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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

CASE NO: CC37/2008

DATES HEARD: 31/3/08-4/4/08

DATE DELIVERED: 9/4/08

NOT REPORTABLE

In the matter between:

THE STATE

and

BRUCE KHONA

SENTENCE

PLASKET J

[1] I convicted the accused of robbery with aggravating circumstances. I must now sentence him for his crime. In so doing, and this is well-established law, I must take into account ‘the triad consisting of the crime, the offender and the interests of society’ (S v Zinn 1969 (2) SA 537 (A), 540G-H).

[2] The crime committed by the accused was an undoubtedly serious one. He and a companion armed themselves with a knife and a screw-driver. They entered the complainant’s home, attacked him with those dangerous weapons as he lay on a couch and threatened to slit his throat. They inflicted injuries on him with the knife and the screwdriver. Although none of the injuries were serious, that is probably due to good fortune rather than design on the part of the robbers.

[3] The complainant was tied up with ropes. His house was ransacked. The accused and his companion – who had initially been looking for firearms – stole a range of items of significant value: they took such items as an amplifier, a tape recorder, radio, a CD player, a DVD player, a cellphone, cash to the value of R400.00 and a 12 volt battery. They also took alcohol, meat, a large carving knife and running shoes. They loaded their swag into the complainant’s Volkswagen Jetta and left in it.

[4] They did not get far. A kilometre or two away from the scene of the robbery, the accused lost control of the vehicle. It plunged into an irrigation canal, landing on its roof in the water. Certain of the items stolen by the accused and his companion were recovered from the vehicle, but other items, such as the carving knife, were never recovered. The complainant testified that the vehicle was valued at R35 000.00. It was not insured. He sold it, after it had been recovered from the irrigation canal, for R5 000.00, thus suffering a loss of R30 000.00.

[5] The fact that most of the stolen items were recovered can hardly accrue to the benefit of the accused. First, the fact that the vehicle was recovered was probably cold comfort for the complainant given the state in which it was recovered. Secondly, the remaining items that were recovered were recovered not as a result of the accused giving them up but because the accused could not drive a vehicle properly and lost control of it, forcing him and his companion to flee with very little.

[6] The facts that I have set out all point to the robbery being a serious one even if the complainant was not seriously injured: his home – where he was entitled to feel safe and secure – was invaded by the robbers; he was attacked and injured, albeit superficially, with dangerous weapons; he was threatened with death; he was tied up; his home was ransacked; his goods were stolen; and his motor vehicle was taken and as good as destroyed.

[7] The accused is 25 years old. He has passed matric at school and was studying to be a minister of religion at the time that the offence was committed. He also, apparently, visits prisons where he preaches to prisoners and he also lectures to children on the dangers of crime.

[8] He is self-employed. He works as a fashion designer and also sews and mends garments. He earned in the region of R4000.00 per month.

[9] He is single. He is the father of a child who is about three months old. He lived with his mother and his aunt and provided for them.

[10] The accused has two previous convictions. He was sentenced to 12 years imprisonment for robbery on 29 May 2002, as well as to two years imprisonment, on the same day, for the unlawful possession of a firearm. On 13 May 2003, however, this court altered his sentence on appeal to seven years imprisonment for the robbery, and it ordered that the sentence for the unlawful possession of a fire-arm was to run concurrently with that sentence.

[11] I was informed by Mr Henning for the State, and this was confirmed by the accused, that the accused was released on parole on 16 October 2006 and that his parole expires on 28 November 2008. When he committed the robbery in this case, therefore, he had been released from prison for little over a year and was still on parole.

[12] I consider the previous conviction for robbery and the fact that the accused committed a further robbery within a little more than a year of being released on parole, and while still on parole, to be aggravating factors.

[13] I agree with Mr Henning that the fact that the accused committed a serious crime of violence while studying to be a minister of religion points to a serious flaw in his personality.

[14] I turn now to the interests of society. I do not believe that it can be gain-said that the overwhelming majority of South Africans – who are honest, law abiding citizens – are sick and tired of the levels of crime – particularly violent crime – that blight our country and hamper its development, both social and economic.

[15] In recognition of that as well as to deter others from engaging in criminal conduct, the legislature has seen fit to prescribe minimum sentences for a number of crimes of violence, including the crime of robbery with aggravating circumstances. This was recognised by Marais JA in S v Malgas 2001 (1) SACR 469 (SCA) at paragraph 7 when he said of the reasons for the introduction of the Criminal Law Amendment Act 105 of 1997, which introduced these minimum sentences:

‘That situation was and remains notorious: an alarming burgeoning in the commission of crimes of the kind specified resulting in the government, the police, prosecutors and the courts constantly being exhorted to use their best efforts to stem the tide of criminality which threatened and continues to threaten to engulf society. It was of course open to the High Courts even prior to the enactment of the amending legislation to impose life imprisonment in the free exercise of their discretion. The very fact that this amending legislation has been enacted indicates that Parliament was not content with that and that it was no longer to be “business as usual” when sentencing for the commission of the specified crimes.’

[16] The learned judge of appeal then proceeded to set out why, in the case of offences mentioned in the Act, it was no longer ‘business as usual’. He stated, at paragraph 8, that a court was no longer given ‘a clean slate on which to inscribe whatever sentence it thought fit’ but was required to approach the question of sentence on the basis that the prescribed sentence was the sentence ‘which should ordinarily be imposed for the commission of the listed crimes in the specified circumstances’. In this way, Parliament ‘aimed at ensuring a severe, standardised, and consistent response from the courts to the commission of such crimes unless there were, and could be seen to be, truly convincing reasons for a different response’. This reflected, the learned judge of appeal held, a change of emphasis to ‘the objective gravity of the type of crime and the public’s need for effective sanctions against it’.

[17] Section 51(2) of the Criminal Law Amendment Act, read with Part II of Schedule 2 provide that for the crime of robbery with aggravating circumstances the minimum sentence is 15 years imprisonment for a first offender, 20 years for a second offender and 25 years for a third offender.

[18] The section makes it clear when it refers to second and third offenders that it means those who have been convicted previously of robbery with aggravating circumstances, and not merely of robbery. (See S v Busakwe ECD (case no. CA &R 839/02) unreported.) In this case, as in the Busakwe matter, the SAP 69 records the accused’s previous conviction as robbery. As a result, the minimum sentence that applies to him, in the absence of substantial and compelling circumstances, is 15 years imprisonment.

[19] I have set out the nature and the gravity of the offence, the personal circumstances of the accused and considered the interests of society. From these considerations, I can find nothing that constitutes substantial and compelling circumstances. There is no factor or set of factors taken cumulatively that justify a downward departure from the minimum prescribed sentence. Instead, in the personal circumstances of the accused and the objective gravity of his conduct are to be found factors that militate in favour of a sentence in excess of the minimum.

[20] I think, in particular, of the fact that the accused has been convicted of robbery and that he committed the offence in this case while on parole. This indicates that the accused is a person who has not learnt the lesson that the sentence in that case was meant to teach him and who has spurned the opportunity of mending his ways that his release on parole gave him.

[21] When this, the seriousness of the offence and society’s interest in being protected from rapacious criminals like the accused are taken into account and placed in the scales, a sentence of 18 years imprisonment is, in my view, justified.

[22] The accused is accordingly sentenced to 18 years imprisonment.

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C. PLASKET

JUDGE OF THE HIGH COURT

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