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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(NORTH GAUTENG HIGH COURT, PRETORIA) 

                                                           Case Number:  A 87/2019

12/10/2020

In the matter between:

In the matter of:
Donald Rametsi                                                                            Appellant

And

The State                                                                                      Respondent

JUDGMENT

Maumela J.

INTRODUCTION.

1.    The appellant appeared before the Regional Court for the Regional Division of Gauteng, held at Pretoria. He was arraigned on the following charges:
Count 1. Assault with the intent to commit housebreaking;
Count 2. Housebreaking with the intent to rob and robbery with
               aggravating circumstances read with section 1 of the
               Criminal Procedure Act, Act 51 of 1977;
Count 3. Count 3:  Kidnapping;
Count 4. Unlawful possession of a firearm in contravention of
               section 3 of the Firearms Control Act, Act 60 of 2000;
Count 5. Contravention of section 90 of the Firearms Control
               Act, Act 60 of 2000.

2.    The appellant pleaded not guilty to all the charges. The state called witnesses. The Appellant testified in his own defence. On the 16^th of August 2012, the Appellant was convicted on counts 2 and 3. The minimum sentence legislation in terms of section 51(2) of Act 105 of 1997 became applicable. Appellant was then sentenced as follows:
On Count 2; he was sentenced to undergo 12 year’s
                    imprisonment.
On Count 3; he was sentenced to undergo 3 year’s
                    imprisonment.
The court a quo ordered the sentence on count 3 to run concurrently with the sentence on count 2. As such, the effective sentence imposed became 12 year’s imprisonment.

CONDONATION.

3.    The appellant made the point a Covid-19 pandemic subsisted world-wide. As a result, the President of the Republic of South Africa announced a state of emergency and a concomitant state of lockdown which applied countrywide. His counsel had to employ make-shift arrangements and to set up an office at home. This resulted in difficulties where it regards consultation. As a result, his counsel became unable to consult and to obtain proper instructions. No opposition to condonation was made and as such, condonation is hereby granted. The court has to determine the appropriateness or otherwise of the sentence imposed upon the appellant. On the 24^th of October 2018, the Regional Court Magistrate granted the appellant leave to appeal against sentence only. The court is to determine the success or otherwise of the appeal brought by the appellant against sentence.

EVIDENCE.

4.  The complainant in this case testified that on the 3^rd of August 2006, he was robbed by the appellant and 2 accomplices. He said that he was robbed of his firearm and ammunition, a jacket, shoes, a wristwatch, keys and his wallet. He stated that he was accosted outside his house when he returned from work whereupon he was forced into his home at knife point. He said that at that time, his domestic helper, Sara, was cleaning a flat that is also on the premises.

5.    The complainant testified that his assailants were armed with a knife and a screwdriver. He said that he was assaulted during the robbery and that his attackers tied him up whilst they removed the firearm and ammunition from the safe and when they took the other items mentioned above out of the house. He said that he remained tied up until a Police Officer eventually freed him.

6.    It is trite that in considering the sentence to be imposed, Courts have to take into consideration what has come to be known as the triad of sentencing. In the case of S v Zinn^[1], the court stated that in imposing the sentence, the court has to take into consideration the crime committed, the interests of the accused and the interest of the community.

7.    It was submitted on behalf of the appellant that he is single. He dropped out of high school and after the death of his mother, he became involved with friends that had a bad influence on him. The court a quo also considered the period the appellant spent in custody before sentence and it found compelling and substantial circumstances to be present. For that reason, in the consideration of sentence against the appellant, the court a quo did not apply the provisions of the prescribed minimum sentence legislation. For that reason, the effective term of imprisonment imposed upon the appellant became 12 years’ imprisonment. 

8.  It is trite law that imposition of sentence is primarily a factor for the discretion of the trial court and that the court of appeal may only interfere with the sentence imposed, where it is disturbingly inappropriate or totally out of proportion to the gravity or magnitude of the offence. The appeal court may also interfere where the sentence imposed is sufficiently disparate or is vitiated by misdirection of a nature which shows that the trial court did not exercise its discretion reasonably.

9.    In the case of S v Salzvedel and Others^[2], the court stated the following: “An Appeal court is entitled to interfere with a sentence imposed by a trial court in a case where the sentence is “disturbingly inappropriate”, or totally out of proportion to the gravity or magnitude of the offence, or sufficiently disparate, or vitiated by misdirection of a nature which shows that the trial court did not exercise its discretion reasonably.”^[3] the court held further as follows: “[t]he over-emphasis of the effect of the appellant’s crimes, and the underestimation of the person of the appellant, constitutes . . a misdirection and in the result the sentence should be set aside.”^[4]

10.   It was submitted on behalf of the appellant that although the court a quo considered the personal circumstances of the appellant, it committed a material misdirection in that it did not duly consider the dire circumstances surrounding his personal background; particularly his upbringing and lack of parental guidance. It was also submitted on behalf of the appellant that the court a quo underscored the factual matrix of the case and more particularly failed to strike a constitutionally fair balance between the applicable competing interests obtained. In that regard, it was submitted on behalf of the appellant that the court a quo failed to properly weigh the nature and seriousness of the crime, weighed against the personal circumstances of the appellant against the interests of justice.

11.   The applicant also contends that the court a quo overly emphasised the adverse recommendations of the probation officer’s report and more particularly relied heavily on the expression of a lack of remorse on behalf of the appellant. It was argued on behalf of the appellant that the circumstances under which he was brought up rendered it difficult for him to refrain from committing crime because of poverty and lack of opportunities in life. It was contended that the court a quo should have led further evidence on the extent to which the circumstances under which he was broader influenced his conduct.

12.   It was also submitted that the fact that the Appellant did not express contrition does not necessarily imply that he is not remorseful about the crimes he committed. It was submitted that while the offenses of which the appellant stands convicted are of a serious nature, the severity of the sentence imposed shall hinder him from getting properly rehabilitated, so that prospects obtain that after serving the sentence, he shall emerge worse-off, having served a very long sentence.

13.   The appellant views that the court a quo ought to have taken into consideration the fact that in the week before the sentence here in and the focus, he had been sentenced to a term of seven years’ direct imprisonment. It was submitted on appellant’s behalf that the court a quo ought to have taken into consideration the fact that the cumulative effect of the direct imprisonment imposed before, and the sentence imposed in the case herein result in an overly harsh sentence brought to bear against the Appellant. And this was sufficiently brought to the court’s attention.

14.   The appellant concedes that the court a quo correctly held that substantial and compelling circumstances are not attendant to his person and that therefore the minimum sentence legislation ought to be applicable in the determination of sentence against him. However, he argues that considering the harshness occasioned by the cumulative effect of the sentences imposed, the court a quo ought to have taken particular note and therefore ought to have imposed a lighter sentence as compared to what it did.

15.   The appellant argues that there is dissimilarity between the offense for which he was sentenced before, and the sentence imposed in this case; the court a quo ought to have considered that the tally of the two sentences results in undue harshness being brought to bear against the Appellant. In the case of S v Pase^[5], the court stated the following: “It is not a requirement that the sentencing court has to find that there should be a connection or similarity between the offences in respect of which the sentences are ordered to run concurrently.”

16.   In the case of S v Malgas^[6], the court stated the following concerning the application of prescribed minimum sentences: “Courts are required to approach the imposition of sentence conscious that the Legislature has ordained life imprisonment (or the particular prescribed period of imprisonment) as the sentence that should ordinarily and in the absence of weighty justification be imposed for the listed crimes in the specified circumstances. Unless there are, and can be seen to be, truly convincing reasons for a different response, the crimes in question are therefore required to elicit a severe, standardised and consistent response from the courts. The specified sentences are not to be departed from lightly and for flimsy reasons. Speculative hypotheses favourable to the offender, undue sympathy, aversion to imprisoning first offenders, personal doubts as to the efficacy of the policy underlying the legislation and marginal differences in personal circumstances or degrees of participation between co-offenders are to be excluded. The Legislature has, however, deliberately left it to the courts to decide whether the circumstances of any particular case call for a departure from the prescribed sentence. All factors (other than those set out above) traditionally taken into account in sentencing (whether or not they diminish moral guilt) thus continue to play a role; none is excluded at the outset from consideration in the sentencing process. While the emphasis has shifted to the objective gravity of the type of crime and the need for effective sanctions against it, this does not mean that all other considerations are to be ignored. The ultimate impact of all the circumstances relevant to sentencing must be measured against the composite yardstick ('substantial and compelling') and must be such as cumulatively justify a departure from the standardised response that the Legislature has ordained.” 

17.   It was submitted that the court a quo ought to have considered and ordered that the sentences imposed on counts 2 and 4 run concurrently with the sentence of 6 years’ imprisonment that was previously imposed against him. It was submitted that an effective term of imprisonment for 12 years in respect of all offenses would have been an appropriate sentence. The Respondent submits that the sentence imposed upon the Appellant does not induce a sense of shock, much as it is not startlingly inappropriate. The respondent contends that the appeal ought to be dismissed.

18.   In considering the sentence to be imposed, the court a quo took the following aggravating factors into consideration:
18.1. That the accused was not a first offender;
18.2. Prevalence and seriousness of the offence;
18.3. The level of violent crime in the country;
18.4. The interest of society, particularly the need to protect the
         society against ravages that criminality causes against
         innocent members of the society;
18.5. Value of the property stolen;
18.6. Lack of contrition, to which the probation officer also
         made reference
18.7. That the crime was planned and committed in broad
         daylight;
18.8. The propensity of the appellant to commit these type of
         offences and
18.9. The vulnerability of the complainant who was a 62 year
         old male at the time he was robbed.

19.   The court a quo also took into consideration the effect of the offenses on the complainant and his domestic helper; Sarah. It also took into consideration that the complainant was attacked in the sanctity of his home, where he was supposed to feel safe. It was submitted therefore that there are more factors aggravating sentences than there are factors mitigating. It was submitted therefore that the appellants  appeal against sentence should be dismissed.

20.   The court has to determine the success or otherwise of this appeal against the sentence brought by the appellant. In the case of S v Malgas^[7], in paragraph [12], the court stated:  
“[12] The mental process in which courts engage when considering questions of sentence depends upon the task at hand. Subject, of course, to any limitations imposed by legislation or binding judicial precedent, a trial court will consider the particular circumstances of the case in the light of the well-known triad of factors relevant to the sentence and impose what it considers to be a just and appropriate sentence. A Court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court. Where material misdirection by the trial court vitiates its exercise of that discretion, an appellate Court is of course entitled to consider the question of sentence afresh. In doing so, it assesses the sentence as if it were a court of first instance and the sentence imposed by the trial court has no relevance. As it is said, an appellate Court is at large. However, even in the absence of material misdirection, an appellate Court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate Court would have imposed had it been the trial court is so marked that it can properly be described as 'shocking', 'startling' or 'disturbingly inappropriate'. It must be emphasized that in the latter situation the appellate Court is not at large in the sense in which it is at large in the former. In the latter situation it may not substitute the sentence which it thinks appropriate merely because it does not accord with the sentence imposed by the trial court or because it prefers it to that sentence. It may do so only where the difference is so substantial that it attracts epithets of the kind I have mentioned. No such limitation exists in the former situation.”

21.   The court finds that the court a quo did take the personal circumstances of the appellant into consideration, hence it did not impose on him the prescribed minimum sentence. The offense of which the appellant stands convicted is serious, much as it is rife. It ought to be heeded that the court is not at liberty to interfere with the sentence imposed by the court a quo merely because it could have imposed a different sentence as compared to what was imposed by the court a quo. 

22.   The court into consideration the following:
22.1. The seriousness of the offense,
22.2. The measure to which the crimes are rife,
22.3. The effect of the crimes on the victims,
22.4. That at the time of the perpetration of the crimes, the
         culprits were armed with a knife and a screwdriver,
22.5. That the victim in the robbery charge is an elderly, and
         therefore, a vulnerable person.

23.   The court finds that there is no basis upon which to interfere with the sentence imposed upon the appellant by the court a quo. Therefore, the appeal by the appellant against sentence stands to be dismissed and the following order is made:

ORDER.

1. The appeal against sentence is dismissed.

Maumela J
Judge of the High Court of South Africa

 

I agree

 

 

Ranchod J

Judge of the High Court of South Africa

 

 

REFERENCES

 

For the Appellant:                    Adv. F Pistorius SC

Instructed by:

 

For the Respondent:                Adv. M J Van Vuuren

Instructed by:                           Director of Public Prosecutions

 

 

 

 

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