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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
Not Reportable
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION – GRAHAMSTOWN
Case No: CA&R297/2013
In the matter between:
VUYO MADYO
Appellant
and
THE STATE
Respondent
APPEAL JUDGMENT
REVELAS J:
[1]
This appeal, with leave of the trial court, is against sentence only.
The
appellant
was
convicted,
despite
his
plea
of
not
guilty,
of
housebreaking with intent to steal and theft in the Regional Court in
Aliwal North. He was sentenced to ten years’ imprisonment. The case
against the appellant was that on the evening of 2 September 2008 and
at Steve Tshwete, Lady Grey, he broke into the house of the complainant
and stole from her a curtain, a flame stove, a pair of tackies, a pillow
case, a candle holder and a candle.
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[2]
The evidence accepted by the Regional Magistrate upon which he
convicted the appellant was briefly the following:
[3]
On the evening in question, the complainant was already in bed
when she heard the footsteps of someone outside her house. Initially she
thought it was just someone passing by. She soon realized, when she
heard someone fiddling with the door, that the person outside her house
was attempting to gain access to the house. She saw the person, who
later turned out to be the appellant, through the kitchen window.
[4]
She decided to flee from her home, but first had to find her shoes in
the bedroom.
When she looked up, the appellant was standing at her
bedroom window. She had to leave her house through another door, only
to realize that the appellant was already at that door, trying to get in.
She ran to the toilet to escape through the window there. As she opened
the window, the appellant was already there. She then closed the window,
whereupon the appellant smashed it with a stone.
Realizing that he
would finally succeed in breaking into the house through this window, she
left the toilet and locked its door from the outside. She presumably did
this to stall him, giving her an opportunity to escape, which she
fortunately managed to do. When she returned to her home the following
morning, having slept at her sister’s house, she established that the items
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mentioned above had been stolen. These items were later retrieved when
the police went to the accused’s house and found them there.
[5]
It was submitted on behalf of the appellant that the sentence
imposed by the magistrate was harsh and induced a sense of shock, and
that the magistrate had misdirected himself by overemphasizing the
seriousness of the offence and the appellant’s previous convictions at the
expense of the appellant.
[6]
The magistrate held that the most aggravating feature of this
offence was that the complainant was a female living alone in her house
when it was broken into. The magistrate’s approach in this regard is not
open to criticism. Undoubtedly the experience must have been a
frightening one for her. Her home, where she was entitled to feel safe,
was invaded in a brazen and brutish manner by the appellant as
described above. He made her a fugitive from her own home and violated
her right to privacy.
[7]
On the face of it, the term of ten years’ imprisonment imposed for a
conviction of housebreaking with the intention to steal and theft may
seem somewhat severe, but apart from the aggravating features of the
offence as set out above, the magistrate also took into account, and
properly so, that when the present matter was adjudicated, the appellant
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was already serving a sentence of three years’ imprisonment for
housebreaking imposed on 22 October 2008. The appellant also had four
previous convictions for housebreaking with intent to steal and theft of
which three were committed in 1988 (when he was only […..] old) and
one other in 1990. The appellant also had a previous conviction for
housebreaking with intent to commit robbery in 1992. His next conviction
was for rape in 2003. In 2005 he was convicted of both common assault
and assault to do grievous bodily harm, followed by a conviction for
possession of drugs in 2006. In 2008 he was convicted of malicious
damage to property, and also of the housebreaking charge in respect of
which he was serving the sentence of three years’ imprisonment referred
to above.
[8]
The magistrate considered the appellant’s lengthy criminal record
since 1988, and concluded that he should be removed from society for “a
substantial period of time” since he was of the view that the appellant
posed a threat to society. The appellant’s personal circumstances, which
the magistrate also took into account, were briefly that he was a twentysix-year old unemployed father of a small child. However, the magistrate
was mistaken about the appellant’s age which was thirty-five years at the
time.
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[10] The powers of a court of appeal to interfere with a sentence
imposed by the trial court are narrowly circumscribed. Various tests have
been formulated as to when a trial court may interfere.
These would
include:
“Whether the reasoning of the trial court is vitiated by misdirection or whether
the sentence imposed can be said to be startlingly inappropriate or to induce a
sense of shock or whether there is a striking disparity between the sentence
imposed and the sentence the Court of appeal would have imposed.
All these
formulations however are aimed at determining the same thing ; viz whether
there was a proper and reasonable exercise of the discretion bestowed upon the
court imposing sentence . . . . . either the discretion was properly and reasonably
exercised or it was not. If it was a Court of appeal has no power to interfere1”.
[11] The magistrate, in my view, properly and reasonably exercised his
sentencing discretion in this case and the sentence of ten years’
imprisonment imposed by him should be confirmed. The appeal should,
however, partially succeed in respect of one aspect.
The magistrate
ought to have ordered the sentence imposed in the present matter to run
concurrently with the sentence of three years’ imprisonment imposed in
2008 which the appellant was serving at the time.
[12] The magistrate furnished no reasons as to why he did not order the
two sentences to run concurrently in terms of section 280 of the Criminal
1
Per Scott JA in S v Kgosimore 1999(2) SACR 238 (SCA) at 241 para 241. See also: Attorney-General, Venda v
Maranga 1992(2) SACR 594 (v) 605i-609e, 607d.
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Procedure Act, 51 of 1977 (“The Act”).
I assume he either viewed the
appellant’s substantial criminal record as too serious, particularly his
previous convictions for housebreaking, or it was an oversight.
[13] The provisions of section 280 (1) and (2) read as follows:
“(1)
When a person is at any trial convicted of two or more offences or when a
person under sentence or undergoing sentence is convicted of another offence,
the court may sentence him to such several punishments for such offences or, as
the case may be, to the punishment for such other offence, as the court is
competent to impose.
(2)
Such punishments, when consisting of imprisonment, shall commence the
one after the expiration, setting aside or remission of the other, in such order as
the court
may direct, unless the court
directs that
such
sentences
of
imprisonment shall run concurrently”.
[14] Section 280 (2) of the Act provides a sentencing court with a
discretion (when sentencing an accused already serving a sentence or
where there are multiple convictions), to make an order that such
sentences run concurrently.
In the absence of such an order, the
sentences will run consecutively. There are a number of reasons which a
sentencing court can legitimately take into account in this regard.
One
such ground is the cumulative effect of such sentences and whether it is
proportional to the offence committed. Only if the court a quo committed
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a misdirection or exercised its discretion improperly or injudiciously can a
court of appeal interfere a court’s decision not to order the sentences to
run concurrently.
(S v Mokela 2012 (1) SACR 431 paragraph [10], at
435i-436b).
[15] The magistrate was entitled to regard the appellant’s considerable
criminal record as an aggravating circumstance, but it must be pointed
out that most of the appellant’s previous convictions for housebreaking
date back to more than ten years. In addition, during the period between
1992 and 2003 (eleven years), the appellant was not convicted of any
crimes. It may be that the appellant was incarcerated during that period,
but there was no evidence to that effect before the magistrate.
These
aspects of the appellant’s criminal record were not properly considered
and simply never raised.
In my view, the cumulative effect of the two
sentences imposed (thirteen years) is disproportional to the offence the
appellant was convicted of and therefore too harsh. An order that the
sentences in question run concurrently ought to have been made in the
aforesaid circumstances.
[16] In the result, the following order is made:
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1.
The sentence of ten (10) years’ imprisonment imposed by the
magistrate is confirmed and is amplified by an additional order
which reads:
“The sentence of ten (10) years’ imprisonment imposed in this
matter is to be served concurrently with the sentence of three (3)
years’ imprisonment imposed on 22 October 2008, which is
presently being served by the accused”.
2.
The sentence hereby substituted, is antedated to 29 October 2009.
_______________
E REVELAS
Judge of the High Court
Hartle J:
I agree.
______________
B HARTLE
Judge of the High Court
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Counsel for the Appellant:
Adv MM Xozwa
Justice Centre
Grahamstown
Counsel for the Respondent:
Adv SS Mtsila
Director of Public Prosecutions
Grahamstown
Date Heard:
12 March 2014
Date Delivered:
26 March 2014