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[2018] ZAGPJHC 14
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S v Skhosana (20/2017) [2018] ZAGPJHC 14 (20 February 2018)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION,
JOHANNESBURG
CASE
NUMBER: 20/2017
DPP
REF: 10/2/11/1-205/2016
Not
reportable
Not
of interest to other judges
Revised.
20/2/2018
In
the matter between:
THE
STATE
and
OBAKENG
GRIOUS
SKHOSANA
ACCUSED
SENTENCE
MATSHITSE
AJ
[1]
Mr Obakeng Gracious Skhosana (Accused) have been convicted
of six counts, being, robbery with aggravating
circumstances, murder, two counts of attempted murder, unlawful
possession of a firearm, and unlawful possession of ammunition,
I
must now impose sentence upon him. In determining an appropriate
sentence, the court has regard to your personal circumstances,
the
nature of the crime, and the interests of society. In
appropriate circumstances a court will also exercise a measure
of
mercy to the accused. S v Zinn
[1]
[3]
I agree with the sentiment which were stated in an article entitled:
Crime and Punishment in South Africa 1975 at page 150 where
Nicholas
stated as follows;-
“
A
criminal sentence cannot, in the nature of things, be a matter of
precise calculation…There are no scales by which these
matters
can be measured and there is no relationship which makes it possible
to express them in terms of punishment” You
must understand
that sentencing is an integral part of punishment system. Its purpose
is not so much to please the community as
it is to serve the interest
of the society. The courts exist through the will of the people and
are therefore merely instruments
by which or through which society
exerts punishment on offenders. So when this court imposes a sentence
on you, know that it is
the will of the people that is brought to
bear on you. Gone are the days when, in exerting punishment on an
offender, the victim,
or his or the people on his behalf, took the
law into their hands.
[4]
It is commonly accepted that there are many purposes of sentencing.
There is firstly, the desire to punish a person who is a
wrongdoer
who has offended against society and who has caused harm to the
others. There is secondly, the intention to prevent the
wrongdoer
from committing such an offence again. This is the individual
deterrence consideration that the wrongdoer, he or she
will be
deterred from engaging in actions which lead to or are themselves
criminal. In the case of certain offences particularly
those thought
to be more frequently committed in society and more destructive of
society there is the purpose of general deterrence.
That is the
purpose of sending a message to other persons that they should not
engage in this kind of activity or wrongdoing and
fourthly, there is
the hope that whatever sentence is imposed can possibly lead to
rehabilitation.
[5]
In mitigation of sentence you did not testify or call any witnesses
your counsel submitted your personal circumstances from
the bar. You
are 22 years old and at the time that you committed this offence you
were 21 years old. You have no previous convictions,
that is, you are
a first offender, you went to school up to grade 10, you have been in
custody for a period of about 1 year and
3 months. You are single and
last born out of 4 siblings and currently you reside with your
mother, and you depend upon her for
your livelihood, your mother is
not permanently employed but to get some income she does part-time
work, like doing ironing in
the community. You unemployed at the time
of your arrest you had just completed a training in securities and
you were waiting for
the certificate. The area that you residing at
is a squatter camp (informal settlement) which is very packed, it is
not a properly
lined up informal settlement /residence to such an
extent that it is even impossible to can drive a motor vehicle there.
The offences,
with the exception of count 1, robbery with aggravating
circumstance, of which your convicted of took place at a tavern and
alcohol
was consumed there.
[6]
Among others your counsel submitted that in mitigation of sentence
the court should regard the following as substantial and
compelling
circumstances in order for the court to deviate from imposing the
minimum sentences: your age, that alcohol played a
role at the time
of the commission of the offence, that is you were under the
influence of alcohol, your family back ground, you
father is not
residing with you and that has an impact upon yourself, that the area
that you are leaving at is very pact and as
such it does have an
influence in commission of offences. In support of this submissions,
she referred the court to and quoted
several cases.
[7]
In aggravation of sentence the State called the father of the
deceased, being Mr Doubt Ndlovu, to testify, among others he
testified that, at the time of death of Sibusiso Ndlovu, he was 24
years old and he was his only child, he has no other children.
The
deceased was assisting at home, as he was employed, and he is doing
odd jobs.
[8]
His passing has a negative effect upon him and the family, his heart
is broken, more so since they are neighbours with accused
family and
they stay a distance of about 500 meters and his family has never
come to his house to come and apologies or say something
regarding
this incident.
[9]
Counsel for the State submitted among others that accused has not
shown any remorse for what he has done, he has failed to come
and
testify and to take Court in its confidence, alcohol did not have any
influence on him, because during his testimony he testified
that he
was able to can distinguish between right and wrong. He has so much
ego and he is also arrogant, because only few days
ago at the time he
robbed the complainant of his firearm he spared him his life, only
few days later he did not care of any persons
live he decided to shot
at innocent people. The reasons or points that have been advanced by
the defence as being substantial and
compelling circumstances the
court should regard them as not substantial and compelling
circumstances and as a result there no
reason the court should
deviate from the minimum sentences.
[10]
In short the facts of this case are that on the 20 March 2016 you and
another person robbed the complainant, Victor Albert
Edwards, of his
firearm, and the following weekend, on the 26 March 2016, at David’s
tavern, when one of the complainants,
Tumelo Olifant greeted
yourself, and because you allegedly said he does not know you,
without any provocation you said you can
smash his head, you shoot at
him and fortunately the bullet hit him on his shoulder, you then
chased him, when the deceased tried
to intervene you shoot at him in
the stomach and he died, same bullet also hit Mr Thando Mfono on his
thigh.
[11]
It has become apparent that there is an increasing disrespect for the
law. On top of this violent crime remains a serious and
vexing
problem in our society. The news media reports constantly and
prominently on crimes of a violent nature. Often the public’s
reaction to such crimes is highlighted with calls for Courts to deal
more harshly with the perpetrators of such crimes. Courts
are alive
to the interests of society and recognise they have a duty to protect
the right of law-abiding members of society not
to live in constant
fear of violence whether against their person or property.
[12]
There is no serious crimes than the ones of which you have been found
guilty of. Among others you have taken the life of another
person and
there is no possibility that any sentence imposed by this or any
court can match the loss of Mr Sibusiso Ndlovu of his
continuing
life. In S v C
[2]
it was held that “society demands protection in the form of
heavy and deterrent sentences from the courts against such atrocious
crimes”
[13]
In consideration of the victim it was stated in the case of S v
MATYITYI
[3]
that:- “An enlightened and just penal policy requires
consideration of a broad range of sentencing options, from which an
appropriate option can be selected that best fits the unique
circumstances of the case before court. To that should be added, it
also needs to be victim-centred. Internationally the concerns of
victims have been recognised and sought to be addressed through
a
number of declarations, the most important of which is the UN
Declaration of the Basic Principles of Justice for Victims of Crime
and Abuse of Power
[14]
By accommodating the victim during the sentencing process the court
will be better informed before sentencing about the after-effects
of
the crime. The court will thus have at its disposal information
pertaining to both the accused and victim, and in that way hopefully
a more balanced approach to sentencing can be achieved. Absent
evidence from the victim, the court will only have half of the
information necessary to properly exercise its sentencing discretion.
It is thus important that information pertaining not just
to the
objective gravity of the offence, but also the impact of the crime on
the victim, be placed before the court. That in turn
will contribute
to the achievement of the right sense of balance and in the ultimate
analysis will enhance proportion
[15]
It is stating the obvious but it bears repeating that murder is
the most serious of crimes. In wrongfully taking
the life of the
deceased your actions have impacted on the lives of the deceased’s
family, relatives and friends. They must
now deal with the emotional
trauma that his violent and premature death has thrust on them. I
agree with the State that so far
you have not shown sign of being
remorseful, even your family have not gone to the deceased family to
apologies to show that really
you have made a mistake,
[16]
However, I take caution from the decided case of S v Banda
[4]
when it says:
“
merely
to find that a crime is by itself serious without regard to its
setting and its factual context, and thereby concluding that
the
crime committed by the offender is therefore also serious, is not
appropriate, and may result in a serious misdirection. The
court does
not and cannot rely on a catalogue of crimes. To do so would result
in a purely mechanistic approach, whereby the Court
in its judicial
discretion, would fail to pay regard to the facts and circumstances
of the particular criminality, rather than
harshness”.
[17]
Criminal Law Amendment Act
[5]
(‘CLA Act’) prescribes specific periods of imprisonment
for certain crimes. Like the offences that you have been convicted
off being, robbery with aggravating circumstances, murder and
unlawful possession of a semi-automatic pistol a sentence of 15 years
imprisonment is prescribed in respect of each offence. A Court may
however depart from the prescribed sentence if there are substantial
and compelling circumstances that justify the imposition of a lesser
sentence. In assessing whether such sentence is justified
the Court
will take into account of any aggravating factors and the nature and
extent thereof.
[18]
When it comes to substantial and compelling circumstances It was
stated in S v Malgas
[6]
that:
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. It would be an impossible task to attempt to catalogue
exhaustively either those circumstances or
combinations of
circumstances which could rank as substantial and compelling or those
which could not. The best one can do is to
acknowledge that one is
obliged to keep in the forefront of one's mind that the specified
sentence has been prescribed by law as
the sentence which must be
regarded as ordinarily appropriate and that personal distaste for
such legislative generalisation cannot
justify an indulgent approach
to the characterisation of circumstances as substantial and
compelling.
[19]
I do consider what have been submitted by your counsel, more so when
she submitted that you made a wrong “judgement”
and as a
result you made a mistake. I will say further as submitted by the
State the firearm made you arrogant and think that and
since you
where in possession of it, and felt like a man, you wanted to show it
off, there was no one who was going to stand in
front of you. I
belief that when a person is still young, like yourself, and having
pear pressure and with that kind of social
back ground as stated by
your counsel, sometimes in his life he is bound to make a wrong or
“stupid” mistakes and I
will take that you also made that
mistake during the commission of the offence at David’s tavern.
[20]
In S v Mabuza
[7]
par 23 it was held that the legislature has clearly intended
youthfulness no longer to be regarded as per se mitigating factor.
However, that a court cannot, therefore, lawfully discharge its
sentencing function by disregarding the youthfulness of an accused
offender in deciding on an appropriate sentence in so doing, it would
deny the youthful offender the human dignity to be considered
capable
of redemption” Like in your case at the time that you committed
these offences you were 21 years old and you are
still young, you
fall under the category of youth.
[21]
When considering the factors relevant in each case, the court will
seek circumstances to establish the measure of mercy the
court must
intermingle into the sentence. Remorse is important when the court
must decide as to the degree of mercy to be applied
when sentencing.
True penitence is not mere expression that the accused is remorseful;
but is an acceptance of his guilt and willingness
to accept
responsibility for his action and be punished, in this case you have
shown known. The Supreme Court of Appeal has recognised
that remorse
or the lack thereof may be taken into account in determining
sentence. S v Makhudu
[8]
at para [7] where the
Court
stated: ‘[7] …… the behaviour of an accused
during the trial may be indicative of a lack of repentance
or
intended future defiance of the laws by which society lives and
therefore be a relevant factor in considering sentence ……’
[22]
The right to life is entrenched in the Bill of Rights of the
Constitution. In terms thereof every individual, which includes
you,
is entitled to this right. Yet you showed no respect for the
deceased’s right to life.
[23]
No matter which sentence this court may impose upon you, it will
never bring the deceased back to life. I do take into consideration
what has been stated in Malgas
[9]
case, that when justifying a departure, a court is to guard against
lapses, conscious or unconscious, into sophistry or spurious
rationalisations or the drawing of distinctions so subtle that they
can hardly be seen to exist also when it talks of flimsy reasons.
[24]
However, in offering you a measure of mercy and hoping that you can
be rehabilitated, and after careful consideration of your
personal
circumstances, taking them cumulatively and not to close the door on
your future, as it has been stated in several decided
cases that even
a harsh sentence, on a young person, cannot on its own rehabilitate
him, I belief it is upon a person to show that
he really wants to be
rehabilitated. I therefore regard them as they have been submitted by
your counsel to be substantial and
compelling circumstances. Which
means that there is justifiable reason for imposing a lesser sentence
than the prescribed one of
imprisonment as prescribed by the CLA
[25]
Lastly, I wish to end by what was stated by Logodi J in the case of S
v WV
[10]
when coming to sentence:
“
It
is the kind of sentence which we impose that will drive ordinary
members of our society either to have confidence or to lose
confidence in the judicial system. The sentences that our court
impose when offenses of this nature are committed, should strive
to
ensure that people are not driven to take the law into their own
hands, but rather to scare away would-be offenders”
[26]
The sentence imposed must therefore reflect the seriousness of
offence. At the same time, it must not have the effect of destroying
yourself unnecessarily. Your age, as well as the fact that you are
first offender, and your social back ground is considered to
indicate
that you are capable of rehabilitation. You deserve to be given an
opportunity to learn from mistakes and turn a new leaf
so that you
can be re- integrated back into the society.
[27]
However, the offences of which you have been convicted of are
deserving a severe punishment so as to convey the gravity of
them and
societies abhorrence thereof. In the result, I find that the
appropriate sentences that I can impose is the following:-
Sentence
Mr
Skhosana is sentenced to:-
1. Count 1- Robbery with Aggravating
Circumstances is sentenced to 10 years
2. Count 2 – Murder read in
accordance with the provisions of Section 51(2) of the Criminal Law
Amendment act 107 of 1997
is sentenced to 15 years imprisonment
3. Count 3- Attempted Murder- is
sentenced to 5 years imprisonment
4. Count 4- attempted Murder- is
sentenced to 3 years imprisonment
5. Count 5 – Unlawful possession
of a firearm - is sentenced to 10 years imprisonment
6. Count 6 - Unlawful possession of
ammunition- is sentenced to 2 years imprisonment
In
terms of the provisions of
section 280
of the
Criminal Procedure Act
55 of 1977
it is ordered that ten (10) years of sentence in Count 2
and sentences imposed on counts 3,4, 5 and 6 are to run concurrently
with
sentence imposed on count 1.
___________________
C
K MATSHITSE
ACTING
JUDGE OF THE HIGH COURT, GAUTENG LOCAL DIVISION, JOHANNESBURG
On
behalf of the State: Adv Mahommed
Instructed
by: DPP
On
behalf of the Accused: Adv Qoqo
Instructed
by: Legal Aid South Africa
Date
of Judgment: 20 February 2018
[1]
1969 (2) SA 537
(AD) and S v Rabie 1975 (4) SA 855 (AD)
[2]
1996(2) SACR 181 (C)
[3]
2011 (1) SACR 40 (SCA)
[4]
1991(2) SA 352(B)
[5]
105 of 1997
[6]
2001(1) SACR 469 (SCA)
[7]
2009(2) SACR 435 (SCA)
[8]
2003 (1) SACR 500
(SCA) See further S v Magoro and Others 1996 (2)
SACR 359 (SCA)
[9]
Referred to herein above
[10]
2013 SACR 204
GNP