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[2014] ZASCA 179
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Machongo v S (20344/14) [2014] ZASCA 179 (21 November 2014)
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THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no:
20344/14
In the matter between:
RAPHAEL
MACHONGO
................................................................................................
APPELLANT
and
THE
STATE
.....................................................................................
RESPONDENT
Neutral citation:
Machongo v S
(20344/14)
[2014] ZASCA 179
(21 November 2014)
Coram:
Shongwe
JA, Mathopo and Gorven AJJA
Heard: 11 November 2014
Delivered: 21 November 2014
Summary:
Criminal
Procedure – sentence – failure to forewarn an accused
person of the applicability of the Minimum Sentence Act
is an
irregularity which may result in an unfair trial in respect of
sentence – an appeal court will be at large to consider
sentence afresh upon finding that a misdirection existed –
considering sentence afresh must mean that the appeal court ought
to
disabuse itself from what the court a quo said in respect of sentence
and that such power to sentence resides in the provisions
of
s 276
of
the
Criminal Procedure Act 51 of 1977
.
ORDER
On appeal from:
North West High Court, Mafikeng (Gutta
J, Djaje and Chwaro AJJ concurring sitting as court of appeal):
1.
The appeal against sentence is upheld
2.
The order of the full court dismissing the
appeal is set aside and replaced with the following:
‘
a)
The appeal against sentence is upheld
b)
The sentences of the trial court are set aside and replaced with the
following:
(i)
Accused number 2 is sentenced to 25 years’ imprisonment on the
charge of murder.
(ii) Accused 2 is
sentenced to 15 years’ imprisonment on the charge of robbery
with aggravating circumstances.
(iii) The whole
sentence on the charge of robbery with aggravating circumstances is
ordered to run concurrently with the 25 years’
imprisonment on
the murder charge.’
3.
The sentences are antedated to 18 November
2004 in terms of
s 282
of the
Criminal Procedure Act 51 of 1977
.
JUDGMENT
Shongwe JA (Mathopo and Gorven AJJA
concurred)
[1] This appeal is with the special
leave of this court, limited to sentence only. The appellant was
convicted of murder (count
1) and sentenced to life imprisonment and
also of robbery (count 2) with aggravating circumstances as defined
in
s 1
(i)
of the Criminal Procedure Act 51 of 1977 (CPA) and
sentenced to 20 years’ imprisonment. The appellant was
acquitted on counts
3 and 4 (unlawful possession of a firearm and
ammunition).
[2] His application for leave to appeal
against his conviction was unsuccessful, however leave was granted by
the trial court against
sentence only. The court a quo dismissed his
appeal against sentence and antedated the sentence to 18 November
2004. Hence the
special leave to appeal was granted by this court.
[3] The facts are simply that on 10
September 2002, the appellant together with two others planned to
steal or rob a Toyota Venture
(minibus) for purposes of using the
parts thereof. As they were walking in the street they noticed the
deceased’s Toyota
Venture, parked next to the gate. They saw
the deceased closing the gate. They attacked him – he produced
a firearm –
but they overpowered him and dispossessed him of
his firearm. The appellant took the firearm and a shot was fired, the
deceased
died as a result. The appellant and two others drove off
with the deceased’s Toyota Venture and they were arrested later
on the same evening and charged with murder and robbery with
aggravating circumstances. The charges were withdrawn against the
third suspect who was made a state witness in terms of s 204 of the
CPA.
[4] The main ground of appeal to the
full court was that the trial court erred in relying on the
provisions of s 51(1) of the Criminal
Law Amendment Act 105 of 1997
(Minimum Sentence Act), because no mention was made in the indictment
to inform the appellant of
the applicability of the Act. Nor did the
trial judge warn the appellant of its applicability. In granting
leave to the full court
the trial judge acknowledged that he erred in
applying the provisions of the Minimum Sentence Act. The appellant
contended that
failure to mention and to warn him of these provisions
ipso facto resulted in the miscarriage of justice. (See
S v Ndlovu
2003 (1) SACR 331
(SCA) para 12 and the case cited therein)
[5] The full court agreed that the
omission to mention the applicability of the minimum sentence regime
was irregular and constituted
a misdirection entitling it to
interfere with the sentence. (See
S v Ndlovu
supra) however,
it concluded that ‘the normal inherent penal jurisdiction of
the high court is applicable and the court will
have to consider the
sentence afresh’. It then embarked on an exercise to consider
the aggravating as well as the mitigating
factors. It concluded that
from the facts of this case and evidence on record, the sentences of
life imprisonment on the murder
charge and 20 years’
imprisonment on the charge of robbery with aggravating circumstances
are neither shockingly inappropriate
nor induce a sense of shock.
Lastly it said that the sentences imposed by the trial court were
fair and justified in the circumstances.
[6] Before us the appellant contended
that the trial court misdirected itself by relying on the provisions
of the minimum sentence
when no mention was made at all of its
applicability in the indictment. Also that the full court did not
consider the sentence
afresh but simply regurgitated the sentence
imposed by the trial court without more. On the question of the
robbery with aggravating
circumstances, counsel for the appellant
submitted that a sentence of 15 years’ imprisonment would be
appropriate. Counsel
for the State did not contend otherwise. I
consider a sentence of 15 years to be appropriate in the
circumstances.
[7] The respondent conceded that the
failure to mention or forewarn the appellant of the applicability of
the provisions of s 51(1)
and (2) of the Minimum Sentence Act,
indeed, resulted in an unfair trial in respect of sentence –
and also that the full
court applied an incorrect test by saying:
‘
[21]
It is trite that a court of appeal will only interfere when the
sentence imposed by the trial court is vitiated by an irregularity
or
misdirection or when the sentence is shockingly severe, disturbingly
inappropriate and totally out of proportion to the offence
committed.’
[8] On the murder charge the respondent
contended that these types of murders are overly prevalent in the
country and therefore
this court should send a strong message by
imposing the heaviest sentences in offences of this nature.
[9] This court in
S v Makatu
2006
(2) SACR 582
(SCA) para 7 said:
‘
[7]
As
a general rule, where the State charges an accused with an offence
governed by s 51(1) of the Act, such as premeditated murder,
it
should state this in the indictment. This rule is clearly neither
absolute nor inflexible. However, an accused faced with life
imprisonment – the most serious sentence that can be imposed –
must from the outset know what the implications and
consequences of
the charge are. Such knowledge inevitably dictates decisions made by
an accused, such as whether to conduct his
or her own defence;
whether to apply for legal aid; whether to testify; what witnesses to
call and any other factor that may affect
his or her right to a fair
trial. If during the course of a trial the State wishes to amend the
indictment it may apply to do so,
subject to the usual rules in
relation to prejudice.’
(See also:
S v Ndlovu
(supra);
S
v Legoa
2003 (1) SACR 13
(SCA) para 23 and
S v Seleke &
andere
1976 (1) SA 675
(T) at 682H (a decision of a full court);
recently
Kgantsi v S
(732/11)
[2012] ZASCA 76
(25/5/12) and
P
N v S
(828/13)
[2014] ZASCA 24
(27/3/14).
[10] It is settled law that failure to
forewarn or to mention the applicability of the minimum sentence is a
fatal irregularity
resulting in an unfair trial in respect of
sentence. The question is, having come to the conclusion that a
misdirection has been
committed, what next should the appeal court
do? The answer is and has always been that the appeal court must
consider the sentence
afresh. What then does considering the sentence
afresh mean?
[11] Certainly it does not mean what the
full court said in para 21 of its judgment referred to in para 7
above. I therefore agree
with counsel for the respondent that the
test applied was incorrect. Considering a sentence afresh must
ineluctably mean, setting
aside of the sentence of the trial court,
inter alia, and conducting an inquiry on sentence as if it had not
been considered before.
In other words, the appeal court must
disabuse itself of what the trial court said in respect of sentence –
it must interrogate
and adjudicate afresh the triad in respect of
sentence as stated in
S v Zinn
1969 (2) SA 537
(A) at 540G-H.
Its task would be to impose a sentence which it thinks is suitable in
the circumstances, without comparing it with
the one imposed by the
trial court. The full court erred in my view by stating that an
appeal court ‘will only interfere
when the sentence imposed …
is vitiated by an irregularity … or when the sentence is
shockingly severe, disturbingly
inappropriate and totally out of
proportion …’. What the full court did was not
considering the sentence afresh but
compared what it had in mind with
what was imposed.
[12] In paragraph 5 above a statement
made by the full court is quoted which gives the impression that a
high court possesses inherent
penal jurisdiction – whereas it
does not – what it possesses is the power, which resides in the
provisions of s 276
of the CPA. This court in
DPP, Western Cape v
Prins
2012 (2) SACR 183
(SCA) para 31 observed that s 276 is ‘the
source of the power of … courts to impose sentences ….
Absent s 276,
neither the magistrates’ courts nor the high
courts would be entitled to impose sentence on people who commit
common law
crimes’.
[13] Counsel for the respondent also
raised the question that the high court does not possess inherent
penal jurisdiction. He submitted
that a trend is developing in their
division to refer to an inherent jurisdiction when an appeal court
has to consider sentence
afresh. He also referred to certain
paragraphs of the appellant’s heads of argument where the
phrase ‘inherent jurisdiction’
is mentioned. I have
already said that the power of an appeal court in respect of
sentencing resides in the provisions of s 276
of the CPA and nowhere
else. It is not only salutary practice but advisable too that
practitioners need to be careful not to loosely
use some of the
expressions or phrases when preparing their arguments. My impression
(shared by my colleagues of course) is that
inherent jurisdiction may
have been loosely used, but in actual fact meaning the ordinary
powers conferred by s 276 of the CPA.
[14] It is not in dispute that the trial
court erred and misdirected itself in respect of sentence as the
appellant had not been
forewarned of the applicability of the Minimum
Sentence Act. It is also not in dispute that the full court erred in
its approach
by using an incorrect test when sentencing the appellant
afresh. These series of misdirections placed this court at large to
consider
the sentence as if it had not been considered before.
[15] I now turn to the facts of this
case to consider and adjudicate on the sentence afresh. The personal
circumstances of the appellant
are that he was 32 years old when the
offences were committed and 34 years old at the time when he was
sentenced. He spent almost
two years awaiting trial while in custody.
He left school at standard 4 and was employed as a taxi driver
earning R300 per week.
He is unmarried and has no minor children. He
is a first offender. It appears from the evidence that he initiated
(master-minded)
the operation to rob and steal Ventures or Toyota
vehicles with an intention to strip the vehicles and sell the parts.
The motivation
of crimes was to make more money – not that he
did not earn at all but because he wanted to augment his wages. The
agreement
with his fellow perpetrators was that if they could not
steal it they would take it by using force – so violence was
envisaged.
[16] The nature of the offences is no
doubt serious. Murder is in my view, the most serious offence as the
deceased cannot be replaced
and no amount of compensation or
punishment of any nature can substitute his life – hence s 11
of the Constitution protects
life by providing that – ‘Everyone
has the right to life’. It is clear from the evidence that
murder was not
pre-planned, however, the appellant possessed a
firearm without bullets as they failed to find some – probably
to use it
to scare their victim. The deceased was armed with a
firearm which he produced upon being attacked, unfortunately one of
the perpetrators
(accused no. 1) kicked his hand and the firearm fell
whereupon he was fatally shot – it is unknown as to who fired
the shot.
The firearm was found on accused no. 1’s lap when
they were apprehended. It is therefore common cause that the murder
must
be regarded as serious, though the respondent’s counsel
argued that murder occurring during a robbery was prevalent in this
country and he referred us to some statistics which indicated an
increase of this type of murders. He sought to attribute a higher
degree of seriousness to which courts ought to respond positively
with heavy sentences – This court in
Director of Public
Prosecutions North Gauteng: Pretoria v Gcwala & others
(295/13)
[2014] ZASCA 44
(31/3/14) observed that ‘People who take
another’s life for financial gain must be severely punished’.
[17] There is no doubt that the
interests of society need to be protected. It is settled law that
courts must send a strong message
that crime will not be tolerated –
however courts should not be expected, by society, to avenge and
apply the rule of an
eye for an eye. The sentence to be imposed ought
to be balanced without over-emphasising one part of the triad over
another. The
objects of punishment – retribution,
rehabilitation and deterrence also ought to be balanced.
[18] It is undisputed that the robbery
with aggravating circumstances was pre-meditated and executed
according to plan – though
murder was not part of the plan.
However it remains serious – hence the legislature deemed it
necessary to prescribe a minimum
sentence. When the deceased was
shot, he was unarmed and posing no threat – taking the vehicle
without shooting him could
have been achieved without any resistance.
[19] The appellant did not at any stage
show remorse, (see
S v Matyityi
2011 (1) SACR 40
(SCA) para
14). The facts and evidence before this court are squarely
incongruous with a non-custodial sentence.
[20] Taking all the factors into
consideration – the aggravating factors far outweigh the
mitigating factors – it is
difficult, I must say, to find any
mitigating factors which can justify a lenient sentence. In
consideration of the cumulative
effect of the sentences, I have
considered to order the sentence on the robbery charge to run
concurrently with the sentence on
the murder charge. The murder and
robbery occurred almost simultaneously during one process of removing
the vehicle.
[21] The following order is made:
1.
The appeal against sentence is upheld
2.
The order of the full court dismissing the
appeal is set aside and replaced with the following:
‘
a)
The appeal against sentence is upheld
b)
The sentences of the trial court are set aside and replaced with the
following:
(i)
Accused number 2 is sentenced to 25 years’ imprisonment on the
charge of murder.
(ii) Accused 2 is
sentenced to 15 years’ imprisonment on the charge of robbery
with aggravating circumstances.
(iii) The whole
sentence on the charge of robbery with aggravating circumstances is
ordered to run concurrently with the 25 years’
imprisonment on
the murder charge.’
3.
The sentences are antedated to 18 November 2004 in terms of
s 282
of
the
Criminal Procedure Act 51 of 1977
.
_______________________
J B Z
SHONGWE
JUDGE
OF APPEAL
Appearances
For the Appellant: N.L Skibi
Instructed
by:
Legal
Aid SA, Mahikeng;
Justice
Centre, Bloemfontein.
For the Respondent: N.J Carpenter
Instructed
by:
The
Director of Public Prosecutions, Mmabatho;
The
Director of Public Prosecutions, Bloemfontein.