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[2015] ZAGPJHC 218
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S v Isaac (SS207/2014) [2015] ZAGPJHC 218 (30 April 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG LOCAL
DIVISION, JOHANNEBURG)
CASE NUMBER: SS207/2014
DATE: 30 APRIL 2015
In the matter of
THE STATE
V
MOSELLA
ISAAC
.................................................................................................................
ACCUSED
JUDGMENT
DOSIO AJ:
SENTENCE
[1] The accused has pleaded guilty to
all three counts. Count one is a crime of kidnapping. Count two is
the crime of robbery with
aggravating circumstances as intended in
section 1 of Act 51 of 1977 read with the provisions of section 51
(2) and schedule 2
of the Criminal law Amendment Act 105 of 1977
(“Criminal Law Amendment Act”) as amended. Count three is
the crime of
murder read with the provisions of section 51 (1) of the
Criminal Law Amendment Act as amended.
[2] For purposes of sentence this court
has taken into consideration the accused’s personal
circumstances, the seriousness
of the offence and the interests of
the community. The court has borne in mind the main purposes of
sentence which is deterrence,
retribution, reformation and
prevention.
[3] As regards the events of this
fateful evening in respect to count 1, 2 and 3, this court has merely
the accused’s explanation
incorporated in the plea of guilty.
[4] The personal circumstances of the
accused are as follows; he is forty (40) years old, unmarried and has
one child. His level
of education is standard 9. Before his arrest he
was unemployed due to the fact that he was shot whilst working as a
security officer.
He is still attending hospital for medication. He
has one previous conviction of assault in 1998 where he was sentenced
to a fine
of one hundred Rand (R100).
[5] In respect to the seriousness of
the offences this court would like to state as follows:
In respect to count 1
Tying up someone and holding them
against their own free will, thereby depriving them of their freedom
of movement is a serious
offence. The deceased’s hands and feet
were tied with a rope.
In respect to count 2
The deceased was running a spaza shop
in the yard where the accused and the two men who assisted him in the
crime all lived. This
robbery was planned in that the accused and the
other two men who assisted him, lured the deceased to Lucky
Kgakatsane’s
room. The accused together with Robert Mofokeng
and Lucky Kgakatsane decided to switch off the electricity from the
main switch
which was in the latter’s room. This caused the
deceased to come to Lucky Kgakatsane’s room. The accused and
the other
two men then over-powered him and tied him up. This enabled
the three men to rob the deceased of R1200 in cash, his cell phone
and 6 loose cigarettes. It is clear the threat to inflict serious
bodily harm was imminent when these three men tied up the deceased.
This threat materialized when the accused strangled the deceased.
In respect to count 3
Murder is the most serious of crimes.
It not only ended the deceased’s life, but it left hardship
for the family members
left behind who possibly depended on the
deceased for their survival. The accused killed the deceased to
silence him. This deceased
was tied up and was no threat to the
accused. He was an innocent and defenceless man. What makes this
crime more heinous is that
instead of taking the deceased’s
possessions and leaving him to be found with dignity by his loved
ones, the accused, together
with the other two men decided to hide
the body and dump it in Ntabamhlophe. This must have created more
pain and anguish to the
family members who must have had sleepless
nights wondering what had happened to the deceased. The body of the
deceased was found
eight days later in a severe state of
decomposition.
[6] In respect to the interests of the
community, this court has taken note of the fact that the community
observes the sentences
that courts impose and the community expect
that the criminal law be enforced and that offenders be punished. The
community must
receive some recognition in the sentences the courts
impose, otherwise the community will take the law into their own
hands. If
a proper sentence is imposed it may deter others from
committing them.
[7] In respect to count two (2) the
provisions of the Criminal Law Amendment Act with specific reference
to section 51 (2) dictates
that notwithstanding any other law but
subject to subsection (3) and (6), an accused who has been convicted
of a Part two of Schedule
2 offence, which includes robbery with
aggravating circumstances, shall in the case of a first offender be
sentenced to a period
of imprisonment for a period of not less than
15 years.
[8] In respect to count three (3) the
provisions of the Criminal Law Amendment Act with specific reference
to section 51 (1) dictates
that if an accused has been convicted of
an offence referred to in part 1 of schedule 2, he shall be sentenced
to life imprisonment.
The death of the deceased was caused by the
accused whilst committing the offence of robbery with aggravating
circumstances. The
accused had the intention in the form of dolus
eventualis. Although this murder was not planned, it was committed
whilst executing
the robbery with aggravating circumstances,
accordingly the offence falls within the ambit of a part 1 of
schedule 2.
[9] The court has notwithstanding the
application of the prescribed minimum sentences, considered other
sentencing options. This
court does not find that a fine, a suspended
sentence or correctional supervision is appropriate in these
circumstances.
[10] Section 51 (3) of the Criminal Law
Amendment Act states that if any court referred to in subsection (1)
or (2) is satisfied
that substantial and compelling circumstances
exist then the court may impose a lesser sentence.
[11] As stated by the learned Marais JA
in the case of S v Malgas
2001 (1) SACR 469
SCA, paragraph I;
“if the sentencing court on
consideration of the circumstances of the particular case is
satisfied that they render the prescribed
sentence unjust in that it
would be disproportionate to the crime, the criminal and the needs of
society, so that an injustice
would be done by imposing that
sentence, it is entitled to impose a lesser sentence.”
[12] Both counsel addressed the court
from the bar regarding sentence. No witnesses were called to testify.
[13] The crime of murder and then
hiding the body of the deceased is heinous. A sentence of life
imprisonment is applicable in these
circumstances.
[14] The defence counsel submitted that
the accused after his arrest co-operated with the police, and on the
day of his arrest made
a pointing out. He did not deny his
involvement in these crimes and pleaded guilty. Furthermore, at the
time the accused killed
the deceased he was not armed. The accused
has shown remorse for his actions. The defence counsel requested this
court to consider
these aspects as substantial and compelling
circumstances to depart from the minimum prescribed sentences
applicable in respect
to count two (2) and three (3). Counsel
requested this court to order that the sentences imposed run
concurrently.
[15] Counsel for the State agreed that
there are circumstances placed on record which would justify a
departure from the prescribed
minimum sentences.
[16] These circumstances, cumulatively
assessed, render a sentence of fifteen (15) imprisonment in respect
to count two (2) and
life imprisonment in respect to count three
unjust. They qualify as substantial and compelling circumstances.
[17] Irrespective of these mitigating
factors, I come to the conclusion that the crimes which the accused
committed are so severe
that a long term of incarceration cannot be
avoided.
[18] It is unclear to this court why
the accused transformed himself from an ostensibly law abiding
citizen, who had worked as a
security officer, into a person who
decided to rob and murder this deceased. It is unclear to this court
whether the accused acted
out of need or greed. Although he pleaded
guilty, it is clear that he may not have been arrested had the
informers not declared
his involvement in the crime.
[19] This court cannot only consider
the accused’s personal circumstances but must also consider the
interests of the community.
To focus on the well-being of the accused
to the detriment of the interests of the community would result in a
distorted and warped
sentence.
[20] The accused has been in custody
since the 27th of August 2014.
[21] The cumulative effect of sentences
has been considered by this court. All these offences arise from the
single intent of robbing
the deceased. Accordingly this court will
order the concurrent running of sentences as the offences are
inextricably linked in
terms of the locality and time.
[22] In the result the following order
is made:
The accused is sentenced to 5 years
imprisonment on count 1
The accused is sentenced to 10 years
imprisonment on count 2.
The accused is sentenced to 15 years
imprisonment on count 3
In terms of section 280(2) of the
Criminal Procedure Act, the court orders that the five years
imprisonment imposed on count one
as well as five (5) years of the
ten (10) imprisonment imposed on count two will run concurrently with
the fifteen (15) years imprisonment
imposed on count three.
The effective term of imprisonment is
twenty (20) years.
[23] In terms of
section 103
(1) (g) of
the
Firearms Control Act 60 of 2000
, the accused is declared unfit to
possess a firearm.
D DOSIO
ACTING JUDGE OF THE HIGH COURT
Appearances:
On behalf of the State Adv
Stellenberg
On behalf of the Accused Adv
Mkhwanazi
Date Heard: 29 April 2015
Handed down Sentence: 30 April
2015