Ngcani v S (CA&R 33/09) [2009] ZAECGHC 71 (4 November 2009)

FORM A

FILING SHEET FOR EASTERN CAPE HIGH COURT, GRAHAMSTOWN JUDGMENT

ECJ:

PARTIES:

MTHUTHUZELI NGCANI

And

THE

STATE

Registrar: CA&R 33/09

Magistrate:

High Court: EASTERN CAPE HIGH COURT, GRAHAMSTOWN

DATE HEARD: 14/10/09

DATE DELIVERED: 04/11/09

JUDGE(S):

JONES J, MAKAULA AJ

LEGAL REPRESENTATIVES –

Appearances:

for the Appellant(s): ADV: J. Van der Spuy

for the Respondent(s): ADV: Z. Mdolomba

Instructing attorneys:

for the Appellant(s): LEGAL AID BOARD (P.E.)

for the Respondent(s):

DIRECTOR OF PUBLIC PROSECUTION (GHT)

CASE INFORMATION -

Nature of proceedings :

APPEAL

Not reportable

THE

HIGH COURT OF SOUTH AFRICA

In the Eastern Cape High Court

Grahamstown

CA&R 33/09

In the matter between

MTHUTHUZELI NGCANI Appellant

and

THE STATE Respondent

Coram

JONES J and MAKAULA AJ

Summary Appeal – sentence – housebreaking with intent to rob and robbery read with the provisions of the Criminal Law Amendment Act No 105 of 1997 which prescribe a mandatory sentence of 15 years’ imprisonment – whether the trial court erred in finding that there were no

substantial and compelling circumstances in terms of section 51 (3) of Act 105 of 1997 which justified a lesser sentence – no basis for departing from the trial courts findings of fact and the exercise of his discretion on sentence – sentence confirmed.

JUDGMENT

JONES J

[1] The appellant was convicted in the regional court, Port Elizabeth, of housebreaking with intent to commit robbery and robbery. The case against him was that he and three companions broke into the home of the complainant in the early hours of 24 December 2006. They were armed with knives. They woke the complainant with the noise of their breaking and entry, and chased him with knives when he came to investigate. They confronted the complainant’s daughter who was awake and watching television in the sitting room while she was attending to her new-born baby. They threatened her with knives, and they threatened to rape her. They then robbed her of a DVD player worth R3900-00, a mobile telephone worth R599-00, R600-00 in cash, and about R2000’s worth of CDs and DVDs.

[2] The appellant was identified as one of the robbers. He was duly convicted. The court found that there were no substantial and

compelling circumstances which justified a lesser sentence than the 15 year imprisonment sentence prescribed by the Criminal Law Amendment Act No 105 of 1997. A sentence of 15 years’ imprisonment was imposed. The magistrate refused leave to appeal on both conviction and sentence, but the appellant was given leave to appeal on sentence following a petition to the Judge President. That appeal is now before us.

[3] An appeal such as this is governed by two well known principles. The first is that the court of appeal will not readily depart from the trial court’s findings of fact which form the basis of its sentence. The trial court has had the advantage of determining the true facts after seeing and hearing the witnesses.

For that reason its findings of fact and credibility are presumed to be correct, and the court of appeal will not readily depart from them unless they are vitiated by misdirection or unless a reading of the evidence shows without question that they are wrong (Rex v Dhlumayo 1948 (2) SA 677 (A) 705 and S v Francis 1991 (1) SACR 198 (A) 204C-F). The second principle is that a court of appeal has no general power to interfere with the sentence imposed by the trial court. The legislature has conferred the discretion to impose sentence on the trial court, not the court of appeal, and the

court of appeal may interfere only where the trial court has not exercised its discretion in a reasonable and judicial manner. This might arise where, for example its sentence is so grossly disproportionate or unreasonably excessive that it gives to the

inference that the trial court could not have applied its mind to the matter properly (S v Giannoulis 1975 (4) SA 867 (A) Holmes JA 868 and S v Kgosimore 1999 (2) SACR 238 (SCA) per Scott JA at 241 para [10].

[4] The obligation to impose a sentence prescribed by an Act of Parliament does not divest the imposition of sentence of its discretionary

nature. The discretion is circumscribed but not taken away by the legislation. The leading cases of S v Malgas 2001 (1) SACR 469 (SCA), S v Mahomotsa 2002 (2) SACR 435 (SCA), Rammoko v Director of Public Prosecutions 2003 (1) SACR 200 (SCA) and S v Vilakazi 2009 (1) SACR 552 (SCA) explain this at some length.

[5] In the present case, counsel for the appellant criticized the magistrate for not finding that the cumulative effect of the appellant’s

personal circumstances amounted to substantial and compelling circumstances within the meaning of section 51(3). These were

the appellant’s age – he was only 24 years old when the offence was committed;

though not a first offender, he had no previous convictions for crimes of violence;

he was gainfully employed at the time;

the victims of the robbery were not actually assaulted, and nobody was injured in the course of the robbery;

the general picture which emerged from the report of the probation officer and correctional supervision officer, which shows that

although the appellant comes from a deprived socio-economic background which offered him little chance in life, he is from a

good family and has the potential for rehabilitation.

[6] It is indeed so that in a number of cases these considerations have, on the facts, been regarded as sufficient for substantial and compelling circumstances, and that in this case the magistrate did not regard them as such. But that does not mean that he has misdirected himself. No factors can be regarded as substantial and compelling in themselves, in vacuo as it were, without measuring them against all the other considerations in the case which are relevant to sentence. One way of balancing

these considerations, for example, is the approach in the Vilakazi case supra. There, the appeal court considered (a) whether there were aggravating circumstances which would bring what was already an admittedly

serious crime within that category of case for which the prescribed sentence was appropriate, and (b) whether there were mitigating

features which might take it out of that category. It is necessary to make a balanced evaluation of all the relevant considerations taken as a whole, both aggravating and mitigatory, to see whether a lesser sentence1 than the prescribed minimum sentence would be a just and appropriate sentence in the circumstances. If a lesser sentence is a just

sentence, there is every reason to conclude that the prescribed sentence is disproportionately severe in the circumstances of the

case in hand. It should on that account not be imposed.

[7] I have already alluded to the considerations in this case which were put up as mitigating. The aggravating features which make an inherently serious crime worse were

the premeditated invasion of the sanctity of the complainant’s home, the one place where he, his daughter, and his infant grandchild were entitled to feel safe at night;

the decision to take knives with them, to brandish them, and, if necessary, to use them in order to commit the robbery;

the knowledge that the house was occupied when they broke into it, and that the occupants might have offered resistance; this gives rise to an inference of a pre-planned determination to overcome any such resistance with their weapons;

the use of the knives to frighten the complainant away; this was done with sufficient intensity to cause him to flee despite knowing that his daughter and her baby would be left without his protection;

the threat to rape and assault the complainant’s daughter.

[8] In these circumstances the magistrate cannot in my view be said to have erred in attaching little or no weight to the fact that no injuries were inflicted in the course of the robbery. The youth of the accused, and the absence of past misconduct showing a predisposition towards viciousness, do little to reduce the seriousness of the threats to rape the complainant’s daughter, and the serious acts of violence with which this housebreaking and robbery were committed. In the light of the total picture presented by all the facts I am left with the conclusion that a sentence of 15 years’ imprisonment is not out of proportion to the seriousness of the offence, and does not sacrifice the interests of the appellant in order to satisfy the concerns of society. It cannot be said to be an unjust sentence.

[9] In the result the appeal is dismissed.

RJW

JONES

Judge of the High Court

15 October 2009

MAKAULA

AJ I agree.

M

MAKAULA

Judge of the High Court (Acting)

1 This implies a lesser sentence in the sense of that phrase as used in section 51(3). It may be possible to say, for example, that a lesser sentence of 14½ years’ imprisonment is equally appropriate. But that kind of disparity is not ordinarily what is intended by the phrase ‘lesser sentence’ in the section.