About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2010
>>
[2010] ZAWCHC 480
|
|
S v Mgwali and Another (SS24/2010) [2010] ZAWCHC 480 (23 September 2010)
Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
:
SS24/2010
DATE
:
23
SEPTEMBER 2010
In
the matter between:
THE
STATE
and
1.
LINDELA MGWALI
2.
MTUTEZELI TEBHI
SENTENCE
JUDGMENT DELIVERED ON 23 SEPTEMBER 2010
BINNS-WARD,
J:
[1]
The accused have both been convicted of most serious offences. The
gravity with which the offence of robbery with aggravating
circumstances is regarded by society is reflected in the provisions
of the
Criminal Law Amendment Act 105 of 1997
, which, in respect of
first offenders, prescribes a minimum sentence of 15 years'
imprisonment. The robbery in this case involved
the taking of a motor
vehicle. That, by itself, even if aggravating circumstances, as
defined, were otherwise not present, also
carries a 15 year
prescribed minimum sentence. In the current case the 'aggravating
circumstances', as defined in the Criminal
Procedure Act, were
extreme; in that the complainant was not only grievously injured by
an accomplice of the accused immediately
after the commission of the
offence, the consequence of that injury was fatal.
[3]
It is well established through authoritative decisions of the apex
courts in matters such as S
v
Malgas
2001
(1) SACR 469
(SCA),
2001 (2) SA 1222
; S
v
Dodo
[2001] ZACC 16
;
2001
(3) SA 382
(CC) and more recently S
v
Vilakazi
2009
(1) SACR 552
(SCA) that the minimum sentence regime has left the
courts a substantial measure of judicial discretion in the imposition
of sentence
and does not exclude a weighing of the considerations
traditionally relevant to sentence. The legislation does, however,
require
a severe, standardised and consistent response unless there
are truly convincing reasons for a different response.
I
shall accordingly examine the evidence and considerations that weigh
in respect of each of the accused and, in the light of my
conclusions
thereon, determine whether, in the case of either of them, a lesser
sentence than the prescribed minimum might be appropriate.
This is a
useful exercise, because probably the most pertinent of the means of
determining whether a departure from the prescribed
minimum is
justifiable, is to compare the sentence that might notionally be
determined on the traditional approach with the minimum
required by
the legislation. If taking into account the policy considerations
inherent in the legislation, which the courts are
bound to respect
and give effect to, there is a striking disparity between the two,
that is a compelling indicator that substantial
and compelling
reasons exist to depart from the prescribed minimum. If, on the
traditional approach, no disparity exists, then
the question which
could arise in terms of section s 51(3)(a) of the
Criminal Law
Amendment Act does
not arise. .
[4]
The conventional approach, most famously stated in
R
v Zinn
1969
(2) SA 537
(A) is that the three principal considerations taken into
account for the purposes of determining an appropriate sentence are
the
crime, the criminal and the interests of society. These
considerations do not comprise watertight compartments and they do
not
in any manner detract from the individualised consideration of
the case that the determination of sentence enjoins, including,
amongst other matters, the effect of the crime on the victims of the
crime, which, in a case where, as here, a person has been killed,
obviously means the dependants and other persons closely connected to
the deceased.
[5]
Both the accused are young men in their mid-twenties. They are both
from the Eastern Cape originally, but have lived in the
Western Cape
for a number of years. Accused no. 1, who is 25 years old, achieved
matriculation level at high school, although it
would seem at a
relatively advanced age for a school leaver. He has been employed as
a filling station attendant at a number of
filling stations in the
greater Cape Town area in the two years or so prior to his arrest in
connection with the current case in
September last year. It was not
clear why the accused has had three changes of job during this period
with intervals of unemployment
in between them.
[6]
At the time of his arrest he worked as a casual, employed sometimes
for a few days in the week at the Engen filling station
in Belhar. He
had been working there on that basis since June 2009. He used some of
his income to contribute to the maintenance
of his five year old son,
born of an extramarital relationship in the Eastern Cape. He is not
permitted access to this child, who
lives with his mother and
grandparents, because he has not yet compensated, as custom demands,
the parents of the woman in question
for impregnating her out of
wedlock. He is unmarried. His father passed away in 2005 and his
mother lives in the Eastern Cape.
The mother is reported to be sickly
and in need of financial assistance. Now that the accused is unable
to contribute to her care,
she has only a social grant to live on.
His brother died while the accused has been in custody awaiting
trial. He has a sister
who is currently aged 30, who is married and
lives in Mfuleni in Cape Town.
[7]
Accused no. 1 has one previous conviction. He paid an admission of
guilt fine of R100 for theft committed in March 2009. The
sentence
suggests that the matter must have been a minor offence, and I intend
to treat him for sentence purposes as a first offender.
[8]
In evidence the accused expressed his regret at the death of the
deceased and said that he felt very sad about it. During argument
on
sentence, Mr
Raphels
,
the accused's legal representative, clarified that the accused had
meant by this to express remorse for his involvement in the
offence
and that if anyone was at fault in not putting this clearly on record
during the accused's evidence, it was he, that is
Mr
Raphels
.
I indicated that I would approach the question of sentence on the
basis of an acceptance of Mr
Raphels
'
clarification.
[9]
Mr
Raphels
said
that the accused accepted that a lengthy period of effective
imprisonment was inevitable, having regard to the seriousness
of the
offence, which is only realistic, but that he asked that punishment
be tempered with mercy.
[10]
Accused no. 2 is 24 years old. He will turn 25 in just over two
months' time. As mentioned in the conviction judgment, he was
employed at Brights in Bellville as a delivery assistant at the time
of his arrest. He earned the sum of R2 500 per month in that
capacity
and he had been employed there since 2005.
[11]
Accused no. 2 achieved standard five while he was living in the
Eastern Cape and then continued his education after arriving
in Cape
Town, progressing up to standard eight. His parents had asked him to
terminate his education early to obtain employment,
so as to be able
to contribute financially towards the care of a sickly brother. This
brother died in March last year, as in fact
adverted to in the
conviction judgment.
[12]
He is unmarried and does not have any children. He has two siblings,
a brother and a sister, both of them older than he. His
brother is a
captain in the SAPS in Port Shepstone in KwaZulu-Natal and his sister
is married and living in Khayelitsha, Cape Town.
She is unemployed.
He explained that the person referred to in his evidence in chief,
Philiswa Mcitheka, as the sister in whose
backyard he lived in Delft,
is in fact a relation by marriage. His parents are both still alive,
living in Mthatha.
[13]
He also had one comparatively minor previous conviction, being one
for common assault in 2008 for which he was fined R300.
I shall also
treat him as a first offender for the purposes of sentence.
[14]
Ms Masihlela, counsel for accused no. 2, acknowledged the seriousness
of the offences of which accused no. 2 had been convicted,
but
pointed out that he had, until now, been an essentially law abiding
and useful member of society. These factors, together with
his
relative youth, she submitted, justified the imposition of a sentence
directed at recognising and facilitating the accused's
apparent
potential to rehabilitate himself. She submitted that these were
sufficient grounds to depart from the prescribed minimum
sentence.
She submitted further that the sentence in respect of the convictions
on counts 3 and 4 should run concurrently with
that imposed in
respect of count 1.
[15]
Both of the accused have been in custody awaiting trial since
September 2009; that is, for one year. This will, of course,
be taken
into account in the determination of an appropriate sentence.
[16]
I have already commented on the seriousness of the offence of robbery
with aggravating circumstances. There is no doubt that
whatever the
personal circumstances of the accused, the only appropriate sentence
for such an offence is a substantial period of
effective
imprisonment. As soon as this is acknowledged, it must follow that
the peculiar personal circumstances of the accused,
such as the
reliance on them by their greater family for financial support, while
not entirely irrelevant, assume a much diminished
relevance. The
accused's essentially clean records and their apparent potential to
be once again useful and contributing members
of society does,
however, remain a consideration.
[17]
The crime of robbery and the incidence of the perpetration of
criminal violence to innocent members of society is a scourge
in this
country. The vast majority of people from all walks of life and at
every socio-economic level are fed up with the level
of crime that
the citizens of this country have to endure. Delft is one of the
poorer and more economically deprived areas of Cape
Town. The
experience of sitting in this court gives one insight into the fact
that the inhabitants of such areas are the most exposed
to the
oppressive effects of violent crime, while they are the least
equipped to protect themselves against it.
[18]
The victim of the robbery, who lost his life in the context of its
commission in this case, was a family man from outside the
Delft
area. A decent working man, who had been in the employment of the
municipality for 25 years. He lost his life because he went
out of
his way on the evening in question to take a fellow worker home. The
perpetration of crimes like the one in this case make
people afraid
to do what decent people should have no cause to fear. It should not
be a life-risking exercise to drive home a less
advantaged co-worker,
because doing so might involve going into the more deprived parts of
the city. Conduct such as that in which
the accused engaged on the
night of the 11 September 2009 conduces to shrinking people's freedom
to go out and move freely about
and interact with a broader
cross-section of society. The crime itself was aggravated by the
wanton, senseless and deliberately
cruel assault by shooting at the
deceased after he had already been dispossessed of his car. The
cowardly act inherent in the assault
by four men on a defenceless and
vulnerable middle aged man, who was alone, was compounded by an act
of despicable cynicism and
cruelty.
[19]
The actions of the accused have brought tragedy and sorrow into the
lives of Mrs Yvonne Curtis and her family. It is likely
that they
will live with the pain of what you contributed to happening that
night for the rest of their lives. It should also be
remembered that
the deceased, who is not here to speak to his experience in the
robbery, must have endured a period of absolute
terror before he was
shot. His end was a lingering one. He underwent the further trauma of
surgery and intubation. It is apparent,
from the oedematous condition
of his body at the post-mortem and the nature of his injuries and the
surgical intervention, that
any conscious moments he may have had in
the two weeks before he died would probably have been a painful and
extremely uncomfortable
experience. The expressions of remorse and
the prospects of reform that came to the fore during the post
conviction and pre-sentence
proceedings would have carried so much
more weight had the accused acknowledged their wrongfulness at an
earlier stage. This does
not mean that these factors will be
overlooked; it simply means that due cognisance will be taken of the
context in which they
were brought forward.
[20]
I must, however, record that by his evident reluctance to get into
the vehicle after the shot had been fired, accused no. 1
showed
perhaps a measure of surprise that his accomplices would resort to
such extremes and an indication of distinguishing moral
discomfort
about it. This is a mitigating feature I shall take into account and
which will explain a small differentiation between
the sentence to be
imposed on him with that to be imposed on accused no. 2.
[21]
The minimum sentence legislation is an expression of what the elected
legislative representatives of the nation consider to
be in the
interests of society. The statute is an unambiguous indication that
the community requires an appropriate emphasis on
retributive justice
as an element of sentencing in the currently prevailing circumstances
throughout the country. It is the duty
of the courts to give effect
to these considerations. Respect for the judicial system cannot be
expected if the courts are seen
to fail in this duty.
[22]
It is no pleasant task to send anyone to prison. It is particularly
painful when those to be sentenced are young persons with
the
potential to make a useful way in life, as the two accused appear to
be. That said, the accused have no right or entitlement
to be treated
with maudlin sympathy. It is important, however, in my opinion, that
they should know that if they are able to behave
in an exemplary
fashion while in prison serving their sentence, the executive
authority can take this into account in a decision
to grant them
parole before the completion of their respective terms of
imprisonment.
[23]
I am satisfied that in the case of each of the accused a sentence of
not less than 15 years' imprisonment is in any event appropriate,
even if the requirements of the
Criminal Law Amendment Act did
not
exist. The mitigating features that I have mentioned are, therefore,
considered insufficient in the totality of the case to
warrant the
imposition of a lesser sentence than the prescribed minimum.
[24]
I am of the view that on count 1, accused no. 1 deserves a sentence
of 15 years' imprisonment and accused no. 2 one of 16 years'
imprisonment.
[25]
Accused no. 2 must also be sentenced in respect of counts 3
and
4. I consider that it is appropriate for these counts to be taken as
one for the purposes of sentence. The unlawful possession
of
firearms and ammunition is a serious offence. The abundance of
unlicensed and unlawfully possessed firearms in the country
is
notorious and undoubtedly a contributor to the high incidence of
serious violent crime. The obtaining of these weapons by
robbery and
theft of firearms from members of the police force is a widely
documented and worrying phenomenon. I regard it as
an aggravating
factor that the firearm in issue in this case was one that was taken
from a police reservist. By taking that factor
into account, I
should not be misunderstood to be misdirecting myself into imposing
a surrogate punishment on the accused for
the theft or robbery
concerned, in which, for all I know, he may have had no part. I am
merely pointing out that the unlawful
possession of a firearm stolen
from the security organs of the State, is a more serious incidence
of the statutory offence.
[26]
In my view a sentence of seven years' imprisonment in respect of the
conviction on counts 3 and 4, taken as one for sentence,
is
appropriate. Taking into account the cumulative effect of the
sentences to be imposed on accused no. 2, I shall direct that
five
years of that sentence shall be served concurrently with the
sentence to be imposed on him in respect of count 1.
[27]
The accused are advised that as a consequence of their convictions,
they are regarded, for the purposes of the
Firearms Control Act 60
of 2000
, to be unfit to possess a firearm. The Registrar of the
court is directed, in discharge of the Court's obligation in terms
of
s 103(3)
of the
Firearms Control Act, to
inform the National
Commissioner of Police, in his capacity of Registrar of Firearms, of
the convictions of accused no. 1 and
2. To the extent necessary or
required, the issue of a search and seizure order in terms of
s
103(4)
is authorised.
[28]
In the result:
1.
Accused no. 1 is sentenced to a term of 15 (FIFTEEN) years'
imprisonment on count 1.
2.
Accused no. 2 is sentenced to a term of 16 (SIXTEEN) years'
imprisonment on count 1.
3.
Counts 3 and 4 are taken as one for the purpose of sentence. Accused
no 2 is sentenced to a term of 7 (SEVEN) years' imprisonment
in
respect of those counts. It is directed that five years of the said
seven years sentence is to be served concurrently with
the period of
16 years imposed in respect of count 1, giving an effective sentence
of 18 (EIGHTEEN) years' imprisonment altogether.
A.
G. BINNS-WARD, J
Judge
of the High Court