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[2015] ZAWCHC 208
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S v Siyeka (SS11/2014) [2015] ZAWCHC 208 (1 December 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
CASE NUMBER: SS11/2014
DATE: 1 DECEMBER 2015
In the matter between:
THE STATE
And
CHUMA
SIYEKA
........................................................................................................................
Accused
S E N T E N C E
BOQWANA, J:
Sentencing principles
The considerations that the Court looks
at when sentencing are trite, namely, the nature of the offence or
offences, the offender
and the interests of the society. This
principle was aptly put in S v Rabie 1975(4) SA 855 (A) where the
court observed that the
punishment should fit the criminal as well as
the crime, be fair to the society and be blended with a measure of
mercy according
to the circumstances. At page 866 the court
referring to S v Zinn 1969(2) SA 537 (AD) at page 541 with approval
said the following:
“A judicial officer should not
approach punishment in a spirit of anger because, being human that
will make it difficult for
him to achieve that delicate balance
between the crime, the criminal and the interests of society which
his task and the objects
of punishment demand of him. Nor should he
strive after severity; nor, on the other hand, surrender to misplaced
pity. While not
flinching from firmness, where firmness is called
for, he should approach his task with a humane and compassionate
understanding
of human frailties and the pressures of society which
contribute to criminality. It is in the context of this attitude of
mind
that I see mercy as an element in determination of the
appropriate punishment in the light of all the circumstances of the
particular
case.”
Holmes JA described the main purpose of
punishment at page 862A-B to be ‘deterrent, preventative,
reformative and retributive’
as set out in R v Swanepoel 1945
(A.D.) 444 at page 455. He referred to a passage in Gordon, Criminal
Law of Scotland where it
was stated that:
“The retributive theory finds the
justification for punishment in the past act, a wrong which requires
punishment or expiation….
The other theories reformative,
preventive and deterrent, all find their justification in the future
in the good that will be produced
as a result of the punishment.”
Prescribed minimum sentences
Since 1997 the Legislature prescribed
minimum sentences applicable in respect of a variety of offences
involving serious and violent
crimes with the introduction of the
Criminal Law Amendment Act 105 of 1977 (‘Criminal Law Amendment
Act’).
The provisions of section 51 of the
Criminal Law Amendment Act are applicable in this case in respect of
counts 9, 10 and 15. In
respect of count 9 of attempted robbery with
aggravating circumstances, the prescribed minimum sentence is 15
years imprisonment,
for count 10 of murder it is life imprisonment;
and in respect of count 15 of possession of prohibited firearm (which
is a fully
automatic firearm), the prescribed minimum sentence is 15
years imprisonment.
The Court may deviate from the minimum
sentences prescribed if it finds that there are substantial and
compelling circumstances
warranting such deviation. The well-known
decision of S v Malgas 2001(1) SACR 469 (SCA), set out how the
concept of ‘substantial’
and ‘compelling’
circumstances should be approached. Key to these guidelines is a
requirement for the Court:
“B… to approach the
imposition of sentence conscious that the Legislature has ordained
life imprisonment (or the particular
prescribed period of
imprisonment) as the sentence that should ordinarily and in the
absence of weighty justification be imposed
for the listed crimes in
the specified circumstances.
C. Unless there are, and can be seen to
be truly convincing reasons for a different response, the crimes in
question are therefore
required to illicit a severe standardised and
consistent response from the Courts.”
The concept of substantial and
compelling has not been defined in the legislation. It has been left
up to the courts to decide
based on the circumstances of each case as
to what constitutes compelling and substantial factors. What is
important to note is
that such circumstances do not require to be
exceptional in the sense of being seldomly encountered or rare.
Departure would be
justified if there is justification to do so,
having regard to the weight of all the relevant factors cumulatively.
In contrast
it would be improper to deviate from the minimum
sentence purely for personal preference or ‘flimsy’
reasons.
Submissions in mitigation and
aggravation
The defence presented to the Court
various factors which it argued should be regarded as substantial and
compelling and those are:
Firstly, that the accused is a 50 year old
family man, married with six children. One major daughter has a
business university
degree and is employed in a business environment.
The accused also has a major son who is diabetic and unable to work.
Four other
children are minors and the youngest son being four
year’s old. His wife works for an NGO in Khayelitsha.
Secondly, that the accused is a solid
citizen, being a businessman who participates in the economy by
virtue of his taxi business;
he also owns a house.
Thirdly, he spent approximately two
years in custody awaiting trial.
Fourthly, his participation in the
murder was limited. The argument advanced in this regard, is that
the deceased was killed by
a pistol shot whereas the accused was said
to have carried an AK47 firearm. In this regard, it was contended
that there was no
evidence that the accused contributed to the death
of the deceased.
Further that he was convicted on the
basis of dolus eventualis as opposed dolus directus. In this
connection, it was submitted
by Mr Van der Berg that the accused’s
conviction was based on a subscription to a mandate to commit robbery
and force was
used in the execution of such mandate. He submitted
that one is looking at participation in the form of foreseeability.
Fifthly, it was submitted that the
Court should consider the fact that if life imprisonment was imposed,
the accused would be 75
years of age before he becomes eligible for
parole and that would not be in the interests of the society as such
sentence would
remove hope of a further life and would be a crushing
sentence.
In aggravation of sentence the State
led the evidence of the deceased’s wife, Natasha Jones (‘Mrs
Jones’) who
testified about the impact the deceased’s
death has had on her and their 7 year old son. They had to receive
counselling
as a result of his death which they could not continue
attending due to financial constraints. Her son is still suffering
and
continues to ask for his father and does not understand why his
father is not there for him anymore. He is sometimes out of control
and the school has advised that he must go for further counselling.
Before the deceased died, the couple had applied for a mortgage
bond
which was approved. She did not pursue the bond because she could
not afford it. She now faces a severe financial crisis
and has had
to remove her son from a lot of activities as she cannot afford to
pay for them. She currently lives with her mother.
Mrs Jones was
evidently emotional when she gave evidence in court. She stated that
it was unfair that her husband’s life
ended in the way it did.
According to the State what was also
grave in this case was that the robbery was carefully planned by
robbers who used handguns,
and an AK47 which is a fully automatic
firearm. The lives of innocent people were put at risk.
The deceased was unarmed and his
colleagues were shot at and one of them was injured. The deceased
was a young man in his thirties
with his best years ahead of him.
Bullets that were fired from the scene could have hit anyone on the
way. Furthermore, the accused
failed to show any remorse and was
motivated purely by greed because he was a man with businesses and
earned an income. Mr Wolmarans
argued that there are no substantial
and compelling circumstances to warrant a deviation from the minimum
sentence prescribed.
As regards previous convictions, both
parties submitted that the accused should be regarded as a first
offender. The State however
submitted that the Court ought to put
the previous convictions of the accused into the ‘melting pot’,
on the basis
that the accused has not learnt any lesson from his
previous encounters with the law and that that should play a role on
the question
of whether he would be a candidate for rehabilitation.
The accused’s previous
convictions ranged from four convictions of theft in 1995; one of
assault in 1996 and two of fraud
in 2000 and 2009 respectively.
According to Mr Van der Berg, the Court should not place any weight
on the convictions dating to
1995, 1996 and 2000. The only one with
some currency is the conviction of fraud in 2009, which in his view
may coincide with the
attempted robbery because it contains an
element of dishonesty. He contended that it has no relevance to the
other offences and
that the accused is effectively a first offender,
which is an element that the courts have regarded to be a cogent
mitigating circumstance.
Offences
Dealing with the offences. The
incidences which gave rise to the conviction of the accused occurred
on 20 September 2013 and on
25 October 2013 respectively. On 25
October 2013 the accused together with four others, armed with
pistols, an AK47 and an assault
rifle, set out to rob a Coin Security
vehicle which was parked in Monte Vista Boulevard, Bellville
District, in front of an ATM,
using a white Mazda bakkie which was
stolen earlier on 20 September 2013 in Rondebosch. They removed the
bakkie’s canopy
and changed the registration numbers by putting
false number plates on the vehicle in order to facilitate their
assignment and
disguise their evil deeds. The Mazda bakkie was later
found abandoned.
Their expedition was unsuccessful
because they encountered resistance from a crew member of the Coin
Security vehicle. The attackers
pretended to be customers walking
around and/or coming out of nearby shops. One of them was talking on
a cell phone. These men
surprised the crew member, Witbooi who was
in charge of securing the area by attacking him and charging towards
the Coin Security
van.
They did not get what they wanted but
shot Witbooi in the shoulder and also at the van particularly aiming
at Hloi, the man responsible
for carrying the cash who was inside, at
the back of the van. The bullet did not penetrate as the vehicle was
bullet proofed.
The gunfire that ensued resulted in the death of the
driver of the Coin Security vehicle, Jones, (‘the deceased’).
As they were fleeing the scene, they
met up with the District Watch security officers, Butler and Kotze
who were alerted to the
alarm activations from a pharmacy in Monte
Vista Boulevard. Kotze shortly thereafter noticed a seeming robbery
in progress in
that street. A further shootout between Butler and
the attackers erupted at the intersection of Monte Vista Boulevard
and Diaz
Road, where an AK47 firearm was fired from the back of the
Mazda bakkie and shots exchanged with pistols from both vehicles.
Both
Butler and Kotze were not injured from this encounter.
All the witnesses testified about how
horrifying the ordeal was for them and how they feared for their
lives as this was happening.
Hloi was so scared that he locked
himself in the back of the Coin Security van. Witbooi who managed to
fend off the attackers
also joined him in the back of the van as he
did not know how many assailants were still around. Kotze ran ‘for
his life’
and went to hide in the dentist’s surgery and
Butler relayed how thankful he was to be alive after this encounter
as one
bullet missed him by 30 centimetres.
This attack happened in daylight in the
afternoon and in the public street which was commercially active and
naturally would have
people walking up and down visiting shops in the
area and vehicles moving around.
Interests of the Society and
seriousness of the crimes
Cash-in-transit heists have become the
order of the day in South Africa. Many lose their lives only because
of greed from those
who think they are entitled to claim what belongs
to others with impunity and without working for it. Families in our
country
shed tears on a daily basis because of the loss of their
loved ones due to these callous acts.
Hopefully the time will come when sense
will prevail, and when the dignity and respect of other people’s
lives and property
would be valued. Society demands a certain amount
of retribution/punishment for crimes which are rife. The courts
should continuously
send out strong messages that such heinous acts
will not be tolerated.
The Court has before it one accused in
an act which was committed together with four others who are possibly
still at large within
the communities and who fled with firearms that
they used to commit these crimes.
Appropriate sentence
In considering the appropriate
sentences the Court must consider all the relevant circumstances
before it. These factors must be
considered collectively in coming
to a decision of what an appropriate sentence should be. The mental
approach that the Court
engages in is indeed not a straightforward
one and the approach is also not a straightjacket approach. Whilst
the Court is permitted
to look at case law as a guideline as to what
sentence should be appropriate under what circumstances, each case
remains unique.
In other words, the balancing exercise depends on
the circumstances of each case. The court in S v Bailey 2013(2) SACR
533 (SCA)
acknowledged at paragraph 21 that the most difficult
question to answer is always a question of what are substantial and
compelling
circumstances. It noted that: “the term is so
elastic that it can accommodate even the ordinary mitigating
circumstances.”
The court in that case held that the term
involved a value judgment on the part of the sentencing court. It
further found the
definition in S v Malgas supra at paragraph 22 to
be ‘illuminating and helpful’. In Malgas Marais JA noted
in that
relevant paragraph that:
“The greater the sense of unease
a court feels about the imposition of a prescribed sentence, the
greater its anxiety will
be that it may be perpetrating an injustice.
Once a court reaches the point where unease has hardened into a
conviction that an
injustice will be done, that can only be because
it is satisfied that the circumstances of the particular case render
the prescribed
sentence unjust or, as some might prefer to put it,
disproportionate to the crime, the criminal and the legitimate needs
of society.
If that is the result of the consideration of the
circumstances the Court is entitled to characterise them as
substantial and
compelling and such as to justify the imposition of a
lesser sentence.”
Both parties were in agreement that the
offences were very serious. Dangerous and deadly weapons were used
with shots fired liberally.
The seriousness of these crimes and
their impact on the society and those directly affected cannot be
understated. An innocent
young man lost his life which has left his
family without a husband and a father who was the main provider of
income for the family.
The traumatic loss is evidently still being
felt by the family of the deceased. They have to live with this
experience for the
rest of their lives. Mrs Jones emotionally
relayed how their 7 year old son has to grow up without a father to
teach him about
being a man. The acts of the accused and his
co-perpetrators left devastation behind.
There were others who were fired at and
who could have been injured or killed. They were also emotionally
affected by the incidents.
There were also members of the community
who were innocent bystanders within the vicinity of the incidence who
were also at risk
as the area was turned into a war zone. Against
that background the accused deserves a lengthy sentence without a
doubt.
The age of the accused is a factor that
should be taken into consideration in the Court’s view. At 50,
the accused is not
a young man. It is a fact that if the Court were
to impose a minimum sentence of life imprisonment, the accused will
still be
in prison at least by the age of 75 years.
By stating this fact, the Court is not
taking into account policy arrangements of the executive relating to
parole and it is also
not intending to tailor the sentences it deems
appropriate with those considerations in mind.
The age of the accused on its own, the
Court agrees, cannot be a compelling reason to deviate from the
minimum sentence. Whilst
the accused does not have a clean record,
per se, he is to be regarded as a first offender for the murder which
is the ‘flagship’
offence in this case. The same applies
to the attempted robbery and possession of prohibited firearm
offences. It is also notable
that the accused was last involved in
the violent crime some 19 years ago and that was for assault for
which he received a suspended
sentence of six months. The Court does
take into account the fact that the accused has had brushes with the
law in the past, the
latest of these being fraud committed some six
years ago, which is an element of dishonesty. The four theft
convictions happened
some 20 years ago in 1995. Apart from the fact
that those convictions happened a long time ago, it is the first time
that the accused
has been convicted of offences as serious as in this
case.
The case of S v M 2007(2) SACR 60 (W)
that the State referred to did not necessarily propagate for a view
that the first offender
status should not count. It simply restated,
inter alia, what is established which is that the issue of an accused
being a first
offender cannot be in and out of itself justify
departure from the minimum sentence ordained. The court in that case
found at
paragraph 69 that “At most, it would be one of the
considerations taken into account for exploring the possibility that,
in conjunction with other factors, it may persuade the sentencing
court to make such a finding.”
Furthermore, the accused spent two
years in custody awaiting finalisation of the trial. This is a
relevant factor that the Court
takes into account.
The personal circumstances of the
accused also do indicate that he has some stability in his family and
he contributed productively
to both the family and the community
through his taxi business. That also counts in his favour.
It does however baffle one’s mind
why the accused would decide to undertake such a devastating path and
that does exasperate
matters.
Whilst the legislature, might have seen
it fit to place murder committed in the course of a robbery with
aggravating factors and
also with common purpose as those categories
of crime deserving of life imprisonment, it could not have been the
legislature’s
intention that those convicted of such crimes
would automatically be sentenced to life imprisonment or would be
uniformly sentenced.
Sentences must still be individually
considered.
Life imprisonment is an ultimate
sentence which must be imposed in cases where, inter alia, there is
no hope of rehabilitation or
an accused regaining stability in his
life and community. The Court must be mindful not to impose a
sentence which has a result
of ultimately crushing the person if
circumstances are such that the sentence of life imprisonment would
be disproportionate.
Having evaluated and weighed all the
relevant factors and submissions in this case cumulatively, the Court
is of the view that substantial
and compelling circumstances do exist
to justify departure from the prescribed minimum sentences. The
Court is satisfied that
a sentence of life imprisonment will be
unjust.
Nonetheless, the crimes committed and
in particular the murder remain particularly horrific and of the
severe nature and should
still be viewed in relation to what the
legislature had in mind, when prescribing minimum sentences which is
imposition of severe
punishment in serious and violent cases. A
lengthy sentence of imprisonment which meets the crime, the criminal,
and the interests
of the society would accordingly be just and
appropriate in this case particularly in respect of murder.
Reasons for departure in respect of
murder are equally applicable in the counts of robbery with
aggravating circumstances and prohibited
possession of a firearm. As
regards possession of a firearm, it has been held by the full bench
of this division in Swartz v S
(A430/13) [2014] ZAWHCH 113 (4 August
2014) that the Criminal Law Amendment Act is applicable. Both the
defence counsel and the
state agreed that that was the position in
respect of count 15. Unlawful possession of a prohibited firearm is
regarded as a serious
offence, which attracts heavy punishment. Same
can be said about attempted robbery with aggravating circumstances
for which purpose
this firearm was carried and used. In respect of
the theft and attempted murder convictions the evidence is quite
clear.
In view of all the circumstances the
accused is accordingly sentenced as follows:
1. IN RESPECT OF COUNT 8, THEFT OF THE
MOTOR VEHICLE, THE ACCUSED IS SENTENCED TO 3 (THREE) YEARS
IMPRISONMENT.
2. IN RESPECT OF COUNT 9, THE ATTEMPTED
ROBBERY WITH AGGRAVATING CIRCUMSTANCES, THE ACCUSED IS SENTENCED 12
(TWELVE) YEARS IMPRISONMENT.
3. IN RESPECT OF COUNT 10, MURDER, THE
ACCUSED IS SENTENCED TO 20 (TWENTY) YEARS IMPRISONMENT.
4. IN RESPECT OF COUNT 11, ATTEMPTED
MURDER, THE ACCUSED IS SENTENCED TO 8 (EIGHT) YEARS IMPRISONMENT.
5. IN RESPECT OF COUNT 12, ATTEMPTED
MURDER, THE ACCUSED IS SENTENCED TO 8 (EIGHT) YEARS IMPRISONMENT.
6. IN RESPECT OF COUNT 13, ATTEMPTED
MURDER, THE ACCUSED IS SENTENCED TO 8 (EIGHT) YEARS IMPRISONMENT.
7. IN RESPECT OF COUNT 14, ATTEMPTED
MURDER, THE ACCUSED IS SENTENCED TO 8 (EIGHT) YEARS IMPRISONMENT.
8. IN RESPECT OF COUNT 15, POSSESSION
OF PROHIBITED FULLY AUTOMATIC FIREARM, THE ACCUSED IS SENTENCED TO 10
(TEN) YEARS IMPRISONMENT.
9. IN RESPECT OF COUNT 16, POSSESSION
OF AMMUNITION, THE ACCUSED IS SENTENCED TO 3 (THREE) YEARS
IMPRISONMENT.
10. SENTENCES ON COUNTS 8, 9, 11, 12,
13, 14, 15 AND 16 WILL RUN CONCURRENTLY WITH THE SENTENCE ON COUNT
10. THE EFFECTIVE SENTENCE
IS 20 (TWENTY) YEARS IMPRISONMENT.
11. THE ACCUSED IS DECLARED UNFIT TO
POSSESS A FIREARM IN TERMS OF
SECTION 103
OF THE
FIREARMS CONTROL ACT
60 OF 2000
.
BOQWANA, J