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[2015] ZAGPJHC 167
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Nkosi v S (A375/2014) [2015] ZAGPJHC 167 (28 July 2015)
REPUBLIC
OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION OF THE HIGH COURT,
JOHANNESBURG
CASE
NO:
A375/2014
DATE
: 28 JULY 2015
In
the matter between:
NKOSI,
ROBERT
MAFIKA
....................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
J
U D G M E N T
KATHREE-SETILOANE,
J
:
[1]
This is an appeal with leave of the High Court on sentence only.
[2]
On 17 May 2000 the appellant, a 25 year old male, was convicted by
Shongwe J (as he then was) on the following charges:
2.1
count 1 − robbery with aggravating circumstances;
2.2
count 2 – murder;
2.3
count 3 – intimidation;
2.4
count 4 – unlawful pointing of a firearm;
2.5
count 5 − unlawful possession of a firearm; and
2.6
count 6 – unlawful possession of ammunition.
[3]
The court
a quo
sentenced the appellant, on 23 May 2000 as follows:
3.1
count 1 − 15 years imprisonment;
3.2
count 2 − 18 years imprisonment;
3.3
count 3 − 4 years imprisonment;
3.4
count 4 − 2 years imprisonment;
3.5
count 5 − 3 years imprisonment;
3.6
count 6 − 1 year imprisonment;
The
court
a quo
ordered the sentence imposed on count 4 to run concurrently with the
sentence imposed on count 3, and the sentence imposed on count
6 to
run concurrently with the sentence imposed on count 5. As a result,
the effective sentence imposed by the court
a
quo
was 40 year’s imprisonment.
The court
a quo
made
an order that the appellant must serve at least 25 years of the
sentence imposed prior to being placed on parole.
[4]
The offences for which the appellant was convicted and sentenced
arise
from the armed robbery and murder of the deceased, on 22 August 1998
on Kakatu Street, Thokoza, by the appellant and his accomplice
known
only as “Dingaan”
[1]
.
The appellant and Dingaan held the deceased, who was known to them,
at gun point and robbed him of his cell phone, wallet and
neck chain.
Dingaan provided the appellant with a firearm and instructed him to
shoot the deceased in the stomach. The appellant
responded by saying
to Dingaan that he would rather shoot the deceased in the ear, as
this will cause him to die quickly. The appellant
then shot the
deceased in the ear and the deceased fell to the ground. Ms Nokuthula
Mashinini (“Ms Mashinini”), the
sister-in-law of the
deceased, witnessed the entire incident from behind a wall in close
proximity to where the appellant had robbed
and shot the deceased.
Since both the appellant and Dingaan were known to her, Ms Mashini
confronted them after they robbed and
shot the deceased. The
appellant pointed his firearm at Ms Mashinini and threatened to shoot
her if she informed members of her
family that they robbed and shot
the deceased. Both the appellant and Dingaan then ran away. Ms
Mashinini rushed home and informed
her aunt of the shooting. The
deceased was rushed to hospital and died in hospital two days later.
[5]
Sentencing is pre-eminently a matter for the discretion of the trial
court. A court of appeal is only entitled to interfere
with the
sentence where there has been a material misdirection by the trial
court or when the sentence imposed by the trial court
is shocking or
startlingly inappropriate
[2]
.
During argument, it was contended on behalf of the appellant that the
sentence of 40 years imprisonment is shockingly inappropriate,
and
that the trial court erred in failing to attach sufficient weight to
the following personal circumstances of the appellant:
(a) he
was only 23 years of age at the time of the commission of the
offences; (b) he was employed earning R200,00 per month;
(c) he
assisted his parents; (d) he is a first offender; (e) he was drunk
during the commission of the offences and was possibly
influenced by
his accomplice; and (f) the murder of the deceased was not
premeditated.
[6]
Prior to dealing with this contention, it is necessary to point out
that although the appellant was sentenced in relation to
counts 2
(murder) in terms of s 51(1) read with s 51(3) of the Criminal Law
Amendment Act 105 of 1997 (“the Act”) which
enjoins a
court to impose a mandatory sentence of life imprisonment unless it
is satisfied that substantial and compelling circumstances
exist
which justify imposition of a lesser sentence than prescribed, the
charge sheet makes no mention of this. Nor was he informed
of this at
the outset of the trial by either the court
a
quo
or his legal representative. What
is apparent from the record, however, is that after conviction and
prior to the commencement
of the sentencing hearing the Judge (
a
quo
), in chambers, requested the legal
representatives for the State and the appellant to address him at the
sentencing hearing on
the applicability of the Act to the appellant’s
convictions on counts 1 (robbery with aggravating circumstances) and
2 (murder).
[7]
During the sentencing hearing, the State contended that s 51(1) and
(2) read with 51(3) of the Act were applicable to the sentences
to be
imposed upon the appellant in respect of his convictions on counts 1
and 2, as these offences were committed after the commencement
of the
Act. Counsel for the appellant did not object, but rather remarkably
endorsed the State’s reliance on these provisions
of the Act as
enjoining the court
a quo,
subject
to the provisions of s 51(3) of the Act, to impose the minimum
sentence of 15 years imprisonment in respect of the
appellant’s
conviction on count 1, and life imprisonment in respect of his
conviction on count 2, despite the fact
that the appellant was not
pertinently warned at the outset of the trial that he faced the
prospect of the minimum sentencing regime
of the Act being applied
against him on conviction.
[8]
The appellant has not raised the State’s reliance on the
minimum sentencing regime of the Act, as a ground of appeal,
in its
application for leave to appeal before the court
a
quo
or before this Court on appeal. To
the contrary, both the State and the appellant were in agreement, at
the appeal hearing, that
because the Judge in the court in the court
a quo
had
invited the legal representatives for both the State and the
appellant to address him during the sentencing hearing on the
application of s 51(1) and (2) of the Act to the conviction of the
appellant on counts 1 and 2, the omission by the State to set
this
out in the charge sheet or raise it at the commencement of the
proceedings, would not vitiate the proceedings in the court
a
quo
. I disagree for the reasons set out
below.
[9]
In
S
v Kolea,
[3]
the Supreme Court of Appeal emphasised the importance for an accused
person to be informed in sufficient detail of the charge/s
against
him or her as follows:
‘
The
accused’s right to be informed of the charge he is facing, and
which must contain sufficient detail to enable him or her
to answer
it, is underpinned by s 35(3)(a) of the Constitution, which provides
that every accused person has a right to a fair
trial. The objective
is not only to avoid a trial by ambush, but also to enable the
accused to prepare adequately for trial and
to decide, inter alia,
whether or not to engage legal representation, how to plead to the
charge and which witnesses to call. It
follows that, if the State
intends to rely on the minimum-sentencing regime created in the Act,
this should be brought to the attention
of the accused at the outset
of the trial…’
Then
citing
S
v Seleka en Andere
[4]
in which the Court held that although it was desirable for a charge
to contain a reference to a penalty, this was not essential
as the
ultimate test was whether the accused suffered prejudice as a result
of the charge omitting to mention the penalty, the
SCA in
S
v Kolea
stated thus:
‘
[T]he
question that should be posed should be the following: Did the
appellant have a fair trial and, more specifically, was the
appellant
sufficiently apprised of the charge he or she was facing, and was he
or she informed, in good time, of any likelihood
of his or her being
subjected to any enhanced punishment in terms of the applicable
legislation. This, of necessity, entails a
fact based enquiry into
the entire proceedings of the trial.’
[10]
Mpati JA in
S
v Ndlovu
[5]
endorsed this approach stating:
‘
The
enquiry, therefore, is whether, on a vigilant examination of the
relevant circumstances, it can be said that an accused had
had a fair
trial. And I think it is implicit in these observations that where
the State intends to rely upon the sentencing regime
created by the
Act, a fair trial will generally demand that its intention
pertinently be brought to the attention of the accused
at the outset
of the trial, if not in the charge-sheet then in some other form, so
that the accused is placed in a position to
appreciate properly in
good time the charge that he faces as well as the possible
consequences.’
More
recently in
S
v Makatu,
[6]
the SCA re
-
affirmed
the principle that where no mention is made in the indictment of the
State’s reliance on s 51(1) of the Act and no
mention is made
of this during the trial except at the sentencing stage then the
imposition of a sentence of life imprisonment
would constitute a
misdirection.
[11]
In the current matter the appellant was neither informed in the
charge-sheet nor at the outset of the trial that the State
was
intending to rely on the minimum-sentencing regime created by the
Act. Moreover, the court
a quo
did not warn the accused that the State was relying on the minimum
sentencing regime created by the Act in relation to the charge
of
murder in count 2, and what the consequences of being charged of that
offence were. It would seem to me that the court
a
quo
was also not aware of the State’s
reliance on the minimum sentencing regime created by the Act, and for
that reason asked
counsel for both the State and the appellant to
address him on its applicability. It also seems to me that the State
had not applied
its mind to the applicability of the Act to the
charges of robbery with aggravating circumstances and murder in
counts 1 and 2
respectively, until asked by the court
a
quo
to address it on its applicability.
[12]
This begs the question: Was the appellant given a fair trial? This
question necessitates an assessment of the facts with reference
to,
in particular, the prejudice, if any, that the appellant may have
suffered as a result of the State’s omission to inform
him in
the charge-sheet or at the outset of the trial that it would be
relying on the minimum-sentencing regime created by the
Act. As
alluded to, the appellant’s legal representative did not object
to the State’s reliance on the minimum sentencing
regime
created by the Act during the sentencing proceedings. The
implications of his failure to object should not, in my
view, be
visited upon to the appellant because on scrutiny of the record of
the sentencing proceedings, it is quite clear that
the appellant’s
legal representative did not appreciate the impact that the
provisions of the Act, more specifically s 51(1)
and (2) could have
on the appellant’s fair trial rights. Frankly, I do not believe
that he appreciated the likelihood of
the appellant being sentenced
to an enhanced punishment of life imprisonment for his conviction on
count 2, and a minimum sentence
of 15 years imprisonment for his
conviction on count 1.
[13]
The appellant was, in my view, quite clearly ignorant of his fair
trial rights to be informed, in good time, of the charge
he was
facing and “of any likelihood” of him “being
subjected to an enhanced punishment”
[7]
in terms of the minimum-sentencing regime created by the Act.
As it happens, the appeal record reveals that neither the Judge
nor
the State fully understood the operation of the minimum sentencing
regime created by the Act, and its implications for an accused
convicted of murder as contemplated in the Act. Quite simply, the
court
a
quo
failed to recognise that the appellant could spend the rest of life
in prison, without being informed from the outset what the
consequences of being charged under the minimum-sentencing regime
created by the Act were. It cannot, in the circumstances,
be
said that the appellant was not prejudiced by the proceedings in the
court
a
quo.
Accordingly, the court
a
quo
clearly committed a misdirection by invoking the provisions of s
51(1) read with s 51(3) the Act, when the appellant’s attention
was not drawn to it in the charge sheet and at the outset of the
trial. This constitutes a ground for this Court to interfere with
the
sentence imposed by the court
a
quo
on appeal.
[14]
As indicated, the court
a quo
only applied the minimum sentencing regime of the Act to the
appellant’s conviction on count 2 (murder). On applying s 51(1)
read with s 51(3) of the Act to the appellant’s conviction on
count 2, the court
a quo
found substantial and compelling circumstances to be present which
warranted a deviation from the minimum sentence of life imprisonment
and consequently sentenced the appellant to a lesser sentence of 18
years imprisonment. On consideration of the sentence which
the court
a quo ultimately imposed upon the appellant in respect of his
conviction on count 2 (murder), I find that it is not out
of kilter
with what a court would consider appropriate, for a conviction of
murder, outside the minimum sentencing regime created
by the Act.
[15]
Murder is a serious offence which is prevalent in the jurisdiction of
the Court. The appellant murdered the deceased,
who was unarmed
and posed no threat, because he wanted to avoid identification by
him. Significantly, in this regard, the deceased
was known to the
appellant as they resided in the same area, and the deceased had
assisted him with food and money from time to
time in the past.
Although Dingaan had handed the appellant the unlicensed firearm, and
had instructed him to shoot the deceased
in the stomach, the
appellant elected instead to shoot the deceased in the ear in order
to ensure that he died quickly. It was
a cold, callous and senseless
armed robbery and murder that was motivated by sheer greed and purely
to avoid detection. Then, to
silence the only witness to the robbery
and shooting of the deceased, the appellant intimidated Ms Mashinini
by pointing a gun
at her and threatening to shoot her if she informed
on him.
[16]
The appellant pleaded not guilty and elected not to testify in
mitigation of sentence. In the absence of testimony from the
appellant as to what motivated him to commit the crimes; what has
since caused a change of heart; and whether he has a true
appreciation
of the consequences of his actions, I am unable to
conclude that he was remorseful for his actions
[8]
.
[17]
In addition, the aggravating circumstances far outweigh the
contentions that the appellant was only 23 years of age at the
time
of the commission of the offences and may have been influenced by
Dingaan who was older than him, and that he was under the
influence
of alcohol when he committed the offences. Quite apart from the fact
that the commission of an offence whilst under the
influence of
alcohol is not considered to be a mitigating factor, the appellant
has simply failed to provide any evidential basis
for these
contentions. As stated by the SCA in
S
v Matyity
[9]
‘
It
is trite that a teenager is
prima facie
to be regarded as immature and that youthfulness of an offender will
invariably be a mitigating factor unless it appears that the
viciousness of his or her deeds rules out immaturity. Although the
exact extent of mitigation will depend on all the circumstances
of
the case, in general a court will not punish an immature young person
as severely as it would an adult. It is well established
that, the
younger the offender, the clearer the evidence needs to be about his
or her background, education, level of intelligence
and mental
capacity, in order to enable a court to determine the level of
maturity and therefore moral blameworthiness. The question
in the
final analysis, is whether the offender’s immaturity, lack of
experience, indiscretion and susceptibility to being
influenced by
others reduce his blameworthiness. Thus, whilst someone under the age
of 18 years is to be regarded as naturally
immature, the same does
not hold true for an adult. In my view, a person of 20 years or more
must show by acceptable evidence that
he was immature to such an
extent that his immaturity can operate as a mitigating factor.’
Accordingly,
I find that the sentence of 18 years imprisonment, which the court
a
quo
imposed upon the appellant for his
conviction on count 2 (murder) to be appropriate and justified. I,
likewise, find that the sentences
imposed by the court
a
quo
in respect to the appellant’s
convictions on count 1 and counts 3 to 6 to also be appropriate, and
justified.
[18]
However, since the commission of offences of robbery with aggravating
circumstances and murder where concurrent and closely
connected to
each other, I find the imposition of an effective sentence of 40
years imprisonment to be shockingly inappropriate.
Significantly, in
this regard, although the court
a quo
caused the sentences imposed on count 4 to run concurrently with the
sentence imposed on count 3, and the sentence imposed on count
6 to
run concurrently with the sentence imposed on count 5, it failed to
take into consideration that the offences of robbery with
aggravating
circumstances and murder were closely connected to each other as
contemplated in s 280(1) of the Criminal Procedure
Act 51 of 1977
(“the
Criminal Procedure Act&rdquo
;). Thus, by failing to give
consideration to the cumulative effect of the sentences imposed, the
court
a quo
overlooked the impact which a sentence of 40 years imprisonment would
have on the well-being of the appellant. Accordingly, the
court a quo
committed a misdirection by failing to consider, the cumulative
effect that a sentence of 40 years imprisonment will
have upon the
appellant who was only 25 years old at the time of sentencing and,
the possibility that he may be integrated into
society upon his or
her release from jail in the future. In the circumstances, I find the
effective sentence of 40 years imprisonment
to be shockingly
inappropriate.
[19]
Furthermore, I am of the view that the court
a
quo
committed a misdirection by ordering, in terms of
s 276B
of the
Criminal Procedure Act, that
the appellant must serve 25 years of the
40 year sentence imposed before he is placed on parole. This, as
contended on behalf of
the appellant impacts unduly harshly upon him
and is tantamount to a sentence of life imprisonment. The court a
quo, in my view,
committed a misdirection first, by imposing a
non-parole period of 25 years without providing an evidential basis
and reasons for
doing so
[10]
and second, by not inviting the appellant to make submissions
on the appropriateness of imposing such a period
[11]
.
Significantly in this regard, our courts have consistently held that
a non-parole period may only be set in exceptional circumstances
[12]
.
No such circumstances were, however, found to be present in the
current matter. Accordingly, I find that the court
a
quo
committed a misdirection by imposing a non-parole period of 25 years.
[20]
In the result, I make the following order:
(1)
The appeal against sentence is upheld.
(2)
The sentence of 15 years imprisonment
imposed for the conviction on count 1 (robbery with aggravating
circumstances) is confirmed.
(3)
The sentence of 18 years imprisonment
imposed for the conviction on count 2 (murder) is confirmed.
(4)
The sentence of 4 years imprisonment
imposed for the conviction on count 3 (intimidation) is confirmed.
(5)
The sentence of 3 years imprisonment
imposed for the conviction on count 4 (unlawful pointing of a
firearm) is confirmed.
(6)
The sentence of 2 years imprisonment
imposed for the conviction on count 5 (unlawful possession of a
firearm) is confirmed.
(7)
The sentence of 1 year imprisonment imposed
for the conviction of count 6 (unlawful possession of ammunition) is
confirmed.
(8)
The sentence of 15 years imprisonment
imposed for the conviction on count 1 (robbery with aggravating
circumstances) is to run concurrently
with the sentence of 18 years
imprisonment for the conviction on count 2 (murder).
(9)
The order causing the sentence of 4 years
imprisonment for the conviction on count 3 (intimidation) to run
concurrently with the
sentence of 3 years imprisonment for the
conviction on count 4 (unlawful pointing of a firearm) is confirmed.
(10)
The order causing the sentence of 2 years
imprisonment for the conviction on count 3 (unlawful possession of a
firearm) to run concurrently
with the sentence of 1 year imprisonment
for the conviction on count 4 (unlawful possession of ammunition) is
confirmed.
(11)
The effective sentence of 40 years is
set aside and replaced with an effective sentence of 25 years
imprisonment.
(12)
The non-parole period of 25 years is set
aside.
(13)
The effective sentence is, in terms of
s
282
of the
Criminal Procedure Act 51 of 1977
, antedated to 23 May
2000 being the date upon which the sentence was imposed by the court
a quo.
F
KATHREE-SETILOANE
JUDGE
OF THE GAUTENG LOCAL
DIVISION,
JOHANNESBURG
I
agree:
AML
PATHUDI JUDGE OF THE GAUTENG LOCAL
DIVISON,
JOHANNESBURG
I
agree:
P
COPPIN
JUDGE
OF THE GAUTENG LOCAL DIVISION, JOHANNESBURG
Counsel
for the Appellant: Advocate WA Karam
Instructed
by: The Johannesburg Justice Centre
Counsel
for the Respondent: Advocate J Steyn
Instructed
by: The Director of Public Prosecutions
Date
of Hearing: 30 May 2015
Date
of Judgment: 28 July 2015
[1]
The appellant described Dingaan as his brother in evidence in chief.
[2]
S
v Malgas
2001(2)
SA 1222 (SCA).
[3]
2013 (1) SACR 409 (SCA).
[4]
1976
(1) SA 675 (T).
[5]
2003 (1) SACR 331
(SCA) ([2003]
1 All SA 66
para 12.
[6]
2014 (2) SACR 539
(SCA) at para 24
[7]
S
v Kolea
at para 9.
[8]
S
v Matyity
2011 (1) SACR 40
(SACR) at para 13.
[9]
(above) at para 14.
[10]
S
v Stander
2012
(1) SACR 537
(SCA) paras 12-13 and 20.
[11]
Strydom
v The State
(2015/14)
[2014] ZASCA 29
(23 March 2015) para 16
[12]
Director
of Public Prosecutions, North Gauteng: Pretoria v Gcwala
2014
(2) SACR 337
(SCA) para 20;
S
v Stander
(above) paras 12 -13;
Strydom
v The State
(above) para 16.