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[2015] ZAWCHC 149
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Fillies v S (A256/2015) [2015] ZAWCHC 149 (16 October 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
CASE NO: A256/2015
DATE: 16 OCTOBER 2015
In the matter between:
CLAYTON
FILLIES
................................................................................................................
Applicant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
DELIVERED ON 16 OCTOBER 2015
DONEN AJ
[1] The appellant was charged with
murder in the Regional Court, Cape Town. He was convicted and
sentenced to 12 years imprisonment
of which two years were suspended
for a period of five years. With the leave of the trial court he now
appeals against the sentence.
[2] The offence occurred on 2 June 2012
near Zoar Vlei, Brooklyn. The appellant was 17 years old at the
time. He turned 18 on
4 June 2012, two days after committing the
offence. The appellant pleaded on 2 May 2013 and was sentenced on 17
July 2014.
[3] According to the charge sheet the
provisions of
s51(2)
of the
Criminal Law Amendment Act 105 of 1997
were applicable.
Section 51(2)
provided that, subject to
sub-sections (3) and (6), a regional court was required to sentence a
first offender convicted of murder
(an offence referred to in
Part II
of Schedule 2) to imprisonment for a period of not less than 15
years. Sub-section 3(a) authorised the imposition of a lesser
sentence where the court was satisfied that substantial and
compelling circumstances justified it. Sub-section (6) provided that
the provisions of
s. 51
would not be applicable in respect of a child
who was under the age of 16 years at the time of the commission of
the offence.
[4] On 15 July 2009 the Constitutional
Court declared
s.51(2)
to be inconsistent with the Constitution and
invalid to the extent that it applied to persons that were under 18
years of age at
the time of the commission of the offence. Section
51(6) was similarly declared to be unconstitutional and was required
to be
read as though it provided that s.51 did not apply in respect
of an accused who was under the age of 18 years at the time of
commission.
A new section to this effect was substituted by Act
No.42 of 2013. (See Centre for the Child Law v Minister of Justice
2009 (2) SACR 477
(CC.) The court held that if there is an
appropriate option other than imprisonment, the Bill of Rights
requires that it be chosen.
Incarceration should be the sole
appropriate option. If it is unavoidable the duration must also be
tempered so as to ensure
detention for the shortest possible period
of time. An individually appropriate sentence is required. (See
paragraphs 31 and 32.)
[5] Section 28(3) of the Constitution
defines a child as meaning a person under the age of 18 years.
Section 28(2) thereof provides
that a child’s best interests
are of paramount importance in every matter concerning the child.
Section 28(1)(g) provides
that every child has the right not to be
detained except as a measure of last resort in which case the child
may be detained only
for the shortest appropriate period of time.
This last provision is echoed in
s.77
of the
Child Justice Act 75 of
2008
which provides that, when sentencing a child who is 14 years or
older at the time of being sentenced, the court must only impose
imprisonment as a measure of last resort for the shortest appropriate
period of time. However,
s.77(3)
and s.
77
(4), read with schedule 3
of the Act, authorise a child of 14 years or older to be sentenced to
imprisonment for murder for a period
not exceeding 25 years.
[6] Section 69(4) of the Act provides
that when considering the imposition of a sentence involving
imprisonment in terms of s.77,
the Court must take the following
factors into account, namely:
(a) the seriousness of the offence;
(b) the protection of the community;
(c) the severity of the impact of the
offence on the victim;
(d) the previous failure of the child
to respond to non-residential alternatives, if applicable; and
(e) the desirability of keeping the
child out of prison.
[7] The parameters within which the
magistrate had to sentence appellant are apparent from all of the
above.
[8] On behalf of the appellant Ms De
Jongh admits that, given the circumstances of the case, it is a
matter in which imprisonment
is justified. However, she contends
that the purposes of sentence including retribution, prevention and
deterrence can be met
with a shorter term of imprisonment. The
sentence imposed was therefore not suitable. It over-emphasised
retribution and general
deterrence and ignored the importance of
rehabilitation. It is further contended that the magistrate did not
exercise her discretion
judicially and fairly by investigating and
attaching due weight to all the relevant factors. In particular
reference is made to
the age of the appellant at the time of the
event. It is submitted that he should be regarded as a child even
though he was 20
years old at the time he was sentenced. He was also
a first offender and he was under the influence of drugs and alcohol
during
the time of the offence. It is also contended that he showed
remorse by admitting his guilt during the sentencing proceedings.
[9] In sentencing the appellant the
magistrate found that there were positive aspects in the appellant’s
make-up; including
his age at the time of the offence; the fact that
he admitted to the official who prepared his pre-sentencing report
that he had
committed the offence; and that he was a first offender.
However, all of that had to be weighed against what he had done and
the
interest of the community.
[10] The medical evidence showed that
the deceased had been stabbed 33 times. The cause of death was a
stab wound in the chest.
This incised the left subclavian artery at
its root. Among other wounds there was also a 15mm long stab wound
present on the
side of the deceased’s neck below the angle of
the mandible. It incised the right jugular vein, although there were
indications
that this was after death. There were eleven stab wounds
on the abdomen, another five on the right side of the chest, four on
the left arm among others. The attack was therefore exceptionally
vicious and persistent. The magistrate accordingly found that
corrective supervision as suggested in the pre-sentence report would
over-emphasise appellant’s personal circumstances.
In my view
this finding was correct.
[11] Although the appellant suggested
to the official that the deceased had made improper sexual advances
towards him, the appellant
gave the court no explanation for this
vicious attack. In fact he pleaded not guilty and raised an alibi.
He testified in mitigation
only to apologise to the family of the
deceased. There are no direct evidential factors which can explain
or mitigate the appellant’s
behaviour. As appellant did not
take the court into his confidence it can hardly be said that he
showed remorse.
[12] A member of the neighbourhood
Watch Block testified that, on 4 June 2012, the Watch were patrolling
when they came across the
appellant and two others. He was very
nervous and they could see something was wrong. The appellant went
into the reeds and shortly
afterwards the Watch members thought they
saw the reeds burning. The appellant came running out of the reeds.
When the Watch
investigated they found it was the body of the
deceased that was burning. At that stage – when he evidently
set fire to
the body of the deceased – the appellant was 18
years old.
[13] The stepfather of the deceased
testified as to the trauma and irreversible heartbreak that the
murder had inflicted on him
and the mother of the deceased.
[14] Upon a balance of the appellant’s
personal circumstances against the crime and the interest of the
community the magistrate
concluded that a reasonable term of
imprisonment was the only suitable sentence. In her judgment the
magistrate observed that
the appellant would have choices in prison
and that there were many programmes available and sufficient time for
him to rehabilitate
himself.
[15] Upon a conspectus of her judgment
it is clear that the magistrate imposed sentence individually and did
not import legislative
determination of what would be “appropriate”.
[16] The only circumstances in which
this court of appeal may now interfere in the sentence passed is if
there was a material misdirection
by the trial court, or the
disparity between the sentence of the trial court and the sentence
which this Court would have imposed
is so marked that it can properly
be described as “shocking, startlingly or disturbingly
inappropriate”. (See S v L
2012 (2) SACR 399
WCC.) No material
misdirection by the trial court has been drawn to this court’s
attention. Nor can it be said that the
sentence imposed was
startlingly inappropriate. The relevant principles set out by the
Constitutional Court and the
Child Justice Act were
applied.
[17] Sentencing is about achieving a
balance (or proportionality). The elements at play are the crime,
the offender and the interests
of society. The objects are
prevention (society must be protected from those who harm it),
retribution (placating society’s
outrage at serious
wrongdoing), reformation (unless this is clearly not likely) and
deterrence (of others from committing the same
offence and of the
individual from acting in the same manner again). (See S v RO &
Another
2010 (2) SACR 248
SCA at para 30; and S v Van Loggerenberg
2012 (1) SACR 462
(GSJ) at para 6.)
[18] In my view the sentence succeeded
in achieving this balance. I would therefore dismiss the appeal
against sentence.
DONEN AJ
I agree. The appeal is dismissed. The
appellant’s sentence is confirmed.
CLOETE J