---

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

25/11/2015

CASE NO:  A 320/2015

DATE OF HEARING: 16 NOVEMBER 2015

In the matter between:

BAFANA ABRAHAM MOKOENA                                                                                Applicant

and

THE STATE                                                                                                              Respondent

J U D G M E N T

OLIVIER, AJ

1. The appellant was convicted of robbery with aggravating circumstances and assault with intent to do grievous bodily harm. He was sentenced by the Nigel Regional Court to 15 years' direct imprisonment, and declared unfit to possess a firearm in terms of section 103(1) of the Firearms Control Act. The counts were taken together for purpose of sentencing. This appeal is against sentence only.

2. Section 51(2) of the Criminal Law Amendment Act 105 of 1997 is applicable in this case:

(2) Notwithstanding any other law but subject to subsections (3) and (6), a regional court ... shall in respect of a person who has been convicted of an offence referred to in (a) Part II of Schedule 2, sentence the person ... to imprisonment for a period not less than 15 years.

3. The legislation provides that a court can impose a lesser sentence, but only if substantial and compelling circumstances exist.

4. In the seminal judgment of S v Malgas[1] the Supreme Court of Appeal explained that the legislature has deliberately and advisedly left it to the courts to decide in the final analysis whether the circumstances of any particular case call for a departure from the prescribed sentence. In doing so, they are required to regard the prescribed sentences as being generally appropriate for crimes of the kind specified and enjoined not to depart from them unless they are satisfied that there is weighty justification for doing so.[2] (My emphasis.)

5. The court must take into account that this particular crime has been singled out by the legislature for severe punishment and that the minimum prescribed sentence is not to be departed from lightly or for flimsy reasons. Truly convincing, weighty reasons must be present to deviate from the prescribed sentence. However, where the court does find substantial and compelling circumstances, it should not hesitate to impose a lighter sentence.

6. How should a court go about determining the existence of substantial and compelling circumstances?

The starting point should always be the Act. Guidance from past cases is useful, but they should not serve as the starting point for the sentencing enquiry.

A  startling  example  of  a  court's  misdirection  in this  regard  is  S  v Nkunkuma,[3] where the Supreme Court of Appeal had to consider the sentencing question afresh due the judge's approach to the enquiry, described by the court as follows: 'the sentencing yardstick [was] the sentences  imposed  in those  cases  and then  to  ask  whether  the applicable minimum sentences could be considered too severe against the bench mark ...'.[4]

7. There is no requirement that the circumstances considered must be 'special' or 'exceptional'. The traditional factors and circumstances usually considered by the sentencing court as part of the process of arriving at an appropriate sentence should be taken into account to see if they cumulatively constitute substantial and compelling circumstances.

8. Appellant's counsel, in her heads of argument, challenged the sentence on the following grounds, namely that:

a.      The court had overemphasized the seriousness of the offence and the interest of society.

b.     The court had underemphasised the personal circumstances of the appellant.

c.      The sentence was so harsh that it induced a sense of shock.

d.      The court disregarded the recommendations in the report of the probation officer.

9. Appellant's counsel argued further that the cumulative effect of the following factors amounts to substantial and compelling circumstances:

a.      His 'relatively young' age - he was 26 years old at the time of sentencing.

b.      He is the father of two minor children.

c.       He is unmarried.

d.      He is unemployed.

e.      He was raised in a dysfunctional family, and had no parental guidance and supervision, including 'a father figure to give fatherly advice'.

f.        He was  'raised  in  an  area  that  is  not  conducive  to  raise children'.

g.      He and his family have no income; their only source of income is child grants.

h.      He left school during grade 8.

i.        He was in custody for more or less 16 months at the time of sentencing.

j.     He was arrested at the scene and benefitted nothing from the offence.

k.      The value of the stolen goods was only low.

I.        He is capable of rehabilitation.

10. There are, however, significant aggravating factors. The appellant maintains his innocence, even though he does not appeal against conviction. In the words of the probation officer, '[i]t is difficult to evaluate remorse and sense of responsibility in the accused because he denies this involvement to the offenses [sic].' And further: 'He does not seem willing to take responsibility for the offence.'

I am of the opinion, therefore that the appellant is not a good candidate for rehabilitation.

From the probation officer's report, it is clear that the incident has had a very negative impact on the victims. The appellant stabbed one of the victims, resulting in his spending several weeks in hospital.

The offences are serious. He is not a first offender, although the two previous convictions had no element of violence. The two counts were taken together for the purpose of sentencing. The magistrate also found that accused 1 in this matter, a minor, had been under the influence of the appellant.

11. The court is required to consider the cumulative effect of these factors. However, there are three factors or categories of factors that I think should be addressed especially.

12. Appellant's counsel claims incorrectly that the recommendations of the probation officer were ignored by the magistrate. The probation officer dismissed a fine or correctional supervision as punishment, recommending imprisonment.

13. In respect of the personal circumstances of the accused, the following passage from S v Vilakazi[5]  is relevant:

[l]n cases of serious crime the personal circumstances of the offender, by themselves, will necessarily recede into the background. Once it becomes clear that the crime is deserving of a substantial period of imprisonment the questions whether the accused is married or single, whether he has two children or three, whether or not he is in employment, are in themselves largely immaterial to what that period should be, and those seem to me to be the kind of 'flimsy' grounds that Ma/gas said should be avoided. But they are nonetheless relevant in another respect. A material consideration is whether the accused can be expected to offend again. While that can never be confidently predicted his or her circumstances might assist in making at least some assessment.

In Matyityi's [6] case the SCA found that the respondent's age of 27 could not be assumed to be a mitigating factor. The court held that anyone over the age of 20 must show by acceptable evidence that s/he was immature to such an extent that his/her immaturity operated as a mitigating factor.

I consider the personal circumstances of the appellant to be a neutral factor.

14. In respect of the time spent in custody, the matter is more complicated. The SCA has considered this issue in a number of recent cases: S v Vifakazi[7], S v Kruger[8], S v Dlamini[9] and S v Radebe [10]

15. In the  recent  case  of  S  v  Mqabi [11] Spilg  J  (with  whom  Vally  J concurred)  summarised  the  principles emanating  from these SCA judgments as follows in paras 38 and 39:

(a)    Pre-sentence detention is a factor to be taken into account when considering the presence or absence of substantial and compelling circumstances for the purposes of s 51 of the CLAA ( Radebe, Dlamini et al);

(b)      such period of detention is not to be isolated as a substantial and compelling circumstance. It must be weighed as a mitigating factor, together with all the other mitigating and aggravating factors, in determining whether the effective minimum period of imprisonment to be imposed is justified in the sense of it being proportionate to the crime committed. If it is not, then the want of proportionality constitutes the substantial and compelling circumstance required under s 51(3) ( Radebe at para 14);

(c)      the reason for the prolonged period of pre-sentence detention is a factor. If the offender was responsible for unnecessary delays then that may redound to his detriment ( Radebe);

(d)       there is no mechanical formula or rule of thumb to determine the period by which a sentence is to be reduced. The specific circumstances of the offender, which may include the conditions

of his detention, are to be assessed in each case when determining the extent to which the proposed sentence should be reduced (Radebe at para 13);

(e)      where only one serious offence is committed, and assuming that the offender has not been responsible for unduly delaying the trial (Radebe at para 14), then a court may more readily reduce the sentence by the actual period in detention prior to sentencing. (Dlamini and Vilakaz1).

The question that appears to have been left open by Radebe is the weight to be attached to the pre-sentence period in detention. In this regard:

(a)     The high store place by Vilikazi on a lengthy period of pre­ sentence detention, amounting to unfairness if not taken into account, remains a vital consideration.

(b)   A further consideration is the difference in conditions of detention between an inmate detained in custody ('remand detainee') and a sentenced offender

16. Parole is another factor, according to the court:

Offenders who have spent a substantial period of time in pre­ sentence detention might be discriminated against, and therefore treated unequally, because they would not only be deprived of their freedom for a much longer period but would also be eligible for parole only at a much later stage. In this regard it should be borne in mind that their entire period of incarceration was as a sole consequence of the crime (albeit that it was not proven at the time of the detention).

The grant of bail may also be influenced by other discriminatory facts such as financial and social status

17. In this case, the appellant had been in custody for almost 16 months at the time of sentencing. I have applied my mind to all the considerations outlined by Spilg J above. In my opinion, the pre-sentence period of incarceration is not a determinative mitigating  factor in this case, particularly considering that the two offences, both serious, were taken together for purpose of sentencing.

18. Proportionality requires careful balancing of the personal circumstances of the accused, the interests of society and the nature of the offence.

19. All in all, I am of the opinion that the aggravating factors outweigh the mitigating factors. In the result, I find no substantial and compelling circumstances.

20. The appeal against sentence is dismissed.

_____________________

OLIVIER, AJ ACTING

JUDGE OF THE HIGH COURT

I agree and it is so ordered.

________________________

HUGHES, J

JUDGE OF THE HIGH COURT

---