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2011
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[2011] ZAGPJHC 227
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S v Mahlangu and Others (0025/10) [2011] ZAGPJHC 227; 2012 (2) SACR 373 (GSJ) (2 August 2011)
NOT REPORTABLE
SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE NO
:0025/10
DATE
:02/08/2011
In the matter between
THE STATE
and
MAHLANGU T AND
OTHERS
.....................................................
Accused
S E N T E N C E
SATCHWELL J
: The purpose of sentencing
is usually considered to be threefold. Firstly to punish the
wrongdoer. Secondly
to deter or disencourage both the wrongdoer and
society generally from offending. Thirdly to rehabilitate the
offender so that
he turns away from crime.
In order to achieve these purposes in determining the appropriate
sentence we usually take into account the following factors,
the
nature and the details of the crime which have been committed, the
personal circumstances of the accused and the needs of and
the
response of society generally.
In the present case the offences of which these three accused have
been convicted each have a specified sentence. Unlawful possession
of firearms and ammunition carry a maximum sentence. Murder where it
is committed in the course of a robbery, which is a robbery
with
aggravating circumstances, or where it is a planned or premeditated
murder or where it is a murder committed by a group of
persons acting
together in the course of their common purpose or conspiracy is a
crime which Act 105 of 1997 has identified as
a crime attracting a
prescribed minimum sentence of life imprisonment. Robbery, where
there are aggravating circumstances has
been identified by Act 105 of
1997 as an offence where a first offender must be sentenced to
imprisonment for a prescribed minimum
sentence of not less than 15
years. In the present case the robbery is one with aggravating
circumstances, an extremely dangerous
weapon having been used, namely
the golf club.
Accordingly I am obliged in terms of Act 105 of 1997 to sentence
each of these accused to a minimum sentence of life imprisonment
plus
imprisonment for a period of not less than 15 years in respect of the
robbery. However, if I am satisfied that substantial
and compelling
circumstances exist to justify the imposition of a lesser sentence of
imprisonment then I may do so. Accordingly
I must examine whether or
not there are substantial or compelling circumstances.
The first relevant circumstances is the age of each of the accused.
This offence was committed on 18 May 2009. On that date
accused 1
was just 20 years old. Accused 2 was 25 years old. Accused 3
was nearly 22 years old. They are all
young men. They are not as
young as the age of 18 and under as identified in Act 105 of 1997 but
they are certainly within the
age group which our courts have
traditionally taken into account youth as a mitigating factor.
Younger persons are treated more
leniently when it comes to
sentencing because it is thought that younger people are less mature,
more susceptible to influence
from others and are perhaps more
irresponsible generally.
However, youthfulness is not an automatic factor leading to a
determination of substantial and compelling circumstances. In the
present case it is interesting that accused 1 who is the
youngest of all three must have been the ringleader. He must have
told the other two that he was able to gain access to this property.
He must have told the other two accused of the existence
of the safe.
He must have told the other two that on that particular Monday 18
May there would be no one at the house, certainly
not his brother and
the other builders. In other words the youngest of the group was the
one exercising the most influence.
Youthfulness has not been held to be a mitigating factor when it is
assessed against other factors such as the gravity of the
offence,
and the gravity of the offence outweighs youthfulness. In this
regard a refer to a judgment of this division
State v Obisi
2005
(2) SACR 350
(WLD). What was said there by Judge Makhanya was:
"The nature of the crime, the brazenness, the callousness and
the brutality of the appellant's conduct show that he attaches
no
value to other people's lives or physical integrity or to their
dignity."
In that case the court confirmed life sentence of imprisonment
where:
"The deceased was doing what ordinary people do everyday,
walking home from work when the deceased, who posed no threat to
the
appellant, was suddenly mowed down by the appellant."
Secondly, the next factor to which I must give consideration is the
period of time that these three accused have spent in custody.
They
have been incarcerated in prison for a period of nearly one year and
11 months, namely since October 2009. During this
time they have
not been found guilty of these offences and yet they have been
suffering as convicted prisoners. This consideration
of course
applies less to accused 1 who has been convicted, apparently of theft
from his father, and who has been serving a two
year sentence of
imprisonment. But certainly for some of the time he has been an
awaiting trial prisoner, and for all of the time
have accused 2
and 3.
There can be no doubt that to be an incarcerated person is a great
hardship. This is particularly the case where one is not a
serving
prisoner but awaiting trial. One does not receive the benefit of
remission or parol or amnesties. One does not receive
the benefit of
the various courses offered by the Department of Correctional
Services. One simply sits in limbo and waits. To
the extent that
the Department of Correctional Services is able to offer any
employment to while away the day, even that is not
offered to an
awaiting trial prisoner.
There are indeed judgments, particular a full bench judgment of this
division,
State v Brophy
which have attempted to do an
arithmetical calculation of the equivalent of an awaiting trial
period of time to a convicted period
of time. The difficulty with
such arithmetical equivalents is that one does not know all the
factors particular to each awaiting
trial period of time. I am
therefore reluctant to say that accused 2 and 3 have spent
therefore approximately two years'
as awaiting trial prisoners equal
to a four year period of sentenced imprisonment. What I certainly am
prepared to say is that
they have suffered great hardship and this is
a factor to be taken into account.
The third factor concerns the difficult circumstances under which
these accused have grown up. They appear to have lived partially
in
the rural areas, partially in the urban areas. Some have parents in
employment, others not. Not one of them has completed
high school,
they have given various reasons for this. But I must take into
account at the end of the day it is a great financial
sacrifice for
parents and grandparents to pay for children to go to school and
their family circumstances will have had an impact.
It can also be
seen that none of the accused have any training for any particular
skill. It is therefore not surprising that
without qualifications,
without skills and training none of them have proper jobs. They have
done their best with piece jobs here
and there but they have never
really earned enough to support themselves and their family. In such
circumstances it is not difficult
to appreciate that there is great
temptation to young people to make quick and easy money by theft or
robbery.
However, in response to that understanding and appreciation there
are two important comments. Firstly these three young men did
not
only commit theft and robbery they committed murder. Their robbery
could not have been successful without the murder. The
two went hand
in hand. They were not stealing or robbing from a stranger, they
were robbing from someone, Mrs Patricia Kauitsane
who knew
accused 1. Therefore they had to kill her, they were prepared
to kill her, and she was murdered. The second comment
is that the
rest of society does not turn to robbery and murder. There are many
people in this society who have also suffered
hardship and
depravation and unfairness. They have left school. They have no
training. They often have no jobs but they do not
prey like monsters
on ladies like Patricia Kauitsane who was just going to work.
The fourth factor which I take into account is the fact that, as I
have pointed out, this murder was premeditated. There is no
point in
a robbery where you say to the person you are going to rob here I am,
it is Thokozani, and then do the robbery and walk
away, because the
first thing that Mrs Patricia Kauitsane would have done was
phone her boss, phone Mr Coetzee and he would
have phoned the police
and they would have been looking for Thokozani. There was no
disguise of Thokozani because the only way
the three of you could get
into that house was by telling Mrs Patricia Kauitsane who you
were. As I therefore stated yesterday
in my judgment, you could not
hope to achieve this robbery without doing the murder. This murder
was planned and premeditated.
You were being, as was said in that
judgment to which I referred yesterday,
State v Musingadi
a
"household traitor". Accused 1 was betraying the
trust of Mrs Patricia Kauitsane and the way in which you
killed
her was vicious and brutal. Injuries on her face and body and her
head smashed in so that there could be no doubt that
she was dead,
and the way in which you killed her was using a golf club. Using a
big swing to hit her on the head.
The final factor to be taken into account is that there probably
were different roles for each of the accused. Accused 1
had to
be the leader. He had the information about the safe, the address,
and the way to gain entrance. He was the person who
introduced
himself to Patricia Kauitsane, and as a result all three of them
were let into the property. However, there is
nothing to suggest
that accused 2 and 3 were reluctant or had to be persuaded.
They obviously wanted to participate in the
robbery and therefore
they made common purpose and agreement before the robbery took place,
with the murder.
These then are the different factors which I have taken into account
in deciding whether or not there are substantial and compelling
circumstances.
In
State v Malgas
2001 (1) SACR 469
(SCA) the judgment to
which our courts always refer concerning minimum sentences and
substantial and compelling circumstances had
much to say about the
approach to be taken by the court. Firstly the legislature, in
enacting Act 105 of 1997 aimed at ensuring
a "severe,
standardised and consistent response from the courts". Secondly
the emphasis in sentencing has shifted "to
the objective gravity
of the type of crime". Thirdly substantial and compelling
circumstances must be "truly convincing
reasons". There
must not be marginal differences in personal circumstances or degrees
of involvement. At the end of the
day "the ultimate cumulative
impact of the circumstances must be such as to justify a departure".
Accordingly what I, as a sentencing court am obliged to do is to
take into account all the relevant factors and look at their
combined
impact to see whether they are convincing enough to justify a
deviation from the prescribed minimum sentence. In favour
of the
accused is their youth and the fact that at least two of them have
been in custody for a lengthy period. Against the accused
is this
extremely brutal and vicious murder.
I am of the view that there are not substantial and compelling
circumstances to justify a lesser sentence of imprisonment.
Accordingly
I am obliged, in terms of the legislation to impose upon
each of you a sentence of imprisonment for the rest of your life in
respect
of the murder of Mrs Patricia Kauitsane and a
sentence of 15 years' imprisonment in respect of the robbery.
I should point out that I can see nothing unfair in this.
Mrs Patricia Kauitsane is dead forever. She is not getting
up in the morning and choosing the clothes she will wear. She is not
going home to her family. She is not spending time with
children or
grandchildren. She will never go to church if she wants to, and all
this is because you decided to kill her and did
kill her. Our
society, because of our constitution does not require that your life
be exchanged for her life. In some countries
where the death penalty
is imposed you would be sentenced to hang by the neck until you are
dead,. But that is not constitutional
in South Africa, but it is
certainly not unfair or unjust that having taken the life of Mrs
Patricia Kauitsane you should
spend the rest of your lives in
punishment, in reflecting upon her death and hopefully this kind of
sentence will cause other young
men who think of killing people, not
to do so.
The question arises the extent to which, if at all, the sentence in
respect of the murder and the sentence in respect of the robbery
should run concurrently. There is much to suggest that they should
run concurrently. After all the robbery required the murder.
The
murder took place in order to achieve the robbery. The one depended
on the other. However, on the other hand having planned
the robbery
and murder and committed the robbery and murder the accused continued
with their unlawful behaviour. They left the
house removing certain
items. They travelled to a place where they had the safe broken
open. They removed the contents of the
safe and sold some of them.
They divided up the money and the firearm and the watch were kept.
Accused 1 and 2 were found
on the bed where the firearm was
hidden in the mattress.
Not all the activities of the robbery and the murder took place at
the same time or in the course of the same purpose. Accordingly
I am
not ordering that all the sentences are to run concurrently.
You might wonder why I even consider having a sentence separately
from or in addition to a life sentence of imprisonment. That
is
because the Correctional Services Act indicates that a life sentence
of imprisonment does not necessarily mean that a person
spends their
entire life in prison. You may be considered for release after you
have served 25 years. Since there is the possibility
therefore of a
release before you die therefore the sentence in respect of the
robbery and the firearm must itself be calculated.
The unlawful possession of the firearm and ammunition has happened
because the firearm and the ammunition were the spoils or the
rewards
of the robbery. Your convictions in respect of the firearm and
ammunition should therefore run concurrently with the robbery
conviction. But I have found that two months later accused 1
and 2 were in possession of the firearm, therefore not all the
sentences imposed in respect of the firearm and ammunition will run
concurrently.
Accordingly in respect of count 1 I intend to impose a sentence of
life imprisonment on each of you. In respect of count 2, the
robbery, I intend to impose a sentence of 15 years' imprisonment on
each of you. Ten years of that sentence will run concurrently
with
the sentence imposed in respect of count 1. In respect of the
unlawful possession of the firearm, count 3, I shall impose
a
sentence of ten years' imprisonment. In respect of count 4, the
unlawful possession of ammunition I shall impose a sentence
of two
years' imprisonment. The sentence in respect of count 3 and 4 will
run concurrently. In respect of accused 1 and
2 seven years of
counts 3 and 4, seven out of those ten years will run concurrently
with the conviction on count 2, the robbery.
In respect of accused 3
all the sentence, namely the ten years on counts 3 and 4 will run
concurrently with the sentence
imposed in respect of count 2.
Accordingly accused 1 Mr Mahlangu, you are sentenced to serve a
term of imprisonment for life
for the murder of
Mrs Patricia Kauitsane plus an effective sentence of five
years' imprisonment in respect of the robbery
and plus an effective
sentence of three years' imprisonment in respect of the unlawful
possession of the firearm and ammunition.
This results in an
effective sentence of life imprisonment plus eight years. Accused 2
Mr Seluma, you are sentenced to serve
a term of life imprisonment for
the murder of Mrs Patricia Kauitsane plus an effective term
of five years' imprisonment
in respect of count 2, the robbery plus
an effective term of three years' imprisonment in respect of the
unlawful possession of
the firearm and the ammunition, resulting in
an effective sentence of life plus eight years. Accused 3 Mr
Sello, you are
sentenced to serve an effective term of life
imprisonment for the murder of Mrs Patricia Kauitsane plus
an effective
term of five years' imprisonment in respect of the
robbery and all the term of imprisonment which I have imposed in
respect of
counts 3 and 4, the unlawful possession of firearm and
ammunition will run concurrently. This is an effective sentence of
life
plus five years' imprisonment.