S v Cela (CA&R 862/02) [2003] ZAECHC 15 (4 April 2003)

5

IN

THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

CASE NO. CA and R 862/02

In the matter between:

XOLANI CELA

APPELLANT

and

THE STATE

RESPONDENT

_________________JUDGMENT_____

PLASKET AJ:

[1] The appellant and a co-accused were convicted in the Regional Court, Humansdorp on charges of robbery with aggravating circumstances, unlawful possession of firearms and ammunition and kidnapping. The appellant was sentenced to an effective term of imprisonment of 31 years. The bulk of this sentence was the 25 year sentence imposed by the magistrate in respect of the robbery with aggravating circumstances. That sentence is the sole subject of this appeal.

[2] The magistrate’s reasons for imposing this sentence is captured in the following extract from his judgment:

‘As gevolg van druk deur die gemeenskap op die wetgewer is Wet no. 105 van 1997 op die wetboek geplaas wat sê dat ek sekere minimum vonnisse moet oplê tensy ek buitengewone omstandighede kan bevind waarom nie. Daar is geen sodanige omstandighede in hierdie aangeleentheid nie. Roof met ‘n vuurwapen is een van hierdie misdrywe waarvoor vonnisse voorgeskryf word. Wat die res van die klagtes betref het ek my eie diskresie. Ek is ook van oordeel dat die voorgeskrewe vonnisse glad nie onvanpas is in hierdie geval nie. Die wetgewer maak ook self onderskeid vir verskillende oortredings, tweede, derde oortredings, so uit die aard van die saak moet no. 1 swaarder as no. 2 gestraf word.‘

[3] Towards the end of his judgment the magistrate, after having sentenced the appellant in respect of the less serious charges and after imposing the sentence of 25 years imprisonment in respect of the charge of robbery with aggravating circumstances, stated that the appellant’s effective sentence would be 31 years imprisonment because ‘hy is ‘n derde oortreder’.

[4] It is clear from the above-cited passages from the magistrate’s judgment that he had intended to sentence the appellant in accordance with the provisions of s51(2)(a) of the Criminal Law Amendment Act 105 of 1997, read with the appropriate provisions of Part II of Schedule 2 of the Act.

[5] Section 51(2)(a) of the Act reads as follows:

‘Notwithstanding any other law but subject to subsections (3) and (6), a regional court or a High Court, including a High Court to which a matter has been referred under section 52 (1) for sentence, 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, in the case of-

a first offender, to imprisonment for a period not less than 15 years;

a second offender of any such offence, to imprisonment for a period not less than 20 years; and

a third or subsequent offender of any such offence, to imprisonment for a period not less than 25 years.’

In terms of Part II of Schedule 2, robbery is an offence that attracts the sentencing provisions of s51(2)(a) when ‘there are aggravating circumstances’1 or when the robbery involves ‘ the taking of a motor vehicle’.

[6] According to the terms of the appellant’s SAP 69 form, the appellant has been convicted on two previous occasions of robbery. The form does not indicate whether either or both of these convictions were ones in which aggravating circumstances were present or whether they involved the taking of a motor vehicle. In these circumstances, it could not be said that the appellant was a third offender for purposes of s51(2)(a) of the Act.2 It follows then that the magistrate misdirected himself in imposing the sentence that he did. It must be set aside and replaced with a competent sentence.

[7] There is no doubt that the robbery for which the appellant was convicted was a serious one. He and his co-accused, using firearms, robbed the complainant of a truck worth R380 000.00, carrying a load worth R30 000.00, and cash in the amount of R5 000.00.

[8] He appears to have shown no remorse, preferring, it would appear, to place the blame on fate for placing him in the circumstances in which he found himself. This is evident from a passage in his cross-examination by the prosecutor after he had conceded that he had committed the offences for which he had just been convicted while out of prison on parole. The passage reads:

‘En jy is nog op parool tot Oktober 2002. – Ja.

En jy staan al klaar weer hier. – Dit is nie iets wat ek self veroorsaak het Edelagbare. Elke keer as ek die huis verlaat ek bel hulle en die mense wat toesig oor my gehou het, ek het hulle gebel en gesê ek is oppad Kaap toe. Maar ongelukkig toe het dit nou gebeur die wat nou gemaak het dat ek myself nou hier vind.’

[9] The magistrate was correct in finding that there was little in the personal circumstances of the appellant that worked in his favour: although he has two young children and lives with his mother, he is not youthful, being 31 years of age at the time of the commission of the offence, and, apart from the two previous convictions for robbery, he has a further six previous convictions of relevance, being for theft, attempted theft, unlawful possession of firearms and ammunition and assault with intent to do grievous bodily harm.

[10] In these circumstances a stiff sentence is called for. I take the view that an appropriate sentence in respect of the robbery with aggravating circumstances is 20 years imprisonment.

[11] In the result, the appeal succeeds and the appellant’s sentence on count 1, the charge of robbery with aggravating circumstances, is set aside and replaced with a sentence of 20 years imprisonment, backdated to the date on which the appellant was sentenced, namely 27 May 2002.

_______

C Plasket

Acting Judge

I agree

______

M Jennett

Acting Judge President

1 The term ‘aggravating circumstances’ as it applies to the offence of robbery is defined in s1(1)(b) of the Criminal Procedure Act 51 of 1977 as a robbery in which s firearm or other dangerous weapon is wielded, grievous bodily harm is inflicted or grievous bodily harm is threatened.

2 See S v Busakwe ECD 31 March 2003 (case no. CA and R 839/02) unreported, paras 7-9.