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[2016] ZAWCHC 24
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C.D.S v S (A505/15) [2016] ZAWCHC 24; 2016 (1) SACR 584 (WCC) (9 March 2016)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: A505/15
DATE:
09 MARCH 2016
In
the matter between:
[C…….]
[D………]
[S……]
.............................................................................................
First
Appellant
And
THE
STATE
............................................................................................................................
Respondent
Coram:
Meer J, Henney J et Klopper AJ
JUDGMENT
DELIVERED ON 9 MARCH 2016
HENNEY
J
[1] The appellant is
a child offender who was 15 years old at the time of the commission
of the offences with which this appeal
is concerned. He was
convicted on 29 June 2015 by the Regional Court sitting at Parow on
the following charges: murder; possession
of a firearm in
contravention of
section 3
of the
Firearms Control Act 60 of 2000
, in
that he possessed a 9mm semi-automatic firearm; and of contravening
section 90
of the
Firearms Control Act 60 of 2000
, in that he was in
possession of 9 rounds of 9mm ammunition.
[2] On 30 July 2015,
he was sentenced to 10 years’ imprisonment on the murder
charge, 3 years’ imprisonment for possession
of a firearm and 1
year imprisonment on the possession of ammunition charge. The
court ordered the sentences imposed on counts
2 and 3 to run
concurrently with the sentence imposed on count 1.
[3] This matter was
subject to an automatic review in terms of the provisions of section
85 of the Child Justice Act 75 of 2008
(“CJA”) read with
Chapter 30 of the Criminal Procedure Act 51 of 1977 (“CPA”).
The matter was transmitted
for review on 17 August 2015 and served
before
Maartens AJ
.
[4] The appellant
also had an automatic right to appeal in terms of section 84 (1)(a)
of the CJA due to the fact that he was under
the age of 16 years at
the time of the commission of the offence and could note an appeal
without having to apply for leave in
terms of Section 309B of the
CPA. This appeal was lodged with the Clerk of the Court on 14 August
2015.
[5] In terms of
section 85(2) of the CJA, the matter should therefore not have been
transmitted for review by the Regional Magistrate
or Clerk of the
Court because according to this provision, if an appeal has been
noted in terms of section 84 the matter should
not be sent on review.
[6] On 7 September
2015,
Maartens AJ
in any event made a determination that the
proceedings were in accordance with justice. This court is now
seized with the
appeal.
[7] In the light of
the determination made by
Maartens AJ,
the Judge President of
this division constituted a full bench to hear this appeal.
Counsel appearing for the appellant conceded
that the Regional
Magistrate correctly convicted the accused. The appeal is
therefore solely directed at sentence.
The presiding Judge
requested the parties to address the court during the hearing of the
appeal on the following issues:
“
1.
Whether the court in sentencing the appellant had complied with the
provisions of Chapter 10 of the
Child Justice Act, and
in particular,
if there was compliance with
s69(1)(a
-e) and
s69(4)
;
1
50%">
2.
Whether the court a quo considered
the sentencing options as set out in
s72
,
73
,
74
and
76
of the CJA;
3.
Whether the provisions of
s77(5)
of
the CJA. are peremptory and if so, whether the court a quo complied
therewith.”
The Facts on
which the conviction is based
[8] On the morning
of 6 June 2014 at approximately 8h00, Jean Hokim who is the sister of
the appellant’s grandmother was walking
down Rachel Street in
Elsies River. A person driving a motor bike (“the
deceased”) drove towards and past her.
She heard
someone say, “he must be shot”. She turned
around, and saw the appellant and accused no.2
in the Court a quo,
standing in front of the driver who was seated on the motor bike. She
was about 8 metres away from them at
the time. Next, she
saw the appellant draw a gun and shoot the deceased. She could
not say how many shots he
fired at the deceased. The deceased
fell to the ground. Ms Holkim ran home. There she heard that
the person on the
motor bike who was known as “Chessie”
had died.
Grounds of appeal
against sentence
[9] The ground of
appeal is that the sentence of 10 years’
direct imprisonment was harsh, given the
fact that the
appellant was 15 years old when he committed the offence and 17 years
old when he was sentenced.
Discussion
[10]
The provisions of the
Child Justice Act are
clearly applicable to the
appellant. In terms of
section 4
of the CJA, the appellant is a
person in the Republic who committed an offence when he was 10 years
or older, but under the age
of 18 years when he was arrested and
brought before court for this offence.
[11] Any court that
imposes a sentence upon a child offender must sentence such child
offender in terms of the provisions of Chapter
10 of the CJA.
Section 68
states: “
A child justice court must after,
convicting a child, impose a sentence in accordance with this
Chapter
”.
In
S v LM
2013
(1) SACR 188
(WCC), this court at paras 18 – 19 held the
following:
“
[18]
An important deviation from the provisions of the CPA is contained in
ch 10, which deals with the sentencing of a child
in terms of the
CJA,
s 68.
A child justice court is obliged to impose a sentence in
accordance with ch 10. Only where the CJA expressly empowers a court
to
do so, may a child be sentenced in accordance with the provisions
of the CPA.
[19]
It is clear from the above provisions that the CJA creates a separate
and distinct system of criminal justice for children,
the legal
mechanisms and processes of which may indeed be different from those
set out in the CPA. […]”
[12] When a court
sentences a child, the objectives of sentencing and factors that it
must consider are set out at
section 69
of the CJA.
[13] A child justice
court must also in terms of
section 71(1)
request a pre-sentence
report prepared by a probation officer unless the child has been
convicted of a Schedule 1 offence, or where
the requiring of such a
report would cause undue delay. This has been complied with.
The court a quo did request and
was furnished with a pre-sentence
report as well as a Victim Impact statement.
[14]
The sentencing options available to a child justice court are set out
in
Part 2
of Chapter 10,
sections 72
–
79
, which include a
sentence of imprisonment which may be imposed in terms of the
provisions of
s 77.
[15]
It goes without saying that Judicial Officers must apply the
provisions of the CJA relating to sentencing. They cannot
proceed as if the Act does not exist. One of the purposes of
the Act as set out in the preamble, is to establish a criminal
justice system for children, who are in conflict with the law, in
accordance with the values underpinning the constitution.
In
S
v RS and Others
2012 (2) SACR 160
(WCC) at para 30
Moses AJ
held the following:
“
[30]
The legislature has therefore in unequivocal terms incorporated those
principles, guidelines and considerations, as developed
by our
highest courts in the case law referred to above, in this Act, and
has elevated those, in the context of our juvenile justice
system, to
having legal force and effect. Non-compliance therewith will
henceforth not only be irregular, but also unlawful, in
violation of
the principle of legality.”
[16]
The Act also has as one of its objects, to create incrementally where
appropriate, special mechanism processes or procedures
for children
in conflict with the law that in broad terms takes into account
inter
alia
:
-
The past and sometimes unduly harsh measures taken against some of
those children;
-
The long term benefits of a less rigid criminal justice process that
suits these needs of children in conflict with the law, in
appropriate cases and wide range of appropriate sentencing options
specifically suited to children.
[17]
In applying to the CJA a court must also adhere to ordinary
considerations relating to sentencing, such as the triad
[1]
and the aims of punishment (deterrence, rehabilitation, prevention
and retribution). A Child Justice Court should also
consider the objectives
[2]
namely, it should
firstly
encourage the child to understand the implications of, and be
accountable for the harm caused.
Secondly
,
it should promote an individualized response which strikes a balance
between the circumstances of the child, the nature of the
offence and
the interests of society.
Thirdly
,
it should promote the reintegration of the child into the family and
community.
Fourthly
,
it should ensure that any necessary supervision, guidance, treatment
or services which form part of the sentence assist the child
in the
process of reintegration.
Lastly
,
the Court should use imprisonment only as a measure of last
resort and only for the shortest appropriate period of time.
[18]
A court should during the sentencing stage consider and address each
of these objectives, as set out in s 69(1).
[19]
In terms of the provisions of s 69 (4), a Child Justice Court, when
imposing a sentence involving imprisonment, must take the
following
factors into account:
1)
The seriousness of the offence with due regard to - the harm done or
risked through the offence, and the culpability of the child
in
causing or risking the harm;
2) The protection of
the community;
3) The severity of
the impact of the offence on the victim;
4) The previous
failure of the child to respond to non-residential alternatives, if
applicable; and
5) The desirability
of keeping the child out of prison.
Section
77 of the CJA states:
“
(1)
A
child justice court—
(a)
may not
impose a sentence of imprisonment on a child who is under the age of
14 years at the time of being sentenced for the offence; and
(b) when
sentencing a child who is 14 years or older at the time of being
sentenced for the offence, must only do so as a measure
of last
resort and for the shortest appropriate period of time.
(2) …
(3) A child
who is 14 years or older at the time of being sentenced for the
offence, and in respect of whom subsection (2) does
not apply, may
only be sentenced to imprisonment, if the child is convicted of an
offence referred to in—
(a) Schedule
3
[3]
;
(b) Schedule
2, if substantial and compelling reasons exist for imposing a
sentence of imprisonment; or
(c) Schedule
1, if the child has a record of relevant previous convictions and
substantial and compelling reasons exist for imposing
a sentence of
imprisonment.
(4) A child
referred to in subsection (3) may be sentenced to a sentence of
imprisonment
(a) for a
period not exceeding 25 years; or
(b) envisaged
in
section 276(1)(i)
of the
Criminal Procedure Act.
>
(5) A child
justice court imposing a sentence of imprisonment
must
antedate the term of imprisonment by take into account the number of
days that the child has spent in prison or child and youth
care
centre prior to the sentence being imposed.
”
(EMPHASIS ADDED)
[20]
It is accepted that the sentencing court should clearly state and
motivate how it arrived at a decision to impose a sentence
of
imprisonment, and whether it has exhausted the other sentencing
options prescribed at Chapter 10 of the CJA, and why such were
not
appropriate.
As
Cameron JA
(as he then was) held in
S v N
2008 (2) SACR
135 (SCA) at para 39:
“
[…]
Prison must therefore be a last resort. This bears not only on
whether we choose prison as a sentencing option,
but on the sort of
prison sentence we impose, if we must. So if there is a legitimate
option other than prison, we must choose
it; but if prison is
unavoidable its form and duration should also be tempered. Every day
he spends in prison should be because
there is no alternative.”
The
constitution in terms of
s 28
(1)(g) states that every child has the
right “
not to be detained except as a measure of last
resort
”.
[21]
The court
a quo
referred to and tried to strike a balance
between the circumstances of the appellant, the nature of the offence
and the interests
of society. However, it did not, as required, state
whether it considered other sentencing options as set out in
s 69.
Having said this, I note that the main charge of murder on which the
appellant was convicted is without a doubt a very serious
offence,
given the manner in which it was committed. It can be inferred
that there was some planning involved. The
deceased was
defenseless and vulnerable when he was shot at close range by the
appellant and there was no way to defend himself.
This was nothing
less than cold blooded murder. The attack on the deceased appeared to
be unprovoked. The appellant has shown no
remorse and refused to take
responsibility for his actions.
[22]
Given these facts, it would not have been entirely inappropriate to
impose a sentence of imprisonment like the Regional Magistrate
did.
Of all the matters the Court was required to consider under the
CJA, it failed to consider whether, given the
seriousness of the
offence, a sentence of direct imprisonment as a measure of last
resort would be the only appropriate sentence.
The Regional
Magistrate did not consider the desirability of keeping the appellant
out of prison. Furthermore, there is no
indication as to why he
did not consider other sentencing options as set out in Chapter 10.
He also failed to motivate why
the sentence of 10 years’
imprisonment was considered to be the shortest appropriate sentence.
[23]
In terms of
s 77
(5) a Child Justice Court must take into
consideration the number of days that the child has spent in prison
or a child and youth
care centre prior to the sentence being
imposed. The Regional Magistrate failed to take this into
account. This period
amounted to 9 months and 24 days, if one
has regard to the record.
[24]
In view of all of the above, the sentencing of the appellant was not
in accordance with the provisions of the CJA, and stands
to be
interfered with on appeal and substituted with an appropriate
sentence.
[25]
There is in my view sufficient evidence to enable this Court to do
so. In sentencing the Appellant I take cognizance of the
following:
(1) Having regard to the provisions of
s 69
, it is clear that the
appellant has refused to accept responsibility for his actions.
According to the probation officer,
the appellant told her that he
cannot be remorseful for something he did not do.
(2)Furthermore, according to the social
worker at Horizon, the place
of safety where he was incarcerated while awaiting trial, the
appellant did not attend school regularly
and often played truant,
co-operating only after intervention by a third party.
This is relevant to other sentencing
options as set out in
Part
2
of Chapter 10.
[26]
The attitude of the appellant in my view militates against his
reintegration into society. This is clearly not a case
where a
community based sentence or a sentence of correctional supervision
would be appropriate. A fine would also
be totally
inappropriate.
[27]
Mr Solomons for the appellant, submitted that consideration should
also be given to a sentence of compulsory residence in a
child and
youth care centre. His past experience at such a centre
coupled with the seriousness of the offence,
his lack of
remorse and accountability, militate strongly in my view, against a
sentence of compulsory residence in
a child and youth
care centre. Furthermore, given the fact that in terms of
s
76(2)
a child can only be sentenced to compulsory residence in a
youth care centre for a period not exceeding 5 years, or for a period
which may not exceed the date on which the child in question turns 21
years of age, which ever date is the earliest, such a sentence
would
in my view be too lenient in all the circumstances.
[28]
In my view this crime is particularly serious and requires that
retribution and deterrence should come to the fore and that
the
rehabilitation of the offender should play a lesser role. In
S
v Swart
2004 (2) SACR 370
(SCA) at para 12,
Nugent JA
held:
“
[12]
What appears from those cases is that in our law retribution and
deterrence are proper purposes of punishment and they must
be
accorded due weight in any sentence that is imposed. Each of the
elements of punishment is not required to be accorded equal
weight,
but instead proper weight must be accorded to each according to
the circumstances. Serious crimes will usually require
that
retribution and deterrence should come to the fore and that the
rehabilitation of the offender will consequently play a relatively
smaller role. Moreover, as pointed out in S v Malgas
2001
(1) SACR 469
(SCA)
(2001 (2) SA 1222)
in para [25] at
482f (SACR) and 1236E (SA), where a court finds that it is not
bound to impose a prescribed sentence 'the
sentence to be imposed in
lieu of the prescribed sentence should be assessed paying due regard
to the bench mark which the Legislature
has provided'.”
[29]
This position was followed in the matter of
S v Senatsi and
Another
2006 (2) SACR 291
(SCA) at para 7 where
Mthiyane JA
held:
“
[7]
Counsel for the State submitted, correctly in my view, that the trial
Judge was entitled to give due weight to the deterrent
and
retributive effects of punishment. He was not obliged to give equal
weight to each of the elements of punishment. In this regard
the
following remarks of Nugent JA in S v Swart are applicable:
'What
appears from those cases is that in our law retribution and
deterrence are proper purposes of punishment and they must be
accorded due weight in any sentence that is imposed. Each of the
elements of punishment is not required to be accorded equal weight,
but instead proper weight must be accorded to each according to the
circumstance. Serious crimes will usually require that retribution
and deterrence should come to the fore and that the rehabilitation of
the offender will consequently play a relatively smaller
role.'
In
the present matter the relative youth of the appellants must give way
to the deterrent and retributive effects of punishment.
The
aggravating features of the case justify such an approach. This is
one of those cases where any law-abiding and self-respecting
citizen
would be repelled by the conduct of the appellants. They took
advantage of a man whose only sin was to offer them
work. The
punishment meted out by the trial Judge fits the particular
circumstances of this case and there is no basis for us to
interfere.”
[30]
Given the circumstances of this case, and after giving due weight to
the elements of retribution and deterrence, it would be
appropriate
in my view that a sentence of direct imprisonment should be imposed
as a measure of last resort. I am also of
the view that the
sentence of 10 years imposed by the Regional Magistrate is not the
shortest appropriate sentence, coupled with
the fact that the court
a
quo
also failed to take into account the fact that the appellant
was in custody for 9 months and 24 days prior to being sentenced.
[31]
In light of all of the above, I come to the view that the shortest
appropriate sentence, given the seriousness of the
offence, the
interests of society as well as the fact that the appellant is still
a young person, would be direct imprisonment
for a period of 8 years.
[32]
I would therefore make the following order:
1.
The appeal against sentence succeeds.
2. The sentence
of 10 years imprisonment is set aside and replaced with the following
sentence:
“
8
years imprisonment”.
3. The sentence
is antedated to 30 July 2015.
HENNEY,
J
Judge
of the High Court
I
agree.
MEER,
J
Judge
of the High Court
I
agree, it is so ordered.
KLOPPER,
AJ
Acting
Judge of the High Court
[1]
See
S
v Zinn
1969
(2) SA 537
(A) at 540 G where the court held that the triad consists
of “the crime, the offender and the interests of society”.
[2]
Section
69
(1) of the CJA.
[3]
Murder
is a Schedule 3 offence in terms of item 3 of the Schedule.
Possession of firearms and ammunitions is also a Schedule 3
offence
in terms of item 17 of the Schedule.