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[2010] ZAWCHC 492
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Vokwana v S (A262/2010) [2010] ZAWCHC 492 (15 October 2010)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE HIGH
COURT. CAPE TOWN)
CASE
NO
:
A262/2010
DATE: 15 OCTOBER 2010
In the matter between:
LUTHONELO
VOKWANA
…....................................................................
Appellant
and
THE
STATE
…......................................................................................
Respondent
JU
D G M E N T
GRIESEL,
J
:
The appellant appeared
in the Regional Court sitting at Bellville on charges of murder and
assault with intent to do grievous
bodily harm. He was legally
represented and pleaded not guilty to the charge of murder, but
guilty to assault GBH. He was eventually
convicted as charged on
both counts and was thereupon sentenced to ten years imprisonment on
the murder charge and eighteen months
on the assault charge, both
sentences to run concurrently.
With leave of this Court
granted on petition, the appellant has noted an appeal against his
sentence.
The
events giving rise to the prosecution took place at Special
Quarters, Langa, on Boxing Day 26 December 2006. On the facts
stated
in the appellant's written plea explanation in terms of section
112(2) of the Criminal Procedure Act, accepted by the
State, the
appellant and some of his friends were listening to music and having
some drinks, as it was put, on the evening in
question. A scuffle
ensued involving the appellant's ex-girlfriend. It ended up with the
appellant producing a knife and stabbing
the complainant, one
Malgas, once in the back. He also stabbed the deceased, according to
him, only twice, again once in the
back. According to the
post
mortem
report,
the deceased died of multiple stab wounds. The version of the
appellant, namely, that he did not cause the death of the
deceased
was rightly rejected by the trial court.
After
conviction, the appellant's attorney addressed the Court in
mitigation of sentence and pointed out that the appellant had
no
previous convictions. She also told the Court that the appellant was
18 years old at that stage, having turned 17 a couple
of days prior
to the fatal incident. He was still living with his parents and was
in Grade 10 at school. He was the father of
a 1
1
/2
year
old son.
The appellant's attorney
suggested, as part of her address in mitigation of sentence, that a
correctional report be obtained,
alternatively, a sentence of
imprisonment in terms of section
276(1 )(i) of the
Criminal Procedure Act be considered.
The magistrate, however,
would have nothing of this, stating emphatically that the offence
was far too serious to consider this
option.
In my view, the learned
magistrate misdirected himself in sentencing the appellant to a
lengthy period of imprisonment without
the benefit of any
pre-sentence report. The mere fact that the magistrate might have
thought that the matter was too serious
to allow for a sentence of
correctional supervision, does not mean that the court should not
call for a pre-sentence report.
As
has been emphasised by our courts on innumerable occasions, no
juvenile offender should be imprisoned without proper pre-sentence
reports and evidence regarding his personality, personal
circumstances and background. I refer in this regard, by way of
example,
to
S
v Petersen and Another
2001(1)
SACR 16 (SCA) para [20] and the other cases cited therein. See also
S S Terblanche,
Guide
to Sentencing in South Africa
.
2
nd
Edition
page 320.
The
purpose of the pre-sentence report is to individualise sentence, not
so that a light sentence is imposed but to ensure that
a sentence is
found that is fair both to the young offender and to society or, as
it was put by Steyn J in this division in S
v
Adams
1971(4)
SA 125 (C) at 127F-G -
"...sodat vonnis in
die lig en nie in die duisternis opgele sal word nie."
In the present instance
the Court had the barest minimum before it for purposes of sentence.
In my view, the circumstances called
out for further information
before sentence was imposed. In the circumstances, I am of the view
that the matter should be remitted
to the trial court for
reconsideration of sentence after having considered a presentence
report and such other evidence
relating to sentence as the parties
may wish to place before the court or as the court may wish to
obtain.
It should be clearly
understood that I am not suggesting that imprisonment is an
inappropriate sentence or that a period of ten
years is excessive in
the circumstances of this case. What I do wish to emphasise,
however, is that there was insufficient evidence
before the court so
as to determine an appropriate sentence; hence there is insufficient
evidence before this court to enable
it properly to consider this
appeal.
In the circumstances, I
would issue the following order:
1. The sentences imposed
by the trial court are set aside.
2. The matter is
remitted to the trial court for reconsideration of the question of
sentence after consideration of a presentence
report and such other
evidence relating to sentence as the parties may wish to place
before court or as the court may wish to
obtain.
Pending finalisation of
this matter, the appellant is to remain in custody.
ROGERS,
AJ. I agree
ROGERS,
AJ
GRIESEL. J: It is so
ordered.
GRIESEL.
J