IN
THE SUPREME COURT OF NAMIBIA

versus

CORAM: Teek,
A.J.A., Gibson, A.J.A. et Maritz, A.J.A.

HEARD
ON: 1999/10/01

DELIVERED ON: 2003/02/13

APPEAL JUDGMENT

MARITZ,
A.J.A.: This appeal by the State is against the judgment of the
Full Bench of the High Court which upheld the respondent’s appeal
against the sentences imposed on him by the trial Court. The
respondent (to whom I shall henceforth refer to as the “accused”)
was convicted by the trial Court on counts of murder and robbery, the
latter with aggravating circumstances present. On the count of
murder, the Court sentenced him to life imprisonment and on that of
robbery to 15 years imprisonment. It also ordered that the latter
sentence would run concurrently with the former. Those sentences
were set aside and substituted on appeal with the following: On the
count of murder, 16 years imprisonment and on that of robbery, one
year imprisonment to be served concurrently with the sentence of 16
years imprisonment. Aggrieved by, what it regards as, an unjustified
interference with the sentencing discretion of the trial Court and
the disturbing leniency of the substituted sentences imposed by the
Full Bench, the State moved an application for, and obtained leave to
appeal to this Court in terms of section 316(1A)(a) of the Criminal
Procedure Act, 1977.

Both
crimes were committed in the course of, what started off as, a
daylight mugging on Windhoek’s main street. The facts found by the
trial Court are not in issue for purposes of this appeal. The accused
was one of a group of four who roamed the streets of Windhoek on that
fateful day. One of them stole a 30 cm-long kitchen knife from a
local retailer, wrapped it in a newspaper and eventually handed it to
the accused who hid it inside his trousers. Later that same day, they
came across Mr Andreas Uzigo. The accused snatched Mr Uzigo’s
sunglasses from his face and passed it to another in the group.
Within seconds, his co-accused made off with it. Mr Uzigo accosted
the accused and demanded the return of his sunglasses. The accused
suddenly took the knife (still wrapped in the newspaper) out of his
trousers, stabbed Mr Uzigo in the throat and ran off. The knife
penetrated 6cm into the soft tissue on the right hand side of his
throat, partially severed his left carotid artery and jugular vein
and caused his death by exsanguination.

Disregarding
for the moment those parts that features prominently in appeal, with
which I shall deal with hereunder in more detail, the trial Judge
referred in his judgment on sentence to the brutal and cowardly
assault on and murder of the deceased; the accused’s contemptuous
disregard for the forces of law and order by committing the crimes in
broad daylight in the center of town whilst out on parole; his
previous convictions of theft and malicious damage to property; his
persistent dishonesty during all stages of the trial; the absence of
genuine feelings of remorse or contrition; the severity and
increasing prevalence of the crimes in question; the public outcry
against crimes of that nature and the repeated warnings issued by the
courts that those offenders would be punished severely.

These
are all aggravating considerations which are compelling and must be
accorded due weight in the determination of an appropriate sentence.
Precisely what the comparative weight thereof should be when measured
against factors advanced in mitigation and what emphasis should be
given to them as part of the interrelated components of Zinn’s
oft-applied triad in designing a fitting sentence to meet the
objectives of punishment, falls pre-eminently within the sentencing
discretion of the trial Court. Steeped in the atmosphere of the case,
exposed to the emotions and demeanour of victims and perpetrators
alike, alert to local circumstances such as prevalence and the
community’s legitimate interests in a fair and just judicial
response to the crimes in question, the trial Judge is normally
better positioned to tailor a fitting sentence than a Court of appeal
which has but a transcript of the record to judge the matter. For
these reasons a Court sitting on appeal against sentence will accord
the trial Court a significant degree of appreciation in the exercise
of its sentencing discretion. It will not interfere with the
sentence imposed on insignificant grounds or merely because it would
have imposed a different sentence had it been the Court of first
instance. It will only do so if it is satisfied that the trial Judge
has failed to exercise his or her sentencing discretion judicially or
properly. This principle is trite in law and has been stated and
restated in numerous cases by this and other Courts in the region
(c.f. S v Gaseb and Others, 2001 (1) SACR 438 (NmS) at 465B-C;
S v Shikunga and Another, 2000 (1) SA 616 (NmS) at
631G; S v Van Wyk, 1992 (1) SACR 147 (NmS) at 165D; S v
Pieters, 1987(3) SA 717 (A) at 727G-728C). The Full Bench also
recognised this principle when it dealt with the appeal a quo
but, for reasons I shall presently refer to, concluded that it was
nevertheless at liberty to interfere and ameliorate the severity of
the imposed sentences.

Whether
or not such interference was justified in law is the principal issue
in this appeal. Given the exigencies of practice and multiplicity of
circumstances unique to each case, there may not be a numerus
clausus of specific instances exhaustively defining when a trial
Court has acted injudiciously or improperly, but, reduced to its bare
essence, the measure is clear: “The test …is whether the sentence
is vitiated by irregularity or misdirection or is disturbingly
inappropriate.” (per Holmes JA in S v Rabie, 1975
(4) SA 855 (A) at 857E). By judicial precedent the Courts have
expounded thereon and justified interference on appeal if a trial
Court has committed a misdirection of fact or law which by its
nature, degree or seriousness is such “that it shows, directly or
inferentially that the Court did not exercise its discretion at all
or exercised it improperly or unreasonably” (see: S v Pillay,
1977(4) SA 531 (A) at 535D-G); if a material irregularity has
occurred in the proceedings (S v Tjiho, 1991 NR 361 at 366B);
if the sentence is manifestly inappropriate given the gravity of the
offence and induces a sense of shock (S v Salzwedel and Others,
2000 (1) SA 786 (SCA) 790D–E) or a patent and disturbing
disparity exists between the sentence that was imposed and the
sentence that the Court of appeal would have imposed had it been the
Court of first instance (S v Van Wyk, 1992 (1) SACR 147
(Nm) at 165d-g; S v Petkar, 1988 (3) SA 571 (A) at
574C); if there has been an overemphasis of one of the triad of
sentencing interests at the expense of another (S v Zinn 1969
(2) SA 537 (A) at 540F – G and S v Salzwedel and Others,
supra at 790F) or if there has been such an excessive devotion
to further a particular sentencing objective that others are obscured
(S v Maseko, 1982 (1) SA 99 (A) at 102F).

The
accused attacked the appropriateness of his sentence on virtually all
these grounds a quo and the Full Bench agreed with him on
most. It held that the trial Court misdirected itself on the facts;
that it overemphasised the seriousness of the crimes; that it
accentuated the deterrent and retributive aspects of punishment at
the expense of other penal objectives; that the sentences are so
disturbingly severe in the circumstances that they induce a sense of
shock and that there is such a striking disparity between the
sentences imposed by the trial Court and those which the Court a
quo would have imposed that the sentences should be substituted.

The
misdirections of fact attributed to the trial Judge are these: That
the appellant was a member of a gang that walked the streets, entered
shops and robbed people; that it was almost a daily occurrence for
people to be assaulted and have their spectacles stolen and that it
was the appellant’s and his friends’ modus operandi to
roam around armed with knifes which were to be used to subdue their
unsuspecting victims. The Court held that there was no evidential
basis on which the trial Judge could have properly and justifiably
drawn those inferences and that the trial Judge “unconsciously
projected his own feelings or views as facts”, and punished the
accused accordingly.

Had
the trial Judge made those findings in his judgment on sentence, the
criticism that they were without evidential basis might well have
been justified. A reading of his judgment on sentence shows, however
that he referred to those matters in substantially different terms:

“The crimes of theft, robbery and murder have
certainly increased markedly in the last few years. Today it is not
an exception to hear of people whose goods are stolen, gangs walk the
streets and move into the shops to rob people and now we even have
the case where a person was murdered in daylight in the main street
of Windhoek. …

The crime here starts off with the accused roaming
around in the streets of Windhoek. They snatched a minor item such as
sunglasses off the victim’s face and then, when the victim was not
satisfied and attempted to recover his property, he was assaulted,
killed in a brutal and cowardly fashion.”

Nothing
in these remarks justifies the misdirections attributed on appeal to
the Trial Judge. The remarks about gangs and their activities were
made in the context of the Court’s finding that crimes of theft,
murder and robbery had become more prevalent lately. That those are
crimes of gravity and of all too common occurrence are facts
notoriously known to all the Courts in this country which grapple
daily with the waves of crime that erode the very foundations on
which we have chosen to build a just, fair and peaceful society.
These are sentiments frequently albeit differently expressed by this,
and other Courts in the region. Given his judicial experience, it was
not only relevant but also appropriate for the trial Judge to refer
to the role of gangs in the escalation of such crimes. The trial
Court did not find that he accused actually belonged to such a gang
but, by the use of the words “and now” intended to add yet
another manifestation of crimes in public places that the public was
being subjected to. We are also not impressed with counsel’s
reliance on remarks made by the trial Judge during argument in
support for his submission that the Court misdirected itself in the
manner contended for. It is not uncommon that a presiding Judge may
put questions and make propositions to counsel during argument to
test the underlying premises, the persuasiveness, the logic and the
legal basis of his or her submissions. To construe those questions
and propositions as the presiding Judge’s final views as if they
were part of the reasoning in his judgment, is to deny the
persuasiveness of advocacy in litigation and to attribute to the
presiding Judge a closed, instead of an queationing and searching,
mind.

We
do not think that there is justification for the finding that the
trial Judge reasoned that it had been the modus operandi of
the accused and his friends to roam the streets with knifes,
intending to use them on unsuspecting victims. There is nothing in
the judgment to that effect. On the contrary, the trial Court’s
approach to the evidence is indicative that the very converse holds
true. The employment of a particular modus operandi by a group
in the commission of crime presupposes the existence of a complicity
amongst them forged by an antecedent agreement to further their
common criminal objective by the employment of a particular mode of
conduct. The appellant did not prove such an agreement and, given its
inability to do so, the trial Court acquitted the accused’s
co-accused on the charge of murder. The Court expressly accepted that
he had joined in on the robbery on the spur of the moment.

We
also do not think that there is much force in the Court a quo’s
reasoning that the trial Judge overemphasised the deterrent aspect of
punishment. The trial Judge referred to the need for a deterrent
sentence only in the following passage from the judgment:

“In the light of the increase in this type of crime,
the sentence of this Court must be such that it will play some role,
however small, in deterring the accused or persons in the position of
the accused to commit this type of crime.”

Neither
in this passage nor in its context within the judgment as a whole do
we find justification for the conclusion of the Full Bench that the
aspect of deterrence was “over-emphasised so as to lose sight of
the actual moral blameworthiness of the accused”. Deterrence, as a
universally recognised important sentencing objective, finds
particular application in serving the interests of the community
(c.f. S v Da Costa and Another, 1990 NR 149 (HC) at 151D).
More so too, when the crimes are grave and all too frequently
committed. It must become well-known to those tempted to gratify
their illicit desires, needs and urges by wanton disregard for their
victims’ rights and at the expense of law and order in society,
that the Courts will to do what they can, through the imposition of
condign punishment on offenders, to stem the tide of serious crime.

This
case has a number of aggravating features. These crimes are, firstly,
crimes that are prevalent on the streets and in other public places
in Namibia. Secondly, they are, as we have mentioned, crimes which
must be seriously regarded. They involve violent attacks on the
streets and at places where people are entitled to be and to feel
safe. Thirdly, when the mugging went bad, instead of flight or
reconsideration when the deceased justifiably demanded the return of
his sunglasses, the accused retorted with murderous violence to
protect his ill-gotten gains of inconsequential value. There are
considerations that justify society’s demand that its interests be
served by the imposition of deterrent sentences. Such is the
situation in this country too, and it is appropriate to echo the
translated remarks of Lombard J S v Matolo en ‘n Ander, 1998
(1) SACR 206 (O) at 211D-F:

“In cases like the present the interests of society
is a factor which plays a material role and which requires serious
consideration. Our country at present suffers an unprecedented,
uncontrolled and unacceptable wave of violence, murder, homicide,
robbery and rape. A blatant and flagrant want of respect for the life
and property of fellow human beings has become prevalent. The
vocabulary of our courts to describe the barbaric and repulsive
conduct of such unscrupulous criminals is being exhausted. The
community craves the assistance of the courts: its members threaten,
inter alia, to take the law into their own hands. The courts
impose severe sentences, but the momentum of violence continues
unabated. A court must be thoroughly aware of its responsibility to
the community, and by acting steadfastly, impartially and fearlessly,
announce to the world in unambiguous terms its utter repugnance and
contempt of such conduct.”

We
do not suggest that a deviation from the fundamental triad of
sentencing factors as expounded in S v Zinn, 1969 (2)
SA 537 (A) at 540 is to be allowed, but, as Ackermann AJA pointed out
in S v Van Wyk, 1993 NR 426 (SC) at 448E-F, the “duty to
harmonise and balance does not imply that equal weight or value must
be given to the different factors. Situations can arise where it is
necessary (indeed it is often unavoidable) to emphasise one at the
expense of the other.” The application of these factors cannot be
subject to rigid rule, since it is obvious that their dynamics are
influenced by time and place and because the facts of each case vary
infinitely. Thus, the more society in any place is threatened by an
escalation in serious crime at any period of time, the more weight
should be accorded to its interests to right the balance when
sentencing offenders.

It
was perhaps not so much by what had been said that moved the Court a
quo to conclude that the trial Judge had over-emphasised the
objective of deterrence, but rather by what was inferred from the
severe sentences imposed. It regarded them so disparate from what it
would have imposed in the first instance, that it felt justified in
interfering. It also held that the trial Court had over-emphasised
the seriousness of the crime because it concluded that the imposition
of the death penalty would have been an imperative, had it not been
abolished by the Constitution. It is this part of the judgment that,
in our view, justifies closer scrutiny:

“Before the Namibian Constitution, the murder
committed by accused number 1 would have been regarded as one without
any extenuating circumstances and the death sentence would have been
imperative. A court also in the case of robbery with aggravating
circumstances was entitled to impose the death sentence but was not
compelled to do so. In Great Britain, when the death sentence was
abolished, the statute made it compulsory to sentence a person to
life imprisonment in the place or in lieu of the sentence of death.
Under the pre-independence dispensation, the accused number 1 would
have been sentenced to death. Under the present dispensation, the
only realistic punishment for accused number 1 is life imprisonment
on the charge of murder.”

Reiterating,
as it did, that under the pre-independence dispensation the accused
would have been sentenced to death and pointing out that a compulsory
sentence of life imprisonment substituted the death penalty in Great
Britain, one is left in no doubt why, after the Constitutional
abolition of the death penalty in Namibia on Independence, the trial
Judge reasoned that life imprisonment was the only “realistic”
sentence for the accused. I find this reasoning, with respect, both
fundamentally and substantively flawed.

It
is fundamentally wrong to import and apply pre-independence norms for
the imposition of the death penalty to the current sentencing
criteria for the imposition of life imprisonment in appropriate
instances. The crime of murder previously carried with it a mandatory
death penalty but, if the Court was of the opinion that there were
extenuating circumstances, it was at liberty to impose another
sentence. The absence of any statutory guidance on the meaning and
contents of this concept resulted in some judicial debate, with it
was eventually being agreed that same refers to those facts bearing
on the commission of the crime, which subjectively affected the
accused’s state of mind so significantly that they abated his or
her moral blameworthiness in the commission of the crime (S v
Letsolo, 1970 (3) SA 476 (A) at 476F-H). It was only those
“circumstances as are connected with or have a relation to the
conduct of the accused in the commission of the crime” that would
be afforded any weight (R v Mfoni, 1935 OPD 191 at 193).
Considerations such as the absence of previous convictions (S v
Shabalala, 1966(2) SA 297 (A) at 300H), the possibility of
rehabilitation (S v Maimela, 1976(2) SA 587 (A) at 591H), the
interest of the community (S v Maarman, 1976(3) SA 510 (A) at
512G) and subsequent conduct (S v Arnold, 1965(2) SA 215 (C)
at 219F), to mention a few, were not strictly relevant in that
context (See generally: MM Loubser, “Versagtende Omstandighede by
Moord: Die Gradering van Skuld”, 1970 THRHR 333 at
335). As Holmes JA pointed out in S v Matthee, 1971(3) SA 769
(A) at 771A-F, it was only once extenuating circumstances had been
found to be present that a trial Judge had a statutory discretion to
impose "any sentence other than the death sentence that factors
ordinarily relevant to sentence would be considered, such as –

“(a) whether the very circumstances found to be
extenuating, e.g. intoxication or provocation, did not in themselves
contribute to the brutality of the deed, so that the element of
heinousness should not be emphasised out of perspective;

(b) whether, in the particular circumstances of the
case, the alternative of imprisonment, if necessary for life, would
not be regarded by society as an adequate deterrent to others;

(c) whether the discipline and training of a lengthy
period of imprisonment might have reformative effects, so that the
accused's continued existence would not be a real danger to society;
and

(d) whether the evil of his deed is so shocking, so
clamant for extreme retribution, that society would demand his
destruction as the only expiation for his wrongdoing.”

With
the constitutional abolition of the death penalty, the Court’s
sentencing discretion is no longer tied up in the procedural
straightjacket of first having to determine whether there are
circumstances which could have influenced the accused’s state of
mind; if so, whether they subjectively so influenced him or her and,
if so, whether the influence was so significant that it diminished
the moral blameworthiness of the deed. To reason, as the trial Judge
seemingly did, that because there were no mitigating circumstances,
ergo the only realistic sentence (in the absence of the death
penalty as an option) was life imprisonment, constitutes a
misdirection in law. Instead of reasoning along those lines, the
trial Court would have considered all mitigating and aggravating
factors (including those previously referred to in the context of
murder as “extenuating circumstances”) in the context of Zinn’s
triad and the well-recognised sentencing objectives of the Court.
“Mitigating factors” not only encompasses, but also extends wider
than “extenuating circumstances” (See: S v Dlamini,
1992(1) SA 18 (A) at 29A-B). Even if there were no circumstances
which could have been regarded as “extenuating” under the
previous dispensation, the Court might nevertheless have been
persuaded by other “mitigating factors” (not directly bearing on
the conduct of the accused in the actual commission of the murder –
such as those we have referred to earlier) that life imprisonment was
not an appropriate sentence in the circumstances.

I
hasten to add though that the reasoning of the trial Judge is also in
my respectful view substantively flawed inasmuch as he found that
there were no “extenuating circumstances”. I referred earlier to
the trial Judge’s implicit finding that the murder was not
pre-planned. It is clear from the evidence that the accused acted
impulsively and on the spur of the moment when the deceased
confronted him. The absence of premeditation has always been regarded
as an extenuating circumstance (cf. R v Mlambo, 1960(2)
SA 55 (W) at 59 and R v Mharadzo, 1966 (2) SA 702 (RA) at
704A). So too, may the absence of dolus directus be (See: S
v Sigwahla, 1967 (4) SA 566 at 571E-I). In his judgment the trial
Judge did not find whether actual or legal intention accompanied the
act of stabbing. The evidence, it seems to me, does not establish an
actual intention to kill but rather an inference of constructive (or
legal) intention. The knife was not used at the onset of this
multi-handed robbery and was only produced when the deceased
confronted the accused. Thereafter the events followed in quick
succession. The accused reacted and, without even removing the paper
in which the knife was wrapped, stabbed the deceased in his upper
body. Moderate force was used, causing the knife to penetrate only 6
cm deep into soft tissue. Unfortunately, it partly severed a major
vein in the deceased’s throat. It was a single stab and the accused
immediately thereafter ran away. Had the accused intended to kill the
defenseless deceased, one would have expected a more purposive and
severe attack. The absence of both premeditation and dolus
directus are factors which a Court would have considered as
“extenuating” prior to the abolition of the death penalty and
which would have justified the imposition of a sentence other than
the ultimate one.

Given
these fundamental and substantive misdirections, the Full Bench was
at liberty to consider the sentence on the count of murder afresh.
It’s considered view was that the sentence of life imprisonment was
startlingly inappropriate in the circumstances of the case. It
adopted the view that life imprisonment should only be resorted to
“in extreme cases either because society legitimately needs to be
protected against the risk of repetition of such conduct by the
offender in the future of because the offense committed by the
offender is so monstrous in its gravity as to legitimize the extreme
degree of disapprobation which the community seeks to express through
such a sentence” (per Mahomed CJ in S v Tchoeib,
1996(1) SACR 390 (NmS) at 397g) and reasoned that neither the
facts nor the murder could properly and justifiably be described as
“extreme” or so “monstrous” that society would expect the
strongest possible judicial condemnation. Inasmuch as the accused was
for all practical purposes a first offender did not, in the absence
of any other evidence, suggest the need to protect society against
the risk of repetition after his eventual release. Stressing the need
for relative uniformity in the passing of sentences and referring to
that imposed in another case of unprovoked stabbing, the Court a
quo imposed 16 years imprisonment.

Although
Mr January, appearing on behalf of the State, seeks to attack the
substituting sentence on a number of grounds, there is, in my view,
no justifiable reason to interfere with it. His submission that there
are no mitigating factors justifying a sentence less than life is,
for the reasons I have already given, clearly untenable. So too, is
his submission that the murder can be described as “monstrous and
even as extreme”. Whilst the crime of murder per se is one
of the most serious of all crimes and falls within a category which
may well justify the imposition of life imprisonment, the Court’s
approach to crimes of that nature cannot be subject to rigid rule
since the facts of each case vary infinitely and each must be judged
according to its merit. I have exhaustively and keenly reconsidered
all the aggravating and mitigating factors referred to earlier in
this judgment and, although this murder has a number of alarming
features deserving of condign punishment, they do not elevate it into
the realm of those deserving of life imprisonment. A sentence of 16
years imprisonment seems to me both fair and proper for a murder of
this gravity and circumstance.

I
now turn to consider the appeal against the substitution for the
sentence of 15 years imprisonment of a sentence of 1 year
imprisonment on the charge of robbery with aggravating circumstances.
The crime of robbery presents itself, of course, in an infinite
variety of circumstances and in what can generally be regarded as a
diminishing scale of seriousness: ranging from large scale planned
armed robberies and robberies of financial institutions, businesses
and private residences to common muggings. It follows that the
sentences imposed will also vary markedly. But even if one were to
allow for a significant deviation in the appreciation of the
seriousness of the robbery, the difference between 16 years
imprisonment imposed by the trial Court and the substituting sentence
of 1 year imprisonment imposed by the Full Bench is so significant
that it could only have been the result of substantively different
approaches to the question of sentence. A closer reading of the two
judgments bears this out: The Trial Court considered the death of the
deceased as an aggravating factor in sentencing the accused whilst
the Full Bench essentially disregarded the violence committed after
the snatching of the sunglasses when it determined the substituting
sentence. For reasons that will presently follow, it seems to me that
both these Courts have erred.

The
trial Judge, referring to the approach in S v Mogala, 1978(2)
SA 412 (A) at 415H-416A, S v Sithole, 1981(1) SA 1186 (N) at
1187, S v Mofokeng, 1982(4) SA 147 (T) at 150A-C and S v
Witbooi, 1984(1) SA 242 (C) when an item of value is snatched
from a victim, held that the crime of robbery was committed at the
moment the glasses were snatched from the face of the deceased. To
justify the finding that aggravating circumstances as defined in s. 1
of the Criminal Procedure Act, 1977 were present, he further held
that the subsequent stabbing was so narrowly connected in time and
place thereto that it formed part and parcel of the actual robbery.
It was on this premise (the correctness of which is not in issue and
on which I express no view) that he convicted and later sentenced the
accused on the count of robbery.

The
stabbing of the deceased is therefore not only an event underlying
the accused’s conviction on the charge of murder, but is also the
reason why he was convicted on the count of robbery with aggravating
circumstances. The stabbing, we know, had fatal consequences.
Inasmuch as the conviction on both crimes is based on the same series
of facts and the violence perpetrated on the victim constitutes an
element of both these crimes, the accused found himself in jeopardy
of being punished twice for something he had done but once. The trial
Court was not alert to this possibility. Not only did it punish the
accused with life imprisonment for the murder but again, this time as
an aggravating factor, took the murder into account when sentencing
the accused on the charge of robbery. This is evident, not only from
the difference in the sentences imposed on the accused and his
co-accused respectively, but also from the following remarks made by
the trial Judge in the course of his judgment on sentence:

“The murder is one of the elements also of the
robbery in the case of accused number 1, but it is clear that the
murder cannot be held against accused number 2 when considering his
sentence on the crime of robbery.”

The
Appellate Division of the Supreme Court of South Africa first
recognised the risk of double punishment for the same criminal act in
S v Mathebula and Another, 1978 (2) SA 607 (A) at 613H
– also a case where a murder was committed in the course of a
robbery and the accused was convicted of both. Until 1992 that Court
(and others within its jurisdiction) avoided the risk of double
jeopardy by “thinking away” or ignoring the death of the deceased
when dealing with the question of sentence on the robbery charge
(See: S v Tloome, 1992 (2) SACR 30 (A) at 40B;
S v S, 1991 (2) SA 93 (A) at 103I-105D; S
v Witbooi, 1982 (1) SA 30 (A) at 35A - G; S v Moloto,
1982 (1) SA 844 (A) at 854E - G; S v Daniëls en 'n Ander,
1983 (3) SA 275 (A) at 306A - C; S v Bapela and Another, 1985
(1) SA 236 (A) at 247C - G; S v Mooi, 1985
(1) SA 625 (A) at 630D) and S v Petersen, 1989
(3) SA 420 (A) at 426). A Court’s failure to do so was described in
the Petersen-case as a serious misdirection (“growwe
mistasting”).

Although
the death of the victim was ignored when sentencing the accused on
the count of robbery, the degree of violence was nevertheless taken
into account. So, for example, did the Appellate Division of the
Supreme Court in South Africa refer with approval in S v Witbooi,
supra (at 35E–F) to the following passage from the
judgment in the unreported case of S v Sedick:

"Soos ek die uitspraak verstaan (dws in die
Mathebula -saak) moet in 'n geval soos die onderhawige by oorweging
van 'n gepaste straf op die roofklag sover doenlik die noodlottige
gevolg van die aanranding - die dood van die oorledene - buite
rekening gelaat word, maar kan en behoort nog steeds ag geslaan te
word op die geweld wat gebruik is en veral op die feit dat dit
lewensgevaarlik van aard was." (Own translation: As I
understand the judgment (i.e. in the Mathebula case) the fatal
consequences of the assault – the death of the deceased – must
not be taken into account during the consideration of an appropriate
punishment on the charge of robbery in a case like the present one,
but the violence that had been used may still and ought to be noted
and in particular the fact that in was life-threatening of nature.)

More
recently though, it seems as if the majority of that Court has taken
a further step to eliminate the risk of double jeopardy. In S v
Maraisana and Another, 1992 (2) SACR 507 (A) at 507H -508C
Nestadt JA (with whom Eksteen JA concurred) stated the approach of
the Court as follows:

“The two offences are based on the same set of facts.
In these circumstances, care has to be taken to avoid a duplication
of punishment. This is achieved by 'thinking away' the murder, ie the
death of the victim when sentencing the accused for the robbery (see
S v Tloome 1992 (3) SA 568 (A) at 578D (1992 (2) SACR 30 at
40b). This is often a difficult exercise. What does 'thinking away'
the murder mean? There is authority that the violence used does not
fall within the ambit of what must thus be ignored (see, for example,
S v Witbooi 1982 (1) SA 30 (A)). But is this necessarily so?
In S v Mooi 1985 (1) SA 625 (A) at 631I, Joubert JA (in a
minority judgment) found that the accused's act of permanently
incapacitating his victim (which was an element of the crime of
murder) went beyond the bounds of robbery (which merely required
that the victim be temporarily incapacitated). In a given case,
therefore, where the murder was committed in order to facilitate the
robbery, it may be that the violence used should, when considering an
appropriate sentence for the robbery, also (to a greater or lesser
extent) be thought away.”

Van
Den Heever JA took a different view in a minority judgment. If not
only the death of the victim but also the violence which accompanied
the murder and the robbery are ignored for purposes of sentence on
the charge of robbery, it may well result in a sentence which does
not adequately reflect the seriousness with which the Court regards
the crime (at 512E). She conceded that “thinking away” the death
of the victim when it was the inevitable result of his or her
injuries is also problematic. If the death of the victim should be
ignored for purposes of sentence on the count of robbery just because
it is not one of the elements thereof, why then not also the theft as
the dishonest motive behind the murder? The approach she favoured, so
I understand her judgment, is that the Court’s sentence on the
count of robbery must reflect the seriousness with which it would
have regarded the robbery if the accused had not been and would not
be charged with murder (at 512H-G).

I
have given these conflicting views anxious consideration and find
myself in respectful disagreement with the majority view in
Maraisana’s case. It proposes that under certain
circumstances the commission of an act which constitutes a necessary
element of the offence for which the accused should be sentenced may
be ignored. Whilst it may go a long way to remove the possibility of
double jeopardy in sentencing, it derogates from the principle that
punishment should fit the crime: if the offender has been convicted
of robbery and murder, sentence should be passed on those crimes and
not as if he or she had been convicted of theft (by ignoring the
element of violence in the robbery) and murder.

The
approach adopted by the majority of that Court may conceivably not
only lead to the imposition of sentences which do not adequately
reflect the seriousness with which the crime should be regarded but
may conceivably also have untenable results in practice. If both the
violence perpetrated on the victim and his or her resultant death are
ignored when sentencing the accused on the charge of robbery, and the
conviction on the charge of murder is subsequently set aside on
appeal, then what will remain is a hopelessly inadequate sentence on
the conviction of robbery – a sentence which punishes only the
element of dishonesty and takes no or inadequate cognizance of the
element of violence in the robbery. The latter, in most instances,
also constitutes the “aggravating circumstances” of the crime on
which the accused has been convicted of in the first instance. This
is but one example where the same criminal act or omission
constitutes a necessary element of more than one offence and there
are many more. In all those instances, if the act or omission is
taken into consideration for purposes of sentence only in relation to
the one and ignored when punishing the other, the possibility that
the same injustice may result when the conviction on the one offence
is set aside on appeal or review increases substantially.

I
agree with the approach favoured by Van Den Heever, JA: The accused
must be sentenced on the count of robbery as if he has not been
convicted on the count of murder and is not in jeopardy of such a
conviction in future. In many instances the result may well be the
same as that of the earlier approach applied by that Court, i.e. to
think the death of the victim away when sentencing the accused on the
count of murder but its substratum is different and founded on the
principle that the sentence should always be designed to fit the
crime (and it is not to say that it should not also incorporate the
other elements of Zinn’s triad). Whilst this approach may
well be criticized for not removing the risk of double jeopardy
altogether, it remains for the reasons I have already referred to,
the preferred option. To the extent that an element thereof remains,
this can be addressed adequately by directing that the sentences (or
portions thereof) will be served concurrently.

Having
taken the murder (and therefore also the death) of the victim into
account for purposes of sentencing the accused on the count of
robbery, the trial Judge materially misdirected himself and the
sentence cannot be sustained. The Full Bench interfered with the
sentence on a different ground: it regarded the sentence as
excessive, pointing out that “the robbery involved the snatching of
sunglasses from the eyes of the deceased without any accompanying
threat or assault upon the deceased. It was only after the deceased
confronted the appellant that he pulled out the knife and stabbed the
deceased.” Whilst it is true that the stabbing occurred only after
the deceased demanded the return of his sunglasses, the Full Bench
did not attach any or adequate weight to the fact that the conviction
on which sentence had to be passed followed on a finding that the
stabbing was so close in time and place to the snatching of the
sunglasses in the multi-handed robbery that it formed an integral
part thereof. The accused was not simply convicted of robbery, but of
robbery with aggravating circumstances and, in whichever league one
may place a particular robbery, the seriousness with which it is
regarded is always significantly increased when a dangerous weapon is
used in the course thereof and even more so if the victim is injured
or killed in the course thereof. The unexpected assault on the victim
with the knife was severe and callous. The other aggravating features
of the crime to which the trial Court has drawn attention to elevate
it to a category which rendered appropriate a much more substantial
sentence of imprisonment that the one year imposed by the Full Bench.
Moreover, given the accused’s previous conviction of theft, albeit
a minor one, and the fact that he committed this crime whilst being
on parole on a sentence imposed for malicious damage to property, the
substituting sentence of one year imprisonment is disturbingly
inadequate and does not adequately reflect the seriousness of the
offence.

In
the premises, the appeal against the sentence of 16 years
imprisonment on the charge of murder fails but it succeeds against
the substituting sentence of one year imprisonment on the conviction
of robbery.

In
the result, the following order is made:

1. The
   appeal against the sentence of 16 years imprisonment on the charge
   of murder is dismissed.

   
   

2. The
   appeal against the sentence of 1 year imprisonment on the charge of
   robbery with aggravating circumstances imposed by the Full Bench of
   the High Court under case no. FA 9/94 succeeds and is substituted
   with the following sentence:

   
   

“8 (eight) years imprisonment), 5 years of which shall
be served concurrently with the sentence of 16 years imprisonment
imposed on the charge of murder.”.

3. The
   sentence is antedated to 29 May 1992.

   
   

_____________________________

MARITZ, AJA

I
concur.

________________________________

TEEK, AJA

I
concur.

_________________________________

GIBSON, AJA

COUNSEL ON BEHALF OF
THE APPELLANT: MR. H.C. JANUARY

INSTRUCTED BY THE
PROSECUTOR-GENERAL

COUNSEL ON BEHALF OF
THE RESPONDENT: MR. H. GEIER

PRO AMICO