Bongokwakhe Bonginkosi Mvubu v The State

On 17 September 2001, the appellant, aged approximately 28 years, and five co-accused participated in a violent cash-in-transit heist on a Fidelity Guards vehicle carrying approximately R2.5 million. The group, armed with AK-47 rifles, forced the vehicle off the road causing it to capsize. They fired at security guards trapped inside (protected by bulletproof glass), forcing them out and robbing them of firearms. The perpetrators erected a roadblock and robbed members of the public of two rifles, a motor vehicle, and vehicle keys at gunpoint. When police arrived, the attackers fired at the police vehicle. One officer, Sergeant Thomas, was shot in the neck and rendered paraplegic. Another officer, Inspector Ncwane, was saved by his bulletproof vest which was struck twice. The appellant was a first offender who had been in custody for approximately two years as an awaiting trial prisoner. He was convicted on five counts of attempted murder and four counts of robbery with aggravating circumstances. The trial court sentenced him to a cumulative 205 years' imprisonment with an effective term of 95 years. The full court reduced this to 45 years with a 25-year non-parole period under s 276B(2) of the Criminal Procedure Act.

• Whether the individual sentences imposed for attempted murder and robbery with aggravating circumstances were justified and appropriate
• Whether the effective term of 45 years' imprisonment (a 'Methuselah sentence' likely to exceed the appellant's lifespan) could be justified
• Whether the full court was correct in imposing a non-parole period under s 276B(2) of the Criminal Procedure Act 51 of 1977
• Whether s 276B(2) of the Criminal Procedure Act has retrospective application to crimes committed before it came into operation on 1 October 2004
• When an appellate court is entitled to interfere with sentences imposed by a trial court

The appeal against sentences in respect of counts 1, 2, 3, 4, 5, 9 and 10 was successful. The sentences were set aside and substituted as follows: Counts 1, 2 and 4 (attempted murder): 10 years each; Count 3 (robbery of firearms): 15 years; Count 5 (robbery of vehicle keys): 5 years; Count 9 (attempted murder of Sergeant Thomas): 20 years; Count 10 (attempted murder of Inspector Ncwane): 12 years. Sentences for counts 1, 2, 4 and 10 run concurrently with the 20-year sentence on count 9. Sentences for counts 5, 6 and 8 run concurrently with the 15-year sentence on count 3. Five years of the count 3 sentence runs concurrently with the count 9 sentence. The effective total sentence is 30 years' imprisonment, ante-dated to 25 September 2003.

Section 276B(2) of the Criminal Procedure Act 51 of 1977 does not have retrospective application to crimes committed before it came into operation on 1 October 2004, as the well-established principle is that a penalty arises when a crime is committed, not when a person is convicted or sentenced (following S v Mchunu). A non-parole period cannot be imposed without the matter being debated before the court. An appellate court is entitled to interfere with a sentence where it is shocking, startling and disturbingly inappropriate, provided the appellate court is able to arrive at a definite view as to what sentence it would have imposed. When dealing with multiple offences, a sentencing court must have regard to the totality of the offender's criminal conduct and moral blameworthiness in determining what effective sentence should be imposed, to ensure that the aggregate penalty is not too severe. An effective sentence that amounts to life imprisonment may be shockingly inappropriate even for serious violent crimes involving multiple victims, particularly where the offender was relatively young at the time of the offences. Cumulative sentences of 30 years' imprisonment should be reserved for particularly heinous offences.

The court observed that life imprisonment is the most severe sentence that can be imposed and is the sentence that has to be imposed if an offender needs to be removed from society. The court noted that it is improper to take into consideration any possibility of parole in determining a suitable and proper sentence. The court commented that even if an accused is sentenced to life imprisonment, after serving 25 years imprisonment he or she will be considered for parole under s 73(6)(b)(iv) of the Correctional Services Act 111 of 1998, and therefore imposing a non-parole period of 25 years was akin to life imprisonment. The court noted that life imprisonment is the prescribed sentence for the murder of a law enforcement officer performing his or her functions under s 51(1) of the Criminal Law Amendment Act 105 of 1997 read with Schedule 2 Part I(b)(i). The court observed that the possibility of parole saves a life sentence from being cruel, inhuman and degrading punishment. The court reinforced its view on the appropriate 30-year effective sentence by noting that counsel for both the appellant and the State agreed that such a sentence was appropriate.

This case is significant in South African criminal sentencing jurisprudence for several reasons: (1) It clarifies that s 276B(2) of the Criminal Procedure Act 51 of 1977 (concerning non-parole periods) does not have retrospective application and applies the principle that penalties arise when crimes are committed, not when convicted or sentenced; (2) It establishes procedural requirements that the possibility of imposing a non-parole period must be debated before being imposed; (3) It provides guidance on when appellate courts may interfere with sentences, reaffirming the test that sentences must be 'shocking', 'startling' or 'disturbingly inappropriate' for interference, and that the appellate court must be able to arrive at a definite view of what sentence it would have imposed; (4) It addresses 'Methuselah sentences' (sentences likely to exceed an offender's lifespan), holding that cumulative sentences of 30 years should be reserved for particularly heinous offences and that effective life imprisonment may be inappropriate even for very serious crimes; (5) It provides guidance on differentiation of attempted murder sentences based on dolus eventualis versus direct intent, and the seriousness of attacks on police officers performing their duties; (6) It applies the totality principle in sentencing, requiring courts to consider the offender's overall criminal conduct and moral blameworthiness when dealing with multiple offences to ensure aggregate penalties are not too severe.