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[2021] ZAWCHC 206
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Y.M v S (9530/2021) [2021] ZAWCHC 206 (19 October 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case Number: 9530 /
2021
In
the matter between:
Y[....]
M[....]
Appellant
and
THE
STATE
Respondent
Coram:
Samela et Wille, JJ
Heard:
(This matter was determined on the papers filed of record as at the
8
th
of October 2021).
Delivered:
(This judgment was delivered electronically to the representatives of
the parties on the
19
th
of
October 2021).
JUDGMENT
WILLE,
J
:
(SAMELA
J, concurring)
INTRODUCTION
[1]
This
is an ‘automatic’ appeal directed against the sentences
imposed upon the appellant by the lower court. I
say automatic,
because this appeal on sentence is before us in terms of
section 84
(1) (b) of the
Child Justice Act, 75 of 2008
[1]
.
[2]
The
appellant was convicted on (2) counts of robbery with aggravating
circumstances
[2]
, (1) count of
the unlawful possession of a firearm and (1) count of murder.
The appellant pleaded no contest and pleaded
guilty to the charges as
formulated by the respondent. He was sentenced as follows: on
the murder charge he was sentenced
to (10) years imprisonment: on
the (2) robbery charges he was sentenced (taken together for the
purposes of sentence), to
a period of (10) years imprisonment, (5)
years of this sentence was ordered to be served concurrently with the
(10) year sentence
imposed on the murder charge.
[3]
Finally
he was sentenced to (4) years imprisonment in connection with the
possession of an unlicenced fire-arm. This latter
sentence was
also ordered to run concurrently with the sentence of (10) years
imposed on the murder conviction. The appellant
was effectively
sentenced to (15) years imprisonment.
GROUNDS
OF APPEAL
[4]
The
grounds of appeal advanced on behalf of the appellant are the
following, namely: that the sentence imposed was shockingly
harsh and inappropriate: that due consideration was not given
to the fact that the appellant was a ‘minor’ at
the time
of the commission of the offences and that the appellant was
sacrificed at the altar of retribution, as opposed to that
of
rehabilitation.
THE
RELEVANT FACTUAL MATRIX
[5]
The
appellant was arrested on the 6
th
of December 2018. He was convicted and sentenced on the 14
th
of August 2019. The offences were committed between the 3
rd
of December 2018 and the 5
th
of December 2018. The sentences imposed upon the offender were
ante-dated to 5
th
of December 2018. The appellant was born on the 29
th
of May 2001. At the time when these offences were committed,
the offender was (17) years and (6) months of age.
[6]
The
offender admitted the following namely: that on the 3
rd
of December 2018, he threatened a Mr Beneke with a knife: that
he robbed the said Mr Beneke of his mobile phone: that
on the
same day he threatened a Mr Leotha with a knife: that he robbed
the said Mr Leotha of his firearm
[3]
:
that he was in unlawful possession of such firearm: that
on the 5
th
of December 2018, he intentionally and unlawfully murdered a Mr Agnew
by shooting him with the fire-arm that he had stolen from
Mr Leotha
and that he had no ‘reason’ or ‘motive’ for
killing Mr Agnew. He also conceded, in connection
with the
robbery offences committed by him, that both these complainants were
employed as security guards, at the relevant time.
[7]
The
content of the post-mortem report
[4]
indicated,
inter
alia,
no less than (4) gunshot wounds to the chest and neck area of the
deceased in connection with the murder conviction. This
report
was entered into the record and admitted for the truth of the content
thereof.
THE
SOCIAL WORKER’S REPORT
[8]
The
offender was raised by his mother. A father figure to his
upbringing and education was absent. The offender resided
with
his maternal grandmother. The area in which he grew up was
saturated by and with unemployment, substance abuse and drug
related
activities. He failed to complete grade (9) at school.
The offender denied that he belonged to a ‘gang’,
but
admitted that he was part of a group that enjoyed alcohol and smoked
cannabis.
[9]
The
offender has no previous convictions. He confirmed that he
together with his friends ‘continuously’ robbed
people of
their belongings in the area. He admits that he shot and killed
Mr Agnew while the latter was seated in his motor
vehicle. He
did regret the incident but ‘showed no visible emotion’
when reflecting upon this shooting incident
of murder.
[10]
The
‘domino effect’ of the murder of Mr Agnew was set out in
the social worker’s report. Briefly the following
bears
mentioning: that Mrs Agnew was emotionally destroyed by the
loss of her husband: that as a result she suffers
from eating
and sleeping disorders: that she suffers from depression: that
they as a family are struggling to cope
both emotionally and
financially with their loss and, that she has been admitted to a
mental health care facility for in-patient
treatment.
[11]
In
summary, the social worker recommended that the court of first
instance take into account the enormous impact and trauma suffered
by
the concerned families of the victim and the devastating impact on
the immediate community due to the crimes committed by the
offender.
DISCUSSION
[12]
It is trite law that in sentencing, the punishment should fit the
crime, as well as the offender,
be fair to both society and the
offender, and be blended with a measure of mercy.
[5]
In
S
v Masda
[6]
,
in referring to the case of
S
v Mhlakaza and Another
[7]
,
Saldulker AJA (as he then was), eloquently remarked as follows:
‘
A
sentencing policy that caters predominantly or exclusively for public
opinion is inherently flawed. It remains the court’s
duty
to impose fearlessly an appropriate and fair sentence even if the
sentence does not satisfy the public’
[13]
In
S
v Rabie
[8]
,
the philosophies and principles applicable in an appeal against
sentence were set out by Holmes JA, namely, that in every appeal
against sentence, whether imposed by a magistrate or a judge, the
court hearing the appeal should be guided by the principle that
punishment is pre-eminently a matter for the discretion of the trial
court and should be careful not to erode such discretion.
Hence
the further principle that the sentence should only be altered if the
discretion has not been ‘
judicially
and properly exercised’.
[14]
In
S
v Anderson
[9]
,
in dealing with the applicable legal principles as to attempt to
guide the court when requested to amend a sentence imposed by
a trial
court, Rumpff JA, affirmed as follows:
‘
These
include the following: the sentence will not be altered unless it is
held that no reasonable man ought to have imposed such
a sentence, or
that the sentence is out of all proportion to the gravity or
magnitude of the offence, or that the sentence induces
a sense of
shock or outrage, or that the sentence is grossly excessive or
inadequate,
or
that there was an improper exercise of his discretion by the trial
Judge, or that the interest of justice requires it’
[15]
Moreover, as held in
Malgas
[10]
,
a
court of appeal is enjoined to consider all other circumstances
bearing down on this question, to enable it to properly assess
the
trial court’s finding and to determine the proportionality of
the sentences imposed upon the offender. The constitutional
court
[11]
, has described an
appeal court’s discretion to interfere with a sentence only:
when there has been an irregularity
that results in a failure of
justice: or when the court
a
quo
misdirected
itself to such an extent that its decision on sentencing is
vitiated: or when the sentence is so disproportionate
or
shocking that no reasonable court could have imposed it.
[16]
From
the record of the proceedings in the court
a
quo
,
it is clear that the appellant to some extent planned these crimes.
The record does not reflect any suggestion that the
appellant showed
any form of genuine remorse at all. Regrettably, he does not
exhibit any real insight into the seriousness
of the crimes committed
by him. This, in turn goes to the issue of his moral
blameworthiness.
[17]
The court
a
quo
considered both the mitigating and the aggravating factors in
connection with these offences and referred to these clearly in the
judgment on sentence. In addition, the court
a
quo
highlighted
the violence and the threat of violence that was used against both
the complainants by the appellant and that the appellant
could have
injured the complainants. Moreover, it was accentuated that
this type of crime was prevalent in the area of the
jurisdiction of
the lower court.
[18]
It is so that child offenders deserve to be treated differently from
adult offenders. The
appropriate sentencing principles are now
set out in the CJA
[12]
, and
what this really means is that the sentences that were imposed upon
the offender in this case, first and foremost, must have
been in
proportion to the seriousness of the crimes he committed.
[19]
The court of first instance, was very much alive to the content of
the probation officers report
and took this into account when it
imposed the sentences upon the offender.
The
sentences imposed upon the appellant in connection with the crime of
robbery with aggravating circumstances, in these peculiar
circumstances, must accordingly in some measure, also reflect a
censure to this conduct and behaviour. The victims of these
crimes were respectively, robbed of a mobile phone and a firearm.
These items are not and were not necessities.
[20]
Taking into account which has been stated above, I am unable to
unearth any misdirection or irregularity
on the part of the court
a
quo
when it imposed the sentences upon the offender in this
matter. I also find no room to interfere with the sentences
imposed
in this matter. Accordingly, in all the circumstances,
I propose that the following order is granted, namely:
1.
That
the appeal in connection with the sentences imposed upon the
appellant is dismissed.
2.
That
the convictions and sentences imposed upon the appellant, are
hereby confirmed.
E. D. WILLE
(Judge
of the High Court)
I
agree and, it is so ordered:
M. I. SAMELA
(Judge
of the High Court)
[1]
The
‘CJA’ (read with Section 309B of the Criminal Procedure
Act, 51 of 1977 (the ‘CPA’) and Section 10
of the
Judicial Matters Amendment Act 42 of 2013 (the “JMA”).
[2]
As
defined in Section 1 of the CPA.
[3]
A
semi-automatic 9mm parabellum firearm.
[4]
Entered
into the record as an exhibit on a consensual basis.
[5]
S
v Rabie
1975(4) 855 (AD) at 862 G.
[6]
2010
(2) SACR 311
(SCA) at 315.
[7]
1997
(1) SACR 515
(SCA) at 315.
[8]
S
v Rabie
1975(4)
855 (AD) at 862 G.
[9]
1964
(3) SA 494
(AD) at 495 D-H.
[10]
S
v Malgas
2001 (1) SACR 469 (SCA).
[11]
S
v Boggards
2013 (1) SACR (CC) at [4].
[12]
Sections
69(1) and (2).