substantial and compelling circumstances, suggest that there are factors that render the Appellant more morally blameworthy. If it was indeed so, then these factors should have been clearly articulated.
[14]	It is my view that, considering the cumulative effect of all factors, the magistrate should have found that substantial and compelling circumstances indeed exist to depart from the minimum sentence of 15 years.
[15]	That is however not the end. The Court also needs to look at the reasons for the continued incarceration arriving at a period of almost four years. In perusing the J15 (appearances and reasons for postponements), it can be noted that the matter was postponed about 12 times for legal representatives. Since there were initially two accused, the one accused was privately represented and at some stage his legal representative had to withdraw for lack of proper instructions. On five occasions the matter was postponed as a result of a prosecutor who was indisposed. On two occasions the case was postponed for the defence to make representations to the senior public prosecutor and various other stages for bail and for state and defence witnesses.
[16]	It cannot be said that the Appellant was solely responsible for the delay nor can it be said his hands are clean. Having found that substantial and compelling circumstances do exist, it is my view that part of the sentence should be reduced. This cannot be done mathematically but the Court should consider that it was largely as a result of the state that the matter delayed finalisation as well as the absence of the legal representative of the co-accused.
[17]	 In consideration of the appropriate sentence and in light of the period already served by the Appellant incarceration, I propose that the sentence be reduced by a period of three years. Accordingly, I propose the following order:
Order
1.	The appeal against sentence is upheld;
2.	The court a quo’s order is set aside and replaced with the following order:
2.1   The Appellant is sentenced to a period of 12 years imprisonment, such sentence to commence on 4 June 2015, being the date he was sentenced by the trial court.
2.2    The Appellant is unfit to possess a firearm in terms of section 103 (1) of Act 60 of 2000.

									_______________________
V T MTATI AJ 
ACTING JUDGE OF THE HIGH COURT
                       GAUTENG LOCAL DIVISION, JOHANNESBURG

I concur

								 ____________________
								   I OPPERMAN
						JUDGE OF THE HIGH COURT
		GAUTENG LOCAL DIVISION, JOHANNESBURG

APPEARANCES:
COUNSEL FOR APPELLANT:   		 Adv E GUARNERI
INSTRUCTED BY:		              LEGAL AID SA	
COUNSEL FOR RESPONDENT              Adv N KOWLAS
INSTRUCTED BY:		              NDPP
DATE OF HEARING:			 29 April 2019
DATE OF JUDGMENT:			 6 June 2019
Date of correction of patent errors in 
order by agreement between 
the appellant and the respondent:           19 June 2019