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[2011] ZAGPJHC 218
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Khoza v S (03/27289) [2011] ZAGPJHC 218 (21 November 2011)
REPUBLIC
OF SOUTH AFRICA
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
Case No. A 120/2011
Date:21/11/2011
In the matter between:
TONY
KHOZA
.....................................................................................................
Appellant
versus
THE
STATE
.....................................................................................................
Respondent
JUDGMENT
MEYER,
J
[1] The regional court sitting
in Boksburg convicted the appellant of unlawfully possessing a
semi-automatic firearm (count 1) and
of attempted murder (count 2),
and he was sentenced to fifteen years’ imprisonment on count 1
and to seven years’ imprisonment
on count 2. He now appeals
against the sentences imposed upon him, having been granted leave by
two judges of this division on
petition.
[2] The provisions of s
51(2)(a) read with Part II of Schedule 2 to the Criminal Law
Amendment Act 105 of 1997 (the Act) obliged
the court below to impose
a sentence of 15 years’ imprisonment upon the appellant
pursuant to his conviction of unlawfully
possessing a semi-automatic
firearm, unless the court below found that substantial and compelling
circumstances existed that justified
the imposition of a lesser
sentence than the one prescribed. The charge sheet in this instance
makes no reference to the provisions
of the Act insofar as the charge
of attempted murder is concerned and it also does not appear from the
record that the appellant
or his legal representative was aware of
its provisions that are applicable to attempted murder. The court
below accordingly,
in my view correctly, did not apply the provisions
of the Act in sentencing the appellant pursuant to his conviction of
attempted
murder. See:
S
v Legoa
2003
(1) SACR 13
(SCA), paras 18 – 21.
[3] A review of the
applicable case law is not necessary. By now it is trite that the
starting point for a court in considering
an appropriate sentence for
an accused person who has been convicted of an offence for which a
minimum sentence is prescribed in
terms of the Act, such as the
appellant’s conviction of unlawfully possessing a
semi-automatic firearm, is the prescribed
minimum sentence. In
considering whether or not substantial and compelling circumstances
exist, which would justify the imposition
of a lesser sentence than
the prescribed one, a court is enjoined to apply the traditional
objectives of punishment - prevention,
retribution, deterrence, and
rehabilitation - and to weigh the personal circumstances of an
accused person against the crime committed
by him or her and the
legitimate interests of society.
[4] The appellant was 25 years
old at the time of sentencing. He was single and employed as a
taxi-driver by his stepfather. He
was a first offender. A reading
of the record of the proceedings in the court below shows that these
are the only circumstances
and factors that favoured the appellant.
In my view the court below correctly did not take the time that he
had spent in custody
pending the finalisation of his criminal trial
into account in sentencing him since his incarceration was of his own
making. His
initial release on bail was withdrawn, because he had
failed to appear in court.
[5] The offences of which the
appellant have been convicted are serious. Armed with a
semi-automatic firearm with an obliterated
serial number, the
appellant and his companions made their way into the sanctity of a
private residential estate. The appellant
did not hesitate to fire
three shots at or in the direction of a security guard. The firearm
was in the ready position for immediate
shooting when it was seized
from his possession.
[6] Our country suffers an
unacceptable and distressing incidence of violence and the commission
of violent crimes, such as the
one of attempted murder of which the
appellant was convicted.
[7] In
S
v Makwanyane and Another
[1995] ZACC 3
;
1995 (2) SACR 1
(CC), para 117, Chaskalson P said the following about
the level of violent crime that existed in our country at the time of
that
judgment in 1995:
‘
The level of
violent crime in our country has reached alarming proportions. It
poses a threat to the transition of democracy, and
the creation of
development opportunities for all, which are primary goals of the
Constitution. The high level of violent crime
is a matter of common
knowledge and is amply borne out by the statistics provided by the
Commissioner Police in his amicus brief.
The power of the State to
impose sanctions on those who break the law cannot be doubted. It is
of fundamental importance to the
future of the country that respect
for the law should be restored, and that dangerous criminals should
be apprehended and dealt
with firmly.’
[8] Fifteen years later,
Ponnan JA described the present day crime situation as follows in
S
v Matyityi
2011 (1) SACR 40
(SCA), para 23:
‘
Despite certain
limited successes there has been no real let-up in the crime pandemic
that engulfs our country. The situation continues
to be alarming.
It follows that, to borrow the words from Malgas, it still is ‘no
longer business as usual’.’
[9] In
S
v Thembalethu
2009 (1) SACR 50
(SCA), para [11], Kgomo AJA said the following about
the legislature’s intervention in prescribing the minimum
sentence of
fifteen years’ imprisonment for the unlawful
possession of a semi-automatic firearm:
‘
It may well be
so that one of the consequences of the
Criminal Law Amendment Act is
that the unlawful possession of, for example, a pump-action shotgun
may entail a more lenient sentence than the unlawful possession
of a
semi-automatic firearm this does not result in an absurdity. The
singling-out of semi-automatic firearms may well have been
the result
of the frequency with which these firearms have been used in violent
crimes.’
[10] I am in all the
circumstances satisfied that the court below was justified in its
conclusion that no substantial and compelling
circumstances
justifying the imposition of a lesser sentence than the prescribed
one for the appellant’s conviction of unlawfully
possessing a
firearm were present. A departure from the prescribed minimum
sentence was, in my view, not justified in this case.
I am also
satisfied that the sentence of 7 years’ imprisonment for the
appellant’s conviction of attempted murder
is an appropriate
one in all the circumstances.
[11] I am, however, of the
view that there is one respect in which the court below misdirected
itself. Insufficient weight was
given to the cumulative effect of
the sentences of 15 years’ and of 7 years’ imprisonment.
An effective sentence of
22 years’ imprisonment is not
proportionate to the appellant’s personal circumstances, the
crimes that he has committed,
and the legitimate interests of
society. The court below should in all the circumstances have
ordered that 4 years of the 7-year
sentence imposed in respect of the
count of attempted murder should run concurrently with the sentence
of 15 years’ imprisonment
on the count of unlawfully possessing
a semi-automatic firearm, thereby tempering the effective term of
imprisonment, which would
otherwise have been too harsh a sentence.
[12] I am accordingly of the
view that the appeal should partially succeed, and that the following
order should be made:
1. The appeal against the
sentence imposed upon the appellant pursuant to his conviction of
unlawfully possessing a semi-automatic
fire-arm is dismissed.
2. The appeal against the
sentence imposed upon the appellant pursuant to his conviction of
attempted murder is dismissed.
3. It is ordered that 4 years
of the sentence imposed upon the appellant pursuant to his conviction
of attempted murder is to run
concurrently with the sentence of 15
years’ imposed upon him pursuant to his conviction of
unlawfully possessing a semi-automatic
fire-arm.
4. The appellant is
accordingly sentenced to an effective term of imprisonment for
eighteen years pursuant to his conviction of
unlawfully possessing a
semi-automatic fire-arm and pursuant to his conviction of attempted
murder.
P.A.
MEYER
JUDGE
OF THE HIGH COURT
MAKHANYA, J
I agree with my brother Meyer
J. It is so ordered.
G.M.
MAKHANYA
JUDGE
OF THE HIGH COURT
21
November 2011