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[2015] ZASCA 122
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Asmal v S (20465/14) [2015] ZASCA 122 (17 September 2015)
THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 20465/14
DATE: 17 SEPTEMBER 2015
Not Reportable
In the matter between:
YUSUF MOHAMED
ASMAL
..........................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
Neutral citation: Asmal v S
(20465/14)
[2015] ZASCA 122
(17 September 2015)
Coram: Shongwe, Theron and Majiedt
JJA
Heard: 19 August 2015
Delivered: 17 September 2015
Summary:
Sentence – on a
charge of unlawful possession of a fully automatic rifle (AK47) in
terms of
s 4
of the
Firearms Control Act 60 of 2000
– whether
the sentence imposed for unlawful possession of an AK47 rifle is
shockingly harsh – and whether the court
a quo ought to have
considered ordering the sentence on the firearm conviction to run
concurrently with the sentence on the two
other counts – this
court’s interference justified.
ORDER
On appeal from: KwaZulu-Natal Division
of the High Court, Pietermaritzburg (Patel and Mokgohloa JJ and
Skinner AJ sitting as court
of appeal):
1 The appeal is upheld and the sentence
imposed by the court a quo is set aside. 2 The following order is
substituted:
‘The appeal against sentence on
count 3, unlawful possession of a fully automatic firearm, succeeds.
The sentence of the trial
court is set aside. The following sentence
is substituted in its place:
Accused 2 is sentenced to 8 years’
imprisonment which must run concurrently with the effective sentence
imposed on counts
1 and 2.’ 3 The sentence is antedated to 23
January 2009.
JUDGMENT
Shongwe JA (Theron and Majiedt JJA
concurring)
[1] On 2 October 2008, the appellant,
Mr Yusuf Mohamed Asmal, was convicted by the KwaZulu-Natal Division
of the High Court, Pietermaritzburg
(Murugasen J) on charges of
kidnapping, murder and the unlawful possession of a fully automatic
rifle (to wit an AK47 rifle) read
with
s 51
of the
Criminal Law
Amendment Act 105 of 1997
. He was sentenced to 8 years’
imprisonment on the kidnapping charge, life imprisonment on the
murder charge and 15 years’
imprisonment on the unlawful
possession of a firearm charge. The court ordered the sentences
imposed in respect of counts 1 and
2 to run concurrently with the
sentence imposed on the murder charge, ie life imprisonment.
[2] The appellant’s appeal
partially succeeded to the full court, against his conviction and
sentence. The full court confirmed
the conviction on the kidnapping
charge, but reduced the sentence to 4 years’ imprisonment and
also changed the murder conviction
to culpable homicide and imposed a
sentence of 8 years’ imprisonment. The full court confirmed the
conviction and sentence
on the unlawful possession of the firearm
charge. It ordered the sentence of 4 years’ imprisonment for
kidnapping to run
concurrently with the 8 years’ imprisonment
on the culpable homicide charge only. This appeal is with the special
leave of
this court against sentence on the firearm charge only. It
further limited the appeal in the following manner:
‘(i) Whether the sentence imposed
for conviction of the firearm charge is shockingly harsh.
(ii) Whether the court ought to have
considered ordering the sentence on the firearm conviction to run
concurrently with the sentences
on the two other counts.’
[3] It is necessary to set out the
facts that led to the conviction and sentence. The deceased, an 18
year old boy, was employed
by the appellant as a herdsman and also
resided on the appellant’s property. Certain goods belonging to
the appellant went
missing and the deceased was suspected to have
stolen them. The appellant sought the assistance of Mondli Wilson
Majozi (accused
1 in the trial) and Tholinhlanhla Skhumbuzo
Nyathikazi (accused 3 in the trial) to look for the deceased as he
had disappeared
from the property. The deceased was found and
apprehended by accused 1 and others on the morning of 18 August 2006,
who then summoned
the appellant to the place where the deceased was
kept. The deceased was assaulted by the group of people, including
the appellant.
The appellant denied that he assaulted the deceased.
On the instructions of the appellant, the deceased was taken to a
place where
the appellant was employed as a junior manager. He was
made to sit there for hours on end until the evening of the same day.
On
the instructions of the appellant the deceased was questioned by
two employees regarding the alleged stolen goods and was
simultaneously
assaulted to compel him to admit to the theft. The
appellant is said to have struck the deceased with a shotgun on the
head and
he later died of head injuries. The deceased’s body
was dumped at La Mercy beach. On 30 August 2006 the police searched
the
appellant’s house, after he had been arrested, and found an
unlicensed fully automatic rifle (AK47) in the spare room. This
search occurred in the presence of his wife.
[4] The court a quo did not find any
material misdirections in respect of the sentence on the unlawful
possession of the firearm.
It, therefore found no reason to interfere
with the conviction and sentence.
[5] The appellant attacked the sentence
of the trial court on the basis that the firearm which, although
potentially capable of
firing on automatic, was unloaded and no
ammunition was found. He contended further that the firearm had not
been used in the commission
of an offence, therefore, it was argued,
substantial and compelling circumstances existed which justified a
departure from the
minimum sentence of 15 years’ imprisonment.
[6] The State conceded that 15 years’
imprisonment on this charge induced a sense of shock. It agreed with
the appellant’s
contention that the combined effect of all his
personal circumstances together with the surrounding factors amounted
to substantial
and compelling circumstances justifying a deviation
from the prescribed minimum sentence. I agree. This approach is
fortified by
numerous cases of a similar thread, for example S v
Madikane
2011 (2) SACR 11
(ECG); S v Dube
2012 (2) SACR 579
(ECG); S
v Sukwazi
2002 (1) SACR 619
(N); S v Manana
2007 (1) SACR 62
(T) at
68.
[7] It is settled law that each case
must be adjudicated on its own facts and that no two cases are the
same. In the present case
the appellant was 42 years old when he was
sentenced by the trial court, married with four children and employed
at a Hyperstore
as a junior manager. His wife was also employed.
Although the appellant had previous convictions, for purposes of
sentence he was
considered a first offender. The previous convictions
did not concern firearms and occurred more than ten years before the
commission
of the offence under discussion.
[8] This court in S v Barnard
2004 (1)
SACR 191
(SCA) para 9 correctly observed that:
‘A court sitting on appeal on
sentence should always guard against eroding the trial court’s
discretion … and
should interfere only where the discretion
was not exercised judicially and properly. A misdirection that would
justify interference
by an appeal Court should not be trivial but
should be of such a nature, degree or seriousness that it shows that
the court did
not exercise its discretion at all or exercised it
improperly or unreasonably.’
[9] The kidnapping and murder offences
occurred on 18 August 2006, but the AK47 was only found on 30 August
2006. The finding of
the rifle may appear to be unrelated to the
other charges, however, it was as a result of his arrest on those
charges that the
police, through their intelligence, decided to
search his house. In effect one would be justified to conclude that
the AK47 charge
emanates from the other charges. Had the appellant
not been suspected of the kidnapping and murder charges, his house
would, in
all probability, not have been searched. This conclusion
ought, justifiably, to result in the sentences running concurrently
especially
when this court considers the cumulative effect of the
sentences.
[10] In answer to the questions raised
by this court when granting special leave to appeal, the sentence
imposed on the possession
of the AK47 rifle was not only shockingly
harsh, but also disproportionate considering the facts of this case.
When the rifle was
found in the appellant’s house he had been
incarcerated already. The rifle was not loaded and no ammunition was
found. It
further had not been used in the commission of other
offences for which he had been arrested. It is a fact that the
appellant failed
to proffer a reasonable explanation for the
possession save for a bare denial. In my view, the court a quo ought
to have found
substantial and compelling circumstances justifying a
deviation from the prescribed minimum sentence.
[11] In view of the reasons above it
warrants this court’s interference with the sentence. It is in
the interests of the administration
of justice that an appropriate
sentence be imposed where necessary. Therefore the appeal against
sentence on the unlawful possession
of a firearm charge stands to
succeed.
[12] The following order is issued:
1 The appeal is upheld and the sentence
imposed by the court a quo is set aside. 2 The following order is
substituted:
‘The appeal against sentence on
count 3, unlawful possession of a fully automatic firearm, succeeds.
The sentence of the trial
court is set aside. The following sentence
is substituted in its place:
Accused 2 is sentenced to 8 years’
imprisonment which must run concurrently with the effective sentence
imposed on counts
1 and 2.’
3 The sentence is antedated to 23
January 2009.
J B Z SHONGWE
JUDGE OF APPEAL
Appearances
For the Appellant: A D Collingwood
Instructed by: Carlos Miranda
Attorneys, Pietermaritzburg;
Matsepes Inc, Bloemfontein.
For the Respondent: M V Mcanyana
Instructed by: Director of Public
Prosecutions, Johannesburg;
Director of Public Prosecutions,
Bloemfontein.