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[2016] ZAGPJHC 88
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Nkuna v S (A324/2015) [2016] ZAGPJHC 88 (29 April 2016)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: A324/2015
DATE: 29 APRIL 2016
In the matter between:
Nkuna,
Andrew
..........................................................................................................................
Appellant
And
The
State
.................................................................................................................................
Respondent
JUDGMENT
Van der Linde, J:
[1]
This appeal is against sentence only by
leave of the regional court sitting at Protea. That court convicted
the appellant of murder,
and sentenced him to 15 years imprisonment
on the basis of s.51(2)(a)(i) of the Criminal Law Amendment Act, 105
of 1997 (“the
Act”), often referred to as the minimum
sentencing legislation. The appellant was thus convicted of murder “…
in circumstances other than those
referred to in Part I.”
Murder in
circumstances referred to in part I, is a reference to planned or
premeditated murder.
[2]
The
facts of which the appellant was convicted were that one evening,
when he arrived home, he was locked out of the home where
he and his
partner and her two children had been living. He left and returned in
the early hours of the morning. There he found
his partner and
another man sitting at the table. A scuffle ensued which resulted in
the appellant stabbing his partner; she bled
to death. The
appellant’s own version of the scuffle exculpated him, but was
rejected by the court a quo. Leave to appeal
against the conviction
was refused.
[3]
The
murder of which the appellant was convicted, compels a court to
sentence (“
shall sentence”
)
the offender to 15 years imprisonment. There is an exception;
s.51(3)(a) provides: “
If any court
referred to in subsection (1) or subsection (2) is satisfied that
substantial and compelling circumstances exist which
justify the
imposition of a lesser sentence than the sentence prescribed in those
subsections, it shall enter those circumstances
on the record of the
proceedings and must thereupon impose such lesser sentence: …”.
[4]
In
this case the court a quo did not find that substantial and
compelling circumstances existed, and none such was recorded on the
record. In submissions before us the appellant pointed out that the
court did not even refer to “
substantial
and compelling circumstances”
in
its judgment on sentence, and the proposition was that the court
imposed 15 years without referring to or considering whether
these
existed at all. But it is clear from the record that the appellant
was told at the outset of the trial that he was being
charged with
murder which upon conviction would lead to the imposition of the
minimum sentences; the charge sheet makes that expressly
plain.
[5]
Further, when the prosecutors made
submissions on sentence, the State expressly asked for a sentence as
was intimated when the charges
were put to the appellant. The
inference is unavoidable that the magistrate imposed the sentence of
15 years because the Act compelled
him to do so.
[6]
But
of course, if the magistrate did not actually bear the provisions of
the Act in mind when imposing the sentence, and thus arrived
at a
sentence of 15 years imprisonment free of those statutory
constraints, that does not afford this court greater power to
interfere
in the sentence. The fact remains that absent substantial
and compelling circumstances the minimum sentence must be imposed.
And
if the magistrate determined that 15 years imprisonment was
appropriate, without actually bearing the provisions of the statute
in mind, the implication is in any event that he found that there
were no circumstances justifying a lesser sentence.
[7]
As
it happens, this point was expressly abandoned by counsel for the
appellant during the hearing of the appeal. In argument, however,
it
was contended that there were substantial and compelling
circumstances that justified the imposition of a lesser sentence.
These were that the appellant was 29 years old when the offence was
committed; he was a first offender; he had a grade 11 education;
he
was employed at the time of the offence; he was providing for his
father; he had been in custody for 11 months awaiting finalization
of
the trial; and the offence was committed on the spur of the moment.
[8]
The appropriate application of the Act was
discussed in S v Dodo:
[1]
“
A Section 51 has
limited but not eliminated the courts' discretion in imposing
sentence in respect of offences referred to in Part
1 of Schedule 2
(or imprisonment for other specified periods for offences listed in
other parts of Schedule 2).
B
Courts are required to approach the imposition of sentence conscious
that the Legislature has ordained life imprisonment (or the
particular prescribed period of imprisonment) as the sentence that
should ordinarily and in the absence of weighty justification
be
imposed for the listed crimes in the specified circumstances.
C
Unless there are, and can be seen to be, truly convincing reasons for
a different response, the crimes in question are therefore
required
to elicit a severe, standardised and consistent response from the
courts.
D
The specified sentences are not to be departed from lightly and for
flimsy reasons. Speculative hypotheses favourable to the offender,
undue sympathy, aversion to imprisoning first offenders, personal
doubts as to the efficacy of the policy underlying the legislation,
and marginal differences in personal circumstances or degrees of
participation between co-offenders are to be excluded.
E
The Legislature has however deliberately left it to the courts to
decide whether the circumstances of any particular case call
for a
departure from the prescribed sentence. While the emphasis has
shifted to the objective gravity of the type of crime and
the need
for effective sanctions against it, this does not mean that all other
considerations are to be ignored.
F
All factors (other than those set out in D above) traditionally taken
into account in sentencing (whether or not they diminish
moral guilt)
thus continue to play a role; none is excluded at the outset from
consideration in the sentencing process.
G
The ultimate impact of all the circumstances relevant to sentencing
must be measured against the composite yardstick (''substantial
and
compelling'') and must be such as cumulatively justify a
departure from the standardised response that the Legislature
has
ordained.
H In
applying the statutory provisions, it is inappropriately constricting
to use the concepts developed in dealing with appeals
against
sentence as the sole criterion.
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.
J In
so doing, account must be taken of the fact that crime of that
particular kind has been singled out for severe punishment and
that
the sentence to be imposed in lieu of the prescribed sentence should
be assessed paying due regard to the bench mark which
the Legislature
has provided.”
[9]
In
supplementary heads of argument submitted after the hearing had been
concluded, Adv. Cosyn of the Johannesburg Justice Centre
on behalf of
the appellant elaborated on the factors listed above. She stressed
the appellant’s first offender status; that
he was remorseful;
and the period awaiting finalization of the trial. In each instance
helpful references to applicable authorities
were supplied, and we
are grateful for the assistance afforded by counsel.
[10]Having considered those
factors, we are not able however to conclude that they constitute
substantial and compelling factors
in this case, viewed either
individually or cumulatively. In our view the factors taken
individually are, without intending to
belittle them, of a generic
nature. And we do not believe they become less so, in this case, when
they are aggregated. It seems
to us that the factors listed are of
the kind that are present virtually inevitably at the textbook-case
of murder, specifically
murder that was not planned or pre-mediated.
[11]In this latter regard we
believe that Mr. Ndou is correct when he submits that the minimum
sentence of 15 years is specifically
prescribed for an unplanned
murder by a first offender.
[12]In the circumstances the
appeal cannot succeed and the following order is made:
The appeal is dismissed.
WHG van der Linde
Judge, High Court
Johannesburg
I agree.
HW Sibuyi
Acting Judge, High Court
Johannesburg
For the appellant:
Adv. K Cosyn (0724066735)
Johannesburg Justice
Centre
8
th
Floor, 70 Fox Street
Johannesburg
Tel:
011 870 1480
For
the respondent: Adv. R Ndou
Office
of the Director of Public Prosecutions
Gauteng
Local Division
Johannesburg
Tel:
011220 4269
Date
of hearing: 21 April 2016
Date
of judgment: 29 April 2016
[1]
2001(3) SA 382 (CC) at [11], adopting S v Malgas,
2001 (2) SA 1222
(SCA).