Automated Summary
Key Facts
The appellant, David Bino Zulu, was convicted of five counts of robbery with aggravating circumstances and four counts of attempted murder in 2012. Sentences totaled 75 years' imprisonment, but the High Court reduced this to 35 years on appeal due to the excessive cumulative effect. The court found the original sentence 'shocking' and ruled that concurrent sentences should have been ordered for most charges, which were not inextricably linked. The crimes involved armed robberies of businesses, use of firearms, and shooting victims, with the appellant supplying weapons for multiple incidents. The appeal succeeded on the basis of the sentencing court's injudicious exercise of discretion.
Issues
- The second issue addresses the cumulative 75-year sentence imposed by the trial court. The appellate court found this sentence startlingly excessive, noting it would result in the appellant's release at approximately 107 years of age. Citing precedents like S v Zondo and S v Mahlatsi, the court held that an effective 50-year sentence is unacceptable and that the trial court's discretion was exercised injudiciously. The appeal succeeded in reducing the effective sentence to 35 years.
- The first issue concerns the learned magistrate's inclusion of an untried incident (appellant's alleged attempt to kill a court orderly in the courtroom) during sentencing. The court determined this was a material misdirection, violating the appellant's constitutional right to a fair trial under section 35(3) of the Constitution. The magistrate had no authority to consider untried allegations in sentencing, as they lacked due process and evidence-based justification.
Holdings
- The court found a material misdirection in the sentencing process where the learned magistrate considered an incident (attempted murder of a court orderly) that the appellant had not been tried for, violating his constitutional right to a fair trial as per section 35(3) of the Constitution. This irregularity justified interference with the original sentence.
- The appeal succeeded in varying the sentences. The court ordered that 15 years of counts 4 and 5 run concurrently with count 1, 15 years of counts 7 and 8 run concurrently, and 5 years of count 9 run concurrently with count 8. This reduced the effective sentence from 75 years to 35 years, backdated to 12 April 2016.
Remedies
The court varied the sentences for counts 4 and 5 to run concurrently with count 1, counts 7 and 8 to run concurrently, and 5 years of count 9 to run concurrently with count 8. This resulted in the appellant serving a total of 35 years' imprisonment backdated to 12 April 2016, the original sentencing date.
Legal Principles
Under section 280(2) of the Criminal Procedure Act, an appellate court can interfere with a trial court's sentence either due to material misdirection by the sentencing court or when the disparity between the imposed sentence and what the appellate court would impose is so marked as to be described as shocking, startling, or disturbingly inappropriate. This principle was applied to vary the cumulative 75-year sentence, reducing it to 35 years, based on the need to prevent an unjustified long effective term of imprisonment. The judgment references precedents like S v Sadler and S v Zondo to support this approach.
Precedent Name
- S v Muller & Another
- S v Mahlatsi
- S v Motloung
- S v Mokela
- S v Sadler
- S v Zondo
Cited Statute
- Criminal Procedure Act 51 of 1977
- Criminal Law Amendment Act 105 of 1997
Judge Name
G C Muller
Passage Text
- 1 S v Motloung 2016 (2) SACR 243 (SCA) at para 6[10] In sentencing the appellant in this appeal, the learned magistrate remarked that the appellant attempted to kill a court orderly in his presence inside the courtroom. To my mind, there lies a material misdirection. In terms of section 35 (3) of the Constitution, the appellant like every other accused person, has a right to fair trial in relation to those allegations. The Bill of Rights, inter alia, guarantees him to be informed of the charge with sufficient detail to answer it; to a public trial before an ordinary court; to be presumed innocent and to adduce and challenge the evidence. Simply put, it was irregular for the learned magistrate to factor in during the sentencing process, an incident in respect of which the appellant had not been tried albeit witnessed by the learned magistrate in accordance with the basic notions of justice to justify the sentences imposed.
- 5 See S v Mokela 2012 (1) SACR 431 (SCA) at 11[13] Crimes of armed robbery involving the use of firearms are unacceptably prevalent in this country. To the extent that the learned magistrate ordered that some of the sentences run concurrently, he did not go far enough, but paid lip service to our common law position. The attempted murder charges were committed in the course of the robbery incidents. The discretion he had was therefore exercised injudiciously. This court, on appeal, is completely justified in interfering with the sentences imposed by the trial court.
- 6 [2013] ZASCA 51 (unreported, SCA case no 627/12, 28 March 2013; 2013 JDR 0653 (SCA))[14] The appeal succeeds to the extent that the sentences are varied by the order that follows. In my view, the interests of justice would be served by ordering that 15 years' of the sentences imposed on each count 4 and 5 to run concurrently with the sentence in respect of count 1. Furthermore, 15 years' of the sentences imposed on each count 7 and 8 are to run concurrently. Finally, 5 years of the sentence imposed in respect of count 9 is to run concurrently with sentence imposed in count 8. The effect of the foregoing is that, effectively, the appellant is to serve 35 years' imprisonment backdated to 12 April 2016, the date of the original sentence.