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[2017] ZAWCHC 18
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J.B v S (A481/16) [2017] ZAWCHC 18; 2017 (1) SACR 553 (WCC) (23 February 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
case
no: A481/16
In
the matter between:
J
B Appellant
and
THE
STATE Respondent
JUDGMENT
SAVAGE
J
:
[1]
On 20 October 2015 the appellant, who was 16 years old at the date of
commission of the offences, was convicted in the Parow
Regional Court
of one count of murder, two counts of attempted murder, one count of
possession of an unlicensed firearm and one
count of possession of
ammunition.
[2]
Following his conviction on all counts, on 8 December 2015 the
appellant, who was by then 18 years old, was sentenced to an
effective sentence of 19 years’ imprisonment: 10 years for
murder; 3 years each for two counts of attempted murder; 10 years
for
the unlawful possession of a firearm; and 3 years for the unlawful
possession of ammunition. The conviction for murder was
ordered to
run concurrently with the other sentences imposed.
[3]
The matter was subject to automatic review in terms 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 appellant also had an
automatic right to appeal in terms of section 84(1)(a)
of the CJA and
could note an appeal without having to apply for leave in terms of
section 309B of the CPA.
[4]
The matter came before Kose AJ by way of automatic review who, on 9
February 2016, determined that the proceedings had been
in accordance
with justice. Subsequently, on 12 October 2016 the appellant lodged
an appeal against sentence only.
[5]
In light of the determination by Kose AJ, the Judge President of this
division constituted a full bench to hear this appeal.
Counsel were
informed of this fact and invited to file further submissions prior
to the hearing of the appeal as to the correctness
(or otherwise) of
the appellant’s conviction, as submissions had only by that
date been filed in respect of the appeal against
sentence.
Appeal
against conviction
[6]
The evidence for the state before the trial court was that Ms Abigail
Scheepers was standing at the gate of the tavern where
the offences
occurred in Bishop Lavis, Cape Town when the appellant came to the
gate and wanted to enter the premises. He was informed
that he was
under age but nevertheless proceeded to enter. Ms Scheepers heard
shots go off and saw the appellant in possession
of a firearm.
[7]
Mr Emmanuel Scheepers saw the appellant shooting in the tavern and
shouted out to him to stop. The appellant turned and fired
a shot at
Mr Scheepers which missed him. He then managed to grab the appellant
and he and Mr Shaun Kock tried to wrestle the firearm
from the
appellant’s hand. A further shot was fired by the appellant
before he dropped the firearm during the tussle. Mr
Kock picked it up
and handed it over to a member of the public. Ms Scheepers denied
that a person wearing a brown jacket had fled
the scene.
[8]
Ms Viola Dolphin was seated at the front table inside the tavern when
she heard gunshots going off. She lay on the floor and
when she felt
pain she realised she had been shot. Ms Emily Scheepers was killed in
the shooting. All state witnesses were adamant
that the appellant was
the only person shooting on the scene.
[9]
The appellant’s version was that he was standing in line to buy
alcohol at the tavern when shots went off. He fell to
the ground
while others fled from the tavern. A man in a brown jacket ran out of
the tavern and as he did he fell and lost his
firearm, before
standing up and running away. The appellant, who had been on the
ground near to this man, was confronted as having
been with the
shooter.
[10]
The trial court took account of the fact that the appellant was on
his own version on the scene of the crimes but, according
to him, was
outside at the time of the shooting. The trial court found that his
version failed to explain why three state witnesses
positively
identified him as having been the shooter inside the tavern. The
court also found his version that he lay on the ground
when others
were running away “
inherently improbable to the point of not
believable
”. The appellant was found to be an unimpressive
witness in respect of whom nothing positive could be said and that he
could
“
lie with a straight face
”. His evidence was
found not to stand against that of the state witnesses in
circumstances in which it appeared that he was
deliberately
attempting to conceal the identity of the person who was working with
him. Consequently, the appellant was convicted
on all counts.
[11]
Counsel for the appellant contended that the trial court had
materially misdirected itself in convicting the appellant, with
undue
weight given to the contradictory evidence of the state witnesses
whose evidence was open to criticism. It was submitted
that the
appellant’s version was reasonably possibly true and that the
state had been unable to prove that the appellant
was lying. With
insufficient evidence before the trial court which proved beyond
reasonable doubt that the appellant was guilty
of the offences, the
conviction cannot stand and, it was submitted, falls to be set aside.
[12]
The state opposed the appeal against conviction contending that the
conviction of the appellant was sound and based on a rational
and
thoughtful evaluation by the trial court of the facts before it. The
eye witness accounts were, it was submitted, credible
whose evidence
was properly accepted, while the appellant’s version was highly
improbable. The minor discrepancies in the
evidence of the state
witnesses were not of a material nature and did not warrant a
different conclusion.
Appeal
against sentence
[13]
The trial court in sentencing the appellant took account of the
severity of the offences committed by the appellant and had
regard to
s 69(1)(e) of the CJA which requires that imprisonment is “
a
measure of last resort
”. A long custodial sentence of
an effective 19 years in prison was imposed given the seriousness of
the appellant’s
brazen crimes in circumstances in which his
motive went unexplained and his accomplice concealed.
[14]
The trial court noted that although the appellant was described by
his grandparents as a non-violent person who was well-behaved
and
attended church with them, the evidence before the court concerning
the his misconduct in the youth care facility into which
he was
placed, did not accord with his grandparent’s description.
Regard was had to the triad of factors to be considered
by a court in
sentencing, with account taken of the serious nature of the offences
and the fact that the appellant had acted as
an adult and showed no
remorse for his criminal misconduct.
[15]
On appeal it was submitted for the appellant that the trial court had
misdirected itself in relation to sentence in not complying
with the
provisions of chapter 10 and ss 69(1)(a)-(e) and 69(4) of the CJA, by
failing to consider sentencing options set out in
ss 72-76 of the Act
and not complying with the provisions of s 77(5). Counsel for the
appellant submitted that in the circumstances
the sentence imposed on
the appellant was disturbingly inappropriate and warranted
interference by this Court given that he was
a sixteen year old first
offender at the time of the commission of the offences, who had
completed grade 8, was unemployed and
dependent on his grandparents.
[16]
Although the state opposed the appeal against sentence, it conceded
that the 19-year term of imprisonment imposed was inordinately
harsh
and warranted the interference of this Court. While it was contended
that it was appropriate for the trial court to impose
a long term of
imprisonment given that from the facts his conduct was premeditated
and he showed no remorse, it was material that
the appellant was 16
years old when he committed the offences and was 18 when he was
sentenced. The state conceded that a sentence
was not imposed “
for
the shortest appropriate period of time
” as required by the
CJA and proposed that the sentence of 10 years’ imprisonment
each imposed in respect of counts
1 and 4 be ordered to run
concurrently and that the sentences of three years imprisonment
imposed in respect of counts 2, 3 and
5 be ordered to run
concurrently. This would give the appellant an effective term of 13
years imprisonment.
Evaluation
[17]
It falls to the state to prove its case against an accused beyond
reasonable doubt. In doing so it is trite that
the
balance of evidence must
weigh “
so heavily in favour
of the state as to exclude any reasonable doubt about the accused’s
guilt
” (
S v Chabalala
2003 (1) SACR 134
(SCA) at
139).
[18]
Three state witnesses saw the appellant on the scene of the crimes in
Bishop Lavis with a firearm, firing the shots which killed
the
deceased and which attempted to kill two other people on the scene.
The trial court approached the evidence as to the identification
of
the appellant with the appropriate caution required by
S v Mtethwa
1972 (3) SA 766
(A). It applied its mind to whether the appellant’s
version - that he did not fire the shots which killed Ms Scheepers
and
attempted to cause the death of two others - was reasonably
possibly true. Having regard to the evidence before it the trial
court
cannot be faulted for rejecting the appellant’s version
as inherently improbable and concluding that the state had proved
the
guilt of the appellant on all counts.
[19]
It follows that there exists no basis to justify the interference by
this Court with the trial court’s conviction of
the appellant
on all counts. The appeal against conviction must accordingly fail.
[20]
Turning to
sentence, it is trite that sentencing ‘
is
pre-eminently a matter for the discretion of the trial court
’.
S v
Pillay
1977
(4) SA 531
(A) at 534H–535A;
S
v Fazzie
1964
(4) SA 673
(A).
[21]
Section 69(4) requires a child justice court when imposing a sentence
involving imprisonment to take into account the seriousness
of the
offence with due regard to the harm done or risked through the
events, and the culpability of the child in causing or risking
harm;
the protection of the community; the severity of the impact of the
offence on the victim; the previous failure of the child
to respond
to non-residential alternatives, if applicable; and the desirability
of keeping the child out of prison.
[22]
Section 28(1)(g) of the Constitution provides that:
‘
Every child has
the right – not to be detained except as a measure of last
resort, in which case, in addition to the rights
a child enjoys under
sections 12 and 35, the child may be detained only for the shortest
appropriate period of time …
’.
[23]
As was stated in
S v N
[2008] ZASCA 30
;
2008 (2) SACR 135
(SCA) at para 39,
prison must be a last resort for a child offender and where
unavoidable its form and duration should also be
tempered on the
basis that ‘(e)
very day he spent in prison should be because
there is no alternative
’.
[24]
In
S v CS
2016 (1) SACR 584
(WCC) the Court emphasised that in
sentencing a child the ordinary considerations relating to sentencing
i.e. the nature of the
crime committed, the personal circumstances of
the offender and the interest of society are to be considered. At the
same time
regard must also be had to the aims of punishment:
deterrence, rehabilitation, prevention and retribution. In addition,
in accordance
with s 69(1), the child is to be encouraged to
understand the implications of, and be accountable for, the harm
caused; the court
must promote an individualised response which
strikes a balance between the circumstances of the child, the nature
of the offence
and the interests of society; promote the
reintegration of the child into the family and community; ensure that
any necessary supervision,
guidance, treatment or services which form
part of the sentence assist the child in the process of
reintegration; and use imprisonment
only as a measure of last resort
for the shortest appropriate period of time.
[25]
In
S v Fredericks
2012 (1) SACR 298
(SCA) at para 13 and 14
the trial court was found to have over-emphasised the seriousness of
the offences at the expense of the
youthfulness of the offender in
sentencing a 14 year old to 25 years’ imprisonment, a sentence
which was found to be ‘
disturbingly inappropriate
’.
In addition, a misdirection was committed in failing to take into
account the cumulative effect of the sentences or to
order that the
sentences imposed, or part thereof, run concurrently.
[26]
As in
Fredericks
, in the current matter all offences were
committed in one place over the course of a limited period of time
and one spree of criminal
misconduct. There can be no doubt that
given the grave nature of the offences committed, their cumulative
effect insofar as there
were three victims on the same scene and the
absence of any explanation as to the motive, nor any sign of remorse
shown, a custodial
sentence is the only appropriate sentence in the
circumstances of the matter.
[27]
However, an effective sentence of 19 years imprisonment for a first
offender who was 16 years old at the date of commission
of the
offences appears to me to be startlingly inappropriate. In imposing
such sentence it also does not appear that appropriate
regard was
had, as required by s 77(5) of the CJA, to fact that the term of
imprisonment imposed is to be antedated by the number
of days that
the child has spent in prison or a child and youth care centre prior
to the sentence being imposed.
[28]
Inordinately long periods of imprisonment have not been embraced by
our courts, even for adult offenders. This is more acutely
so in the
case of a child offender even where a serious crime has been
committed. In
S v Skenjana
1985 (3) SA 51
(A) at 55C-D the
court noted that it was not ‘
in the public interest that
potentially valuable human material should be seriously damaged by
long incarceration’.
The caution was sounded in
S v
Khumalo and another
[1984] ZASCA 30
;
1984 (3) SA 327
(A) at 331 that ‘
unduly
prolonged imprisonment brings about the complete mental and physical
deterioration of the prisoner’;
and that it is not the
purpose of incarceration to have offenders ‘
visited with
punishments to the point of being broken.’
S v Sparks
and Another
1972 (3) SA 396
(A) at 410G.
[29]
In
S v Dlamini & another
[2012] ZASCA 207
(November 2012)
at para 14 the court stated that where ‘
the cumulative
effect of the sentence imposed is so inappropriate…this court
is permitted to intervene and substitute its
discretion for that of
the trial court’
. This was so even though the crime in that
matter was clearly was one of the worst kinds of house robberies and
it was recognised
must have been ‘
a particularly brutalizing
experience’
for the victim.
[30]
The cumulative effect of the sentence imposed on the child offender
in this matter, in spite of the gravely serious nature
of the crimes
committed, is unduly harsh. An effective period of imprisonment of 19
years is excessively long having regard to
the fact that the
appellant was a 16 year old first offender at the time the crimes
were committed. It does not reflect an appropriate
regard to the
imposition of a sentence for the shortest appropriate time and in my
mind visits a punishment on the appellant which
is so long for a
young person that it does little to allow the offender to keep the
hope of a different life, outside of a world
of crime, alive.
[31]
Furthermore, although the appellant was charged (in count 4) with
having been possession of a semi-automatic pistol, the state
failed
to prove the nature of the firearm and he was thus correctly
convicted of possession of an unlicensed firearm only. Consequently,
the sentence imposed on this count of 10 years imprisonment is unduly
harsh.
[32]
For these reasons it is appropriate for this Court intervene and to
substitute its discretion for that of the trial court insofar
as
count 4 as well as the period of concurrency of the sentences imposed
on the appellant is concerned.
[33]
In the circumstances, it is appropriate that the sentence of ten (10)
years imprisonment imposed in respect of count 4 be set
aside and
substituted with five (5) years imprisonment. In addition, counts 1
and 4 should be ordered to run concurrently, and
two years of the
three year sentences imposed in respect of counts 2, 3 and 5 should
also be ordered to run concurrently with the
sentences imposed in
counts 1 and 4. This has the result that an effective term of 13
years imprisonment is imposed on the appellant.
Such reduced period
of imprisonment, in my mind, gives effect to s 28(1)(g) of the
Constitution, has regard to the period spent
in custody and reflects
the appropriate mercy while not ignoring the seriousness of the
heinous crimes committed.
Order
[34]
In the result, I propose an order as follows:
1. The appeal against
conviction fails.
2. The appeal against
sentence is upheld only to the following extent:
“
1.
The sentence of ten (10) years’ imprisonment imposed in respect
of count 4 (unlawful possession of firearm) is set aside
and
substituted with a sentence of five (5) years imprisonment.
2.
The sentence imposed in count 4 (5 years imprisonment) and two (2)
years of each of the three (3) year terms of imprisonment
imposed in
respect of count 2 (attempted murder), count 3 (attempted murder) and
count 5 (unlawful possession of ammunition) respectively,
shall run
concurrently with the sentence of ten (10) years’ imprisonment
imposed in count 1 (murder).
3.
The accused is sentenced to an effective thirteen (13) year term of
imprisonment.
4.
The sentences imposed in respect of all counts are antedated to 8
December 2015 (bring the date of imposition of sentence by
the trial
court) in terms of s 282 of Act 51 of 1977.”
_______________________
SAVAGE
J
I
agree and it is so ordered.
_______________________
SALDANHA
J
I
agree.
_______________________
CLOETE
J
Counsel
for the Appellant
: Adv. H Carstens
Counsel
for Respondent
: Adv. L A Friester-Sampson
Date
of hearing
: 17 February 2017
Date
of judgment
: 23 February 2017