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[2014] ZAGPJHC 216
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Mqabhi v S (A424/2012) [2014] ZAGPJHC 216; 2015 (1) SACR 508 (GJ) (17 September 2014)
HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: A424/2012
DATE:
17 SEPTEMBER 2014
In the matter
between:
MQABHI, THULANI
SYDNEY
...............................
Appellant
V
THE
STATE
.........................................................
Respondent
JUDGMENT
SPILG, J:
INTRODUCTION
1. The appellant
faced two charges. The first was for robbery with aggravating
circumstances, read with the minimum sentence provisions
of section
51 and Part II of Schedule 2 of the Criminal Law Amendment Act 105
of 1997 (‘CLAA‘). He was found guilty
and, as a first
offender, was sentenced to the minimum prescribed period of 15 years
imprisonment commencing from the date sentence
was delivered.
The appellant was
acquitted on the second charge of attempted murder.
2. The court a quo
granted leave to appeal in respect of sentence only.
THE ISSUES
3. Ms Cosyn on
behalf of the appellant argued that the learned regional court
magistrate misdirected himself in that he should have
found
substantial and compelling circumstances present under section 51(3)
(a) of the CLAA warranting the imposition of a sentence
less than
the prescribed minimum. It was also submitted that the sentence
induced a sense of shock and was inappropriate.
4. It is evident
from the record that the magistrate had considered the nature of the
crime, the personal circumstances of the appellant
and the interests
of society, including the impact of the crime on the victim.
5. The court also
referred to the fact that the appellant had been held in custody for
a period of two years prior to sentencing,
but on an overall
assessment concluded that there were no substantial and compelling
circumstances justifying a custodial less
than the fifteen year
minimum.
6. Counsel were
requested to deal with how courts treat a lengthy period in custody
prior to sentencing where the minimum sentencing
provisions of
section 51 of the CLAA apply. The period in custody prior to
sentencing will also be referred to as ‘pre-sentence
detention’
(see S v Radebe and another
2013 (2) SACR 165
(SCA) at [13]).
In the heads of
argument subsequently filed, Ms Cosyn relied on a number of cases,
including S v Vilakazi 2009(1) SACR 552(SCA)
and S v Kruger 2012(1)
SACR 369 (SCA), to support the argument that the two year period in
custody should be deducted from the
15 years imposed and antedated to
29 July 2011 being the date when the magistrate handed down the
sentence. It was submitted that
a lengthy period in custody
constitutes a substantial mitigating factor warranting a departure
from the prescribed minimum sentence.
Mr Mareume for the
State also relied on Vilakazi and Kruger. He submitted that these
cases supported the proposition that it was
only fair to consider the
period in custody particularly if it was lengthy when determining an
appropriate sentence. The sting
in the tail was that the State
relied on the fact that the sentencing court had expressly mentioned
the lengthy period the appellant
had been in custody awaiting trial
and submitted that the court had therefore considered the matter and
had properly exercised
its discretion.
The State also
relied on section 51(4) of the CLAA which provided that a term of
imprisonment under the minimum sentencing provisions
commences from
the date of sentencing and no earlier . Although section 51(4) was
repealed the provisions of section 39(1) of the
Correctional Services
Act 111 of 1998 (‘CSA’) are to similar effect (see
below).
7. In order to
consider the issue it is necessary to first set out the main findings
of the trial court by reference to the triad
of factors relevant to
sentencing and to weigh whether substantial and compelling
circumstances were present. In the absence
of such factors, the
appellant as a first offender would have been correctly sentenced to
15 years imprisonment.
NATURE OF THE
OFFENCE
8. The trial court
found that in the early hours of Thursday 26 November 2009, at
shortly after 05h00, the appellant in the company
of another man
entered a taxi which was driven by the complainant. They took their
seats behind the complainant ostensibly as fare
paying passengers.
The complainant was asked to wait for another person who was joining
them. The person arrived and as he sat
down in the front passenger
seat, he pulled up the vehicle’s handbrake. The appellant drew
a firearm and the driver was then
pulled from behind as the
assailants attempted to drag him to the back of the vehicle. He tried
to resist and the appellant fired
a shot which, although not aimed at
the driver, was intended to and did compel him to submit. This
accounts for the appellant being
acquitted on the charge of attempted
murder; the court also reasoning that the firing of the shot was
already taken into account
as part of the aggravating circumstances
accompanying the robbery.
9. The complainant
managed to open the back door of the vehicle and fled. The appellant
then jumped into the driver’s seat,
took control of the vehicle
and drove off. He was apprehended by members of the taxi association
who spotted the vehicle some time
later near a filling station and
gave chase. By this stage the hijackers had already managed to strip
some of the parts from the
vehicle, including the sound system. The
damage caused to the vehicle was assessed at approximately R18 000.
PERSONAL
CIRCUMSTANCES OF THE APPELLANT AND THE INTERESTS OF SOCIETY
10. The appellant
was 35 years old at the time of sentencing. He had a 3 year old son,
was in a steady relationship and also supported
his parents. The
appellant had been in permanent employment until retrenched after
which he managed to obtain work as a taxi driver
until the arrest.
11. The trial court
referred to the epidemic of violence and the seriousness of crimes
which involve firearms. The court also considered
the impact of the
crime on the complainant, how he was traumatised and the financial
loss occasioned as a consequence of the hijackers
stripping items
from his vehicle. Finally the magistrate took into account that the
crime was carefully planned. One can also add
that the appellant did
not act alone; the attack being executed by a gang which included two
others.
12. The magistrate
said the following in respect of the pre-sentence period in custody;
“The only
factor I could find in favour of the accused is that he has been in
custody for a very long time awaiting finalisation
of the matter. He
was arrested in the year 2009, it is now 2011. He is a first
offender, however this is an offence that is very
serious in nature,
a firearm has been used, the offence was carefully planned and
carefully executed.
In my judgment on an
overall assessment of … the accused I have reached the
conclusion after much cognizing (possibly a typing
error for
‘agonising’) that there is a need for the protection of
society in that a sentence that is prescribed not
be destructive. I
therefore cannot find any substantial and compelling circumstances
justifying the imposition of a lesser sentence
…”
13. In granting
leave to appeal against sentence only, the court said;
“In respect of
sentence. The court had considered a number of factors, particularly
the accused’s personal circumstances
… I could not even
be placed with any compelling and substantial circumstances. I had
also taken into account that the applicant
had been in custody for
almost two years prior to the finalisation of the matter.
However sentence is
a matter of discretion.”
14. As stated
earlier, the court considered the two year period during which the
appellant was in custody prior to sentencing and
concluded that
overall there were no substantial and compelling circumstances.
THE ISSUES
15. If the period in
custody is properly a factor to be considered under section 51(3)
(a), then the question arises whether the
magistrate was obliged to
consider the effect it would have on the actual period that the
appellant may be subjected to loss of
freedom as a consequence of his
crime (ie; seventeen years) and on the period he must wait before
being eligible for parole.
16. In the present
case the magistrate concluded that the lengthy period in custody
prior to sentencing did not constitute a substantial
and compelling
circumstance either when the mitigating and aggravating factors were
viewed in their totality or in isolation (compare
the judgment on
sentence with that for leave to appeal). Accordingly, at face value,
the period in custody was said to have been
considered but was not
sufficient to bring the appellant within the purview of section
51(3)(a).
CASE LAW
17. The SCA has
dealt with the pre-sentence period in custody and the issues it
raises in four relatively recent decisions; S v
Vilakazi 2009(1) SACR
552 (SCA), S v Kruger
2012 (1) SACR 369(SCA)
, S v Dlamini
2012 (2)
SACR 1
(SCA) and S v S v Radebe and another
2013 (2) SACR 165
(SCA).
.
18. In Vilakazi the
SCA said at para [60]:
“There is one
further consideration that must be brought to account. The appellant
was arrested on the day the offence was
committed and has been
incarcerated ever since. At the time he was sentenced he had
accordingly been imprisoned for just over two
years. While good
reason might exist for denying bail to a person who is charged with a
serious crime it seems to me that if he
or she is not promptly
brought to trial it would be most unjust if the period of
imprisonment while awaiting trial is not then
brought to account
in any custodial sentence that is imposed. In the circumstances I
intend ordering that the sentence - which
for purposes of considering
parole is a sentence of 15 years' imprisonment commencing on the date
that the appellant was sentenced
- is to expire two years earlier
than would ordinarily have been the case.
The court made the
following order;
“'The accused
is sentenced to fifteen years' imprisonment from which two years are
to be deducted when calculating the date
upon which the sentence is
to expire.'
19. Vilakazi
concerned the rape of an under-aged girl. The court a quo had imposed
a sentence of life imprisonment. On appeal the
SCA found substantial
and compelling circumstances present. These circumstances were not
confined to the offender but also had
regard to the scheme of the
minimum sentence legislation with its lack of gradation in
sentencing, and its disproportionality and
incongruity when
considered against sentences imposed for significantly more serious
offences.
The SCA’s
reference to ante-dating the sentence should not be misconstrued as
an application of a power to determine that
sentencing can commence
from a date prior to its pronouncement. The SCA did no more than
apply the provisions of section 282 of
the Criminal Procedure Act 51
of 1977 (the ‘CPA’) which permit an appeal court on
altering the original sentence imposed
to direct that it will run
from the date on which the trial court handed down sentence.
20. Vilakazi is also
significant because it reaffirmed the considerations which underlie
the need to bring to account, for sentencing
purposes, a lengthy
period of pre-sentence detention. In that case the SCA took into
account the full 2 years of imprisonment as
an awaiting trial
prisoner by deducting this period from the 15 years imprisonment it
considered otherwise appropriate. It was
done on the ground that it
would be “most unjust if the period of imprisonment while
awaiting trial is not then brought to
account...”(at [60]).
This echoes the
position adopted some two decades earlier in S v Mgedezi and others
1989(1) SA 687 (A) per Botha JA at 716J-717A
where the court, after
overturning a death sentence, was not prepared to countenance a
situation which precluded it, due to a legislative
oversight, from
taking into account the time the appellant had already spent in
detention.
21. The form of the
order in Vilakazi might have suggested that once substantial and
compelling reasons were found, the appropriate
sentence to be imposed
was to be further reduced in a separate exercise by deducting the
actual time spent in custody. Nonetheless
the court had indicated
earlier at para [15] that;
'It is clear from
the terms in which the test was framed in Malgas and endorsed in
Dodo that it is incumbent upon a court in
every case, before it
imposes a prescribed sentence, to assess, upon a consideration of all
the circumstances of the particular
case, whether the prescribed
sentence is indeed proportionate to the particular offence.'
In the most recent
case of Radebe the SCA confirmed that this passage demonstrated that
mitigating or aggravating factors should
not be taken individually or
in isolation when considering substantial and compelling
circumstances.
22. The next case
was S v Kruger
2012 (1) SACR 369(SCA).
The appellant had been
convicted by a magistrates’ court on seven separate counts
ranging from one for robbery to others
of housebreaking and theft
committed over a period of time. The appellant had been in custody
awaiting trial for over three and
a half years before being sentenced
by the trial court.
It is evident that
the SCA was not concerned with the application of section 51(3)(a) as
the sentencing court had already found
the presence of substantial
and compelling circumstances. The issue was limited to a
consideration of the cumulative effect of
the sentences imposed,
totaling 26 years imprisonment (at para [11]).
23. The SCA
considered the appellant’s personal circumstances, both
aggravating and mitigating. After finding that the cumulative
effect
of the sentences induced a sense of shock the court added;
“The other
consideration is the period spent in prison by the appellant while
awaiting trial. It is only fair to consider
that period, especially
where it is a lengthy period. In the present case the appellant was
incarcerated for a period of three
years and eight months before he
was finally sentenced on 24 February 2000. One way of factoring this
period into a sentence is
by antedating the sentence to the date on
which he was sentenced or an earlier date by simply deducting the
three years and eight
months from the imposed sentence. (See S v
Vilakazi
2009 (1) SACR 552
(SCA) ([2008]
4 All SA 396)
para 60.)
Punishing a convicted person should not be likened to taking revenge.
It must have all the elements and purposes of punishment,
prevention,
retribution, individual and general deterrence, and rehabilitation.”
(para [11])
The court then
ordered that all sentences be antedated to when the trial court
originally imposed them and then deducted three years
from the total
effective period of imprisonment. The reference to “or an
earlier date” would however be inconsistent
with the
interpretation given to section 32(1) of the old Prisons Act 8 of
1959, and now effectively re-enacted by section 39(1)
of the CSA, in
S v Hawthorne en ‘n ander 1980(1) SA 521 (A) at 525E (see
below).
24. The third SCA
case is S v Dlamini
2012 (2) SACR 1
(SCA). Although the five court
appeal bench was divided on whether there had been an impermissible
splitting of charges, the majority
finding that there had not been,
the court unanimously upheld the appeal against sentence (the
majority holding that the sentences
run concurrently). The reasons
for altering the sentence to a period of 17 years imprisonment are
contained in the decision of
Catchalia JA at paras [28] - [42] (which
the majority adopted per Majiedt JA at para [43]).
25. The significance
of Dlamini for present purposes appears at paras [41] and [42] of
Catchalia JA’s judgment;
[41] This brings me
to the 10 months Mr Dlamini spent in custody before he was sentenced,
which, as I have mentioned, neither the
magistrate not the high court
took into account in deciding the appropriate sentence. It is trite
that the period an accused
is held in custody while awaiting
completion of his trial should be taken into account when deciding on
the appropriate sentence.
This is done by making the period of
imprisonment actually imposed shorter than it would otherwise have
been. However, the courts
have not spoken clearly on how to calculate
this period. One approach has been to do an inexact subtraction;
another is to deduct
the period actually spent; yet another is to
treat the time spent in custody, at the very least, as equivalent to
the time served
without remission; and a fourth, more adventurous
method is to treat the period as equivalent to about twice the
length, because
of the harsher conditions that awaiting-trial
prisoners are subjected to in comparison with the conditions of
sentenced prisoners.
[42] As we have not
had the benefit of argument on what the correct approach should be, I
refrain from saying anything further on
this question —
particularly in the case of prison conditions — as this would
depend on the facts. Suffice to say that
the courts have spoken
clearly that an appellant is entitled to the benefit of the period of
his incarceration. In Mr Dlamini’s
case this was 10 months,
which equates roughly to a year in custody. I would deduct this
period from the overall sentence of 18
years' imprisonment, which it
otherwise would have been, and impose an effective sentence of 17
years' imprisonment.
26. There are with
respect three key considerations mentioned in Dlamini and which
follow Vilakazi and Kruger concerning the pre-sentence
period of
detention, namely;
a. an offender is
entitled to have this period taken into account when deciding on an
appropriate sentence (para [41] and repeated
in para [42]);
b. this is done “by
making the period of imprisonment actually imposed shorter than it
would otherwise have been.” (at
para [41]);
c. The issue left
open was how to factor this in.
27. Dlamini referred
to three possible ways of taking into account the period of
pre-sentence incarceration. The first was by way
of an inexact
subtraction, the other by treating this period as at least equivalent
to the time served without remission and finally
to factor in any
additional proven or perceived hardships and reduced benefits endured
by a non-sentenced detainee when compared
to that of a sentenced
prisoner (ibid at para[41]).
28. The second and
third methods of taking the pre-sentence period of detention into
account referred to in Dlamini have been a
vexed issue in matters
coming before the High Courts in Gauteng.
Prior to Vilakazi
going on further appeal to the SCA, Goldstein J in the High Court (S
v Vilakazi 2000(1) SACR 140(W) at 148a-e)
was not prepared to accept
that the earlier decision of S v Stephen and another 1994(2) SACR 163
(W) reflected this court’s
practice. In Stephen Schutz J (at
the time) at 168f adopted a Quebec Court of Appeal decision which
considered that imprisonment
awaiting trial was equivalent to a
sentence of twice that length.
29. In the
subsequent case of S v Brophy and another 2007(2) SACR 56 (W) the
full bench preferred Schutz J’s approach and
Schwartzman J said
at paras [18] and [19];
“[18] There is
no evidence before this Court detailing the living conditions of
awaiting-trial prisoners, who are presumed
to be innocent and who are
first offenders. What does not require evidence is that time spent in
prison awaiting trial is, at the
very least, equivalent to time
served without remission. In addition, such prisoners do not get the
benefit of any presidential
pardon. What cannot be disputed is that
the lot of the awaiting-trial prisoner is harsher than that of a
sentenced prisoner in
that he or she cannot participate in the
programmes that a prison may run. What he or she is condemned to is a
seemingly endless
routine of boredom in the course of which he or she
cannot earn any privileges for which serving prisoners can qualify by
reason
of good conduct. Judicial cognisance can also be taken of the
gross overcrowding in prisons housing awaiting-trial prisoners. On
a
prison visit I have seen such conditions. As appears from the annual
reports of Fagan J, the Inspecting Judge of Prisons, these
harsh
conditions have not been ameliorated.
[19] There is no
science from which it can be determined that such conditions are
equivalent to double or treble or less than double
time served.
Taking all conditions into account - and there are probably others
that may be found in some prisons - and notwithstanding
the
reservations expressed by Goldstein J, I am satisfied that the ratio
in the Stephen case ought to be followed.
30. The court in
Brophy applied Stephen and reduced the sentence it intended to impose
by deducting from it twice the length of
time the appellants had been
in custody prior to sentencing.
31. In my respectful
view the single court decision of Satchwell J in S v Mahlangu and
others
2012 (2) SACR 373
(GSJ) at 376c-d might best have expressed
the position in this Division:
“There are
indeed judgments, particular a full-bench judgment of this division,
S v Brophy and Another
2007 (2) SACR 56
(W), 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 peculiar to each awaiting-trial
period. I am
therefore reluctant to say that accused 2 and 3 have spent
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.”
32. The most recent
SCA case is S v Radebe and another
2013 (2) SACR 165
(SCA).
It did not approve
of the Stephen/ Brophy approach and held at paras [13] and [14] that
the pre-sentence period in detention is
only one factors that should
be taken into account “in determining whether the effective
period of imprisonment to be imposed
is justified: whether it is
proportionate to the crime committed”.
The SCA proceeded
(at para [14]):
“Such an
approach would take into account the conditions affecting the accused
in detention and the reason for a prolonged
period of detention. ….
(T)he test is not whether on its own that period of detention
constitutes a substantial or compelling
circumstance, but whether the
effective sentence proposed is proportionate to the crime or crimes
committed: whether the sentence
in all the circumstances, including
the period spent in detention prior to conviction and sentencing, is
a just one” .
33. In applying the
approach that the period of pre-sentence detention could not
independently constitute a substantial and compelling
circumstance
the SCA held at para [18] that the period of two and a quarter years
during which the appellants were in detention
prior to sentence had
to be taken into account, but it did not outweigh the aggravating
circumstances. Moreover the court found
that the appellants had
unnecessarily prolonged the trial by insisting on engaging private
defence which they could not afford
and by necessitating a
trial-within-a-trial. Accordingly they only had themselves to blame
for the lengthy delays.
34. The effect of
Radebe is to preclude a court from considering the period of
pre-sentence detention independently of all the other
mitigating and
aggravating circumstances. It becomes a part of the totality of
factors that must be weighed in order to determine
whether
substantial and compelling circumstances exist to reduce the sentence
from the prescribed minimum.
35. The approach in
Radebe appears to reflect a departure from the earlier cases of
Kruger and Dlamini. Although all the cases
confirm that a court is
obliged to take the period of pre-sentence detention into account,
the latter two cases appeared to consider
that the pre-sentence
detention period constituted a distinct ground for finding
substantial and compelling circumstances based
on the consideration
that it was “unjust” not to (this term was used in
Vilakazi at para [60]. See also S v Malgas
2001 (1) SACR 469
(SCA) at
para [25] )
However, none of the
earlier cases were confronted with the features presented in Radebe.
An illustration of
the application of the pre-Radebe approach is found in S v Bhengu
2011(1) SACR 224 (KZP) where the court, after
agreeing with the
magistrate’s finding that no substantial and compelling reasons
were present, held that the pre-sentence
period in custody was be
deducted when calculating the date on which the sentence would expire
(at para [38]).
36. The first unique
aspect which required consideration in Radebe was the extent to which
the appellant’s own dilatory actions
contributed to the lengthy
delay in finalising the case. This had not been raised in the
previous cases and Radebe considered it
a factor that required to be
brought into account, without indicating the weight it was to be
given in any particular case.
37. The second
significant feature is that Radebe dealt with the situation where the
appellants had been found guilty of three separate
robbery
convictions, all subject to the minimum sentence provisions, but
which the SCA had already decided to discount for sentencing
purposes by treating as one. It will be recalled that in Dlamini
there was no decision to reduce the minimum prescribed sentences
before engaging in the enquiry since the merits of the case turned
on whether there was indeed only one offence or not. Both Vilakazi
and Kruger were concerned either with a single offence that was
subject to the provisions of section 51 or where the trial court
had
already found the presence of substantial and compelling
circumstances.
Accordingly if the
pre-sentence incarceration period in Radebe was considered in
isolation, after already treating the three robberies
as one for the
purposes of sentencing, then the overall result might have been too
lenient.
38. In my respectful
view the following appears to be evident from the four SCA cases
mentioned;
a. pre-sentence
detention is a factor to be taken into account when considering the
presence or absence of substantial and compelling
circumstances for
the purposes of section 51 of the CLAA (Radebe, Dlamini et al);
b. such period of
detention is not to be isolated as a substantial and compelling
circumstance. It must be weighed as a mitigating
factor together with
all the other mitigating and aggravating factors in determining
whether the effective minimum period of imprisonment
to be imposed is
justified in the sense of it being proportionate to the crime
committed. If it is not then the want of proportionality
constitutes
the substantial and compelling circumstance required under section
51(3) (Radebe at para [14]);
c. the reason for
the prolonged period of pre-sentence detention is a factor. If the
offender was responsible for unnecessary delays
then that may
rebound to his detriment (Radebe) ;
d. there is no
mechanical formula or rule of thumb to determine the period by which
a sentence is to be reduced. The specific circumstances
of the
offender, which may include the conditions of his detention, are to
be assessed in each case when determining the extent
to which the
proposed sentence should be reduced. (Radebe at para [13]);
e. where only one
serious offence is committed, and assuming that the offender has not
been responsible for unduly delaying the
trial (Radebe at para [14]),
then a court may more readily reduce the sentence by the actual
period in detention prior to sentencing.
( Dlamini and Vilakazi);
39. The question
that appears to have been left open by Radebe is the weight to be
attached to the pre-sentence period in detention.
In this regard:
a. The high store
placed by Vilakazi on a lengthy period of pre-sentence detention
amounting to unfairness if not taken into account
remains a vital
consideration.
b. A further
consideration is the difference in conditions of detention between an
inmate detained in custody (‘remand detainee’
) and a
sentenced offender. This is clear from a comparison between Chapters
IV and V respectively of the Correctional Services
Act 111 of 1998
(‘CSA’).
Moreover parole can
only be considered after a particular portion of a sentence has been
served, calculated from the date of sentencing
and not before (see
sections 39 (1) read with 73(6) and (7) of the CSA).
c. There is also the
issue of inequality of treatment. This can be illustrated by
postulating the position of accomplices who are
brothers involved in
a robbery where aggravating circumstances are present and they both
are first offenders. The brothers present
the same mitigating and
aggravating factors which otherwise would not result in a court
finding grounds for reducing the minimum
sentence of fifteen years
under section 51(3) of the CLAA. Postulate further that one was able
to afford bail and the other not
which resulted in him spending three
years as a remand detainee while delays in proceeding with the trial
were attributed to the
other who was on bail. Based on the express
provisions of section 73(6)(a) the brother in detention would have
been imprisoned
for ten and a half years before being eligible for
parole whereas the other would only have to serve seven and a half
years.
40. In essence the
following legal principles, interests and values have a bearing on
the weight to be accorded to a lengthy period
of pre-sentence
incarceration and assuming that the offender was not deliberately
delaying the trial;
a. The store placed
on the right to freedom under section 12 (1) of the Constitution
which, although recognising detention awaiting
trial (under
subparagraph (1)(b)), may be read with section 35(3)(d) which accords
the right of every accused person to have the
trial “ begin and
conclude without unreasonable delay”;
b. The equality
provisions of section 9 of the Constitution, and in particular
sub-sections (1) and (2) which provide;
(1) Everyone is
equal before the law and has the right to equal protection and
benefit of the law.
(2) Equality
includes the full and equal enjoyment of all rights and freedoms. To
promote the achievement of equality, legislative
and other measures
designed to protect or advance persons, or categories of persons,
disadvantaged by unfair discrimination may
be taken.
Offenders who have
spent a substantial period of time in pre-sentence detention might be
discriminated against, and therefore treated
unequally, because they
would not only be deprived of their freedom for a much longer period
but would only be eligible for parole
at a much later stage. In this
regard it should be born in mind that their entire period of
incarceration was as a sole consequence
of the crime (albeit that it
was not proven at the time of the detention). The grant of bail may
also be influenced by other discriminatory
factors such as financial
and social status.
Moreover the
stricter requirements in granting bail under section 60(11) of the
CPA means that most accused charged with serious
crimes will be
detained from the time of their arrest until sentenced, although
there is nothing in section 51 to suggest that
this was considered
when introducing the minimum sentence provisions. The effect is that
while pre-trial incarceration is accepted,
no distinction is drawn
between the consequences of being deprived of freedom pre-or post-
sentence or conviction.
Furthermore there is
a significant distinction in the quality of a remand detainees’
incarceration. If the provisions of Chapter
IV are compared with
Chapter V of the CSA such a person is ineligible to participate in
the programs provided to sentenced offenders,
including assessment
and case management. Accordingly a lengthy period of pre-sentence
detention is a period languishing in captivity
with no credits being
accumulated and no effective direction.
41. The potential
for inequality of treatment unless justified under the limitation
provisions of section 36 of the Constitution
is therefore apparent.
In this regard cases
such as S v Hawthorne en ’n Ander
1980 (1) SA 521
(A) at
525B-D may no longer be good law because they did not characterise
the issue as one concerning the deprivation of freedom
but adopted a
technical approach to the distinction between implementing a sentence
prior to actual conviction .
42. Since each of
these considerations involves the possible limitation of a
constitutional right, the factors which discounted
against taking the
pre-sentence period of detention into account should be identified.
While a failure to do so may be cured if
the factors are readily
apparent from the record as a whole, in my view, and precisely
because constitutionally protected rights
may be affected, it
appears preferable to adopt a position similar to that applied in S v
Mathebula 2012(1) SACR 374 (SCA) at
paras [10] and [11]. There the
SCA indicated that if a sentencing court intends imposing a sentence
greater than the prescribed
minimum it should identify the
circumstances that led it to do so and explain why such circumstances
justify a departure from
the prescribed sentence.
43. In passing, a
number of cases expressed concern about courts intruding on the
domain of the executive if a judicial officer
has regard to the date
from which an offender may first be eligible for parole when
considering an appropriate sentence. Whatever
the position under
previous legislation, the CSA stipulates the earliest date of
eligibility for parole. See Chapter VII and sections
73(6) and (7) in
particular. Accordingly the date when the Correctional Supervision
and Parole Board may first consider exercising
its discretion is
statutorily defined.
44. There appears to
be no reason why a court cannot have regard to this when determining
an appropriate sentence if substantial
and compelling circumstances
are found. The period of the sentence and the considerations that
should be taken into account as
to when the offender may first be
eligible to secure his or her freedom are the exclusive province of
the judiciary. Moreover this
does not interfere with any
discretionary power, for there is none conferred since the date when
the offender may first be eligible
for parole is fixed by statute.
The exercise by the Board of its power to either grant or refuse
parole on that date remains undisturbed.
MISDIRECTION
45. It is evident
that the magistrate in the present case did not take into
consideration the legal rights, values or interests
that may be
affected if the appellant was to be incarcerated for an effective
period of 17 years or that he would only be eligible
for parole from
a time commencing when sentence was imposed and not from the time he
was actually detained in custody. Nor is it
evident from the judgment
on sentence or conviction, or even from the record as a whole, what
circumstances were sufficiently egregious
to justify ignoring the two
extra years of incarceration that the appellant would be subjected to
and that this same period would
be ignored when determining the
earliest date of eligibility for parole under the CSA. The failure to
appreciate why the courts
in cases such as Vilakazi and Dlamini
consider a lengthy period of pre-sentence detention to be relevant
when considering an appropriate
punishment is equally apparent.
46. In particular
there is no one or more aggravating feature mentioned by the
magistrate, or to be discerned from the record (see
above), which
outweighs the considerations that arise from the appellant being
incarcerated for two years until sentenced when
taken together with
the other mitigating factors.
47. Without first
considering these factors it was not possible for the trial court to
determine whether the two year pre-sentence
detention period is
outweighed by the aggravating factors. As indicated earlier I do not
wish to suggest that a failure to expressly
identify the factors that
bear upon the issue will not be saved if is apparent from the
judgment as a whole that they were appreciated.
In the present case
there was only one conviction subject to the minimum sentence
provisions.
However the effect
of weighing up both aggravating and mitigating factors, including a
significant period of pre-sentence detention,
and finding no
substantial and compelling circumstances, effectively means that
there are features which render the accused more
morally blameworthy.
In the context of imposing a harsher sentence than the prescribed
minimum Wallis J (at the time) in S v Mbatha
2009 (2) SACR 623
(KZP)
at para [20] said: “The factors that render the accused more
morally blameworthy must be clearly articulated”.
This passage
was cited with approval in Mathebula.
48. In my view it
was equally necessary, having regard to the constitutional rights
potentially affected, for the trial court to
have indicated the
motivation for requiring the appellant to be incarcerated for
effectively 17 years instead of the prescribed
15 year minimum if he
had been granted bail. It should not be left for an appeal court to
speculate where there is nothing otherwise
apparent from the record
to explain it (see Mathebula at para [10]).
49. The failure to
apply correct principles when considering the weight to be attached
to the period of the appellant’s pre-sentence
detention when
taken together with the other mitigating and aggravating factors
constitutes a material misdirection vitiating the
exercise of the
sentencing court’s discretion. In such a case the appeal court
is required to reconsider sentencing afresh.
See generally S v Malgas
2001(1) SACR 469 (SCA) at para 12. I proceed to do so.
50. In the present
case the trial court rightly regarded the discharge of the firearm in
the confines of a vehicle in which the
complainant was seated as an
aggravating factor. Although not stated in the judgment, no doubt the
fact that the appellant was
part of a gang and had lured the
complainant into opening the vehicle’s doors under false
pretense were also aggravating
factors. Against this the court itself
did not perceive the discharge of the firearm as life threatening. On
the contrary the court
held that the shot was deliberately fired away
from the accused to render him compliant. What remained was the fear
that the appellant
or his accomplices would not hesitate to use the
firearm to maim or kill. I do not believe that these features are so
removed from
the fear engendered when a gang invades a family home
and threatens to use a firearm as the family remains captive for a
lengthy
period and under constant fear while their home is being
ransacked.
51. In my view the
aggravating features are outweighed by the totality of the other
mitigating factors that were taken into account
by the magistrate and
mentioned earlier as well as the deprivation of liberty for
effectively two years beyond the maximum that
would have prevailed if
the appellant had been afforded bail considered together with the
impact of not being eligible for parole
sooner if the period of
effective imprisonment is not reduced. In the circumstances of this
case these additional factors also
impinge on the appellant’s
right to equality of treatment.
52. I am therefore
satisfied that overall, if regard is had to the totality of
aggravating and mitigating circumstances including
the lengthy period
of pre-sentence incarceration of two years, substantial and
compelling reasons are present which justify reducing
the minimum
sentence of 15 years. The considerations in this case approximate
those of Dlamini and the earlier case of Vilakazi
in that there is
effectively a single serious offence which is subject to the minimum
sentence provisions while there is nothing
to suggest that the
appellant deliberately delayed the finalisation of the case.
OBITER- DATE FROM
WHEN SENTENCE COMMENCES
53. Lopes J in
Bhengu at para [36 ] noted that section 51(4) of the CPA had been
effectively repealed by the
Criminal Law (Sentencing) Amendment Act
of 2007
with effect from 31 December 2007 (per Government Gazette no
30638) thereby allowing the period spent in custody to be taken into
account in determining an appropriate sentence.
54. However
section
39
of the CSA precludes a court from directing, in an appropriate
case, that a sentence may commence from the date when the accused
was
detained in custody. It provides;
39 Commencement,
computation and termination of sentences
(1) Subject to the
provisions of subsection (2) a sentence of incarceration takes effect
from the day on which that sentence is
passed, unless it is suspended
under the provisions of any law or unless the sentenced person is
released on bail pending a decision
of a higher court, in which case
the sentence takes effect from the day on which he or she submits to
or is taken into custody.
55. The current
provisions of
section 39(1)
of the CSA came into effect on 1 October
2004 through
section 5
of the
Parole and Correctional Supervision
Amendment Act 87 of 1997
. It effectively re-enacted the provisions of
section 32(1)
of the old Prisons Act 8 of 1959 which had been
authoritatively interpreted in S v Hawthorne en ‘n ander
1980(1) SA 521 (AD)
at 525E. It therefore remains binding authority.
56. The courts have
been confronted with the inability to direct that a custodial
sentence commences prior to the date on which
it is passed. Until the
advent of the minimum sentence regime under section 51 of the CLAA
for the majority of serious offences,
a court could readily take into
account the period an offender was held in custody awaiting trial by
reducing the overall sentence
imposed (Hawthorne at 525E). The case
of Radebe demonstrates that it is not possible to do so as all
aggravating and mitigating
features, including the period of
pre-sentence detention, must be considered in weighing whether there
are substantial and compelling
reasons to deviate from the prescribed
minimum sentence.
57. Radebe was most
recently applied in S v Dlamini
2014 (1) SACR 530
(GP). The full
court considered that it was unnecessary to take into account the
period of two and a half years that the appellant
spent in custody
prior to sentencing. It considered life imprisonment to be an
appropriate sentence having regard to the appellant’s
personal
circumstances and the nature of the offence. Lamprecht AJ on behalf
of the court said at para [18] that;
“For a trial
court (or a Court of Appeal) to be able to properly compute a lesser
sentence than life imprisonment it will
have to take parole
legislation and policies into account to determine how long a
sentence of life imprisonment would effectively
be, before it can be
adjusted downward. That is, however, the domain of the executive, and
courts should be wary to tread on the
terrain of other arms of
government, in order to preserve the separation of powers doctrine.
In any event —
'the test is not
whether on its own that period of [awaiting-trial] detention
constitutes a substantial or compelling circumstance,
but whether the
effective sentence proposed is proportionate to the crime or crimes
committed: whether the sentence in all the
circumstances, including
the period spent in detention prior to conviction and sentencing, is
a just one'. (citing Radebe at [14])
58. Goldstein J in
Vilakazi (2000(1) SACR 140(W) at 142f - i) raised a concern about the
court’s inability to ante-date its
sentence in appropriate
cases to when the offender was first detained and considered that the
legislature ought to specifically
allow sentences to be antedated so
as to take into account the actual time spent in custody awaiting
trial .
Hardships in
relation to the limitations of section 282 of the CPA were exposed in
Mgedezi and led the court to call for remedial
legislation which
subsequently occurred through an amendment to the section.
59. It is evident
that the inability to determine that a sentence under the minimum
sentence provisions should commence on a date
earlier than when it is
delivered does work hardship on an accused who, after being detained
in custody for two or three years,
is sentenced to life imprisonment
and who, in terms of section 73(6)(b)(iv) of the CSA, only becomes
eligible for parole after
serving a minimum sentence of 25 years. It
may also affect constitutionally safeguarded rights.
ORDER
60. The method
adopted in Vilakazi and Dlamini of taking the period of pre-sentence
detention into account appears appropriate to
the circumstances of
this case. Accordingly the two year period of pre-sentence
incarceration will be deducted from the fifteen
years minimum and the
court orders that;
a. The appeal on
sentence is upheld;
b. The court a quo’s
order is set aside and replaced with the following order in
accordance with the provisions of section
279 of the CPA;
The appellant is
sentenced to thirteen years imprisonment in respect of count 1 such
sentence to commence from 29 July 2011being
the date he was sentenced
by the trial court.
VALLY, J:
I agree
SPILG, J VALLY, J
DATE OF JUDGMENT:
17 September 2014
COUNSEL FOR THE
APPELLANT: Adv K. Cosyn
COUNSEL FOR THE
RESPONDENT: Adv R.T Mareume