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[2010] ZAWCHC 526
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Mzamo v S (A252/2010) [2010] ZAWCHC 526 (5 November 2010)
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
CASE NUMBER: A252/2010
DATE:
5 NOVEMBER 2010
In
the matter between:
SIPHIWO
MZAMO
…...........................................................................
Appellant
and
THE
STATE
…................................................................................
Respondent
JUDGMENT
DAVIS,
J
:
The appellant was a
police inspector attached to the Parow Police Station in the Western
Cape. He had been in employed for almost
17 years in the services of
the South African Police Service. On 21 October 2008 he was charged
in the Regional Court with a
range of offences, including:
1. Defeating the
administration of justice in that he unlawfully released suspects
who were found in possession of stolen goods.
2.
Corruption,
in that he contravened provisions of the
Combating of Corrupt
Activities Act of 2004 and that he
gave an amount of R1 000,00 to
a colleague to influence
the latter so that he would not say
anything or report the
release of the suspects who had been found
in
possession with stolen goods.
3. Corruption, in that
he contravened the act (The Combating and Corrupt Activities Act),
in that he offered to accept R50 000,00
from Sido Amaudo Adamo with
the intended purpose that the appellant should not arrest Adamo for
unlawfully bringing an amount
of US Dollars 16 000,000 into South
Africa.
4. Corruption in that he
contravened certain provisions of the act, in thai he gave a
colleague an amount of R25 000,00 so that
the colleague should not
say anything about the incident relating to Adamo.
5. Fraud or theft by
false pretences, in that he took the $16 000,00 from Adamo and
pretended that he would keep it at the police
station for future
evidence, whereas he intended to keep it for his own benefit.
6. Defeating the ends of
justice in that he unlawfully released Adamo.
He pleaded guilty to all
six counts and was convicted in terms of the plea and senlence as
follows: Count 1, six months imprisonment.
Count 2, 12 months
imprisonment. Count 3, three years imprisonment. Count 4, two years
imprisonment. Count 5, three years imprisonment.
Count 6, six months
imprisonment. In terms of
section 280(2)
of the
Criminal Procedure
Act 51 of 1977
, the magistrate ordered that the sentences in respect
of counts 1, 2, 3 and 6 should run concurrently with those imposed
in terms
of counts 4 and 5. As a result appellant was imprisoned for
an effective five years. He now appeals against the sentence had
been imposed.
It
has been submitted on his behalf by Mr
Stamper
that
the sentence was shockingly excessive. In this particular regard,
reference was made to three reports placed before the Court
from
experts who are in agreement that a non-custodial sentence (in the
form of correctional supervision) would be the appropriate
sentence
in the circumstances, given the nature of the crime, the offender
and the interest of society at large. The most important
report, in
my view, was a psychological evaluation prepared by Mr Martin
Yodaiken, a clinical psychologist who evaluated the
appellant and
emphasised in particular that he had been an abused and a neglected
child, exhibited a high degree of anxiety,
as well as signs of
clinical depression. Mr Yoclaiken also emphasised the stabilising
influence in his life being the South African
Police Service, that
is apart from his wife and further that the appellant had been
desperately affected by virtue of the fact
that the South African
Police Service had failed to honour an agreement to send him to
Sudan.
In summary Mr Yodaiken
concluded as follows:
"This crime,
therefore, needs to be seen from a psychological point of view as a
complex sequence of causality commencing
with the vulnerabilities
engendered in Mr Mzamo by his background experiences; the
stabilisation of his life, in terms of his
relationship with the
South African Police Service; his relationship with his wife and the
enormity of the impact on his personality
and shift in meaning of
his relationship with his superiors, resulting from the rejection of
his deployment, all of which must
be seen in the light of his
emotional response when confronted by the opportunity to earn some
money illicitly. It is unlikely,
given Mr Mzamo's personality
structure, that he would have masterminded the crime. In fact
according to him it was the sergeant
who was on duty with him ...
who suggested that they should take the money. While it is
impossible to test the veracity of the
submission, it would
certainly be in keeping with Mr Mzamo's deferential personality to
be influenced under the processes enumerated
above by a
subordinate."
Mr Yodaiken then made
the following recommendation:
"A personality such
as Mr Mzamo's, is unlikely to benefit from a custodial sentence. It
is likely that he will become deferential
to the prison and prison
authorities and is likely to comply with any authority figure
irrespective. Consequently he is unlikely
to experience
rehabilitation in prison and may, in fact, identify with a group of
people likely to give him the most affirmation
which in prison are
the prisoners."
Ms Jaylene Germane, a
social worker, came to a similar conclusion in a pre-sentence report
which has been prepared for the benefit
of the Court. Even though
she had conceded in her report:
"It needs to be
mentioned that the crime committed is serious and the government and
community would expect from the Court
to execute a harsher sentence
to the alleged perpetrators. The accused is a first offender and
realised he musl use his power
as a police officer official to his
own benefit."
A
striking feature of these reports given their purpose, is the
emphasis placed upon the offender and the detrimental effects
of
prison. That appears to me is now a relatively trite conclusion in
the light of the criminal logical literature which indicates
that
prison very rarely, if ever, works to rehabilitate an offender. See
the seminal study by Robert Martinson et al 1974
Public
Interest
.
There is a more positive study on prisons and rehabilitation by Paul
Gendreau and Robert Ross 1987
Justice
Quarterly
(Vol
4). In turn this needs to be read with the more caustious study by
the University of Maryland's Department of Criminology
and Criminal
Justice: 'What works: What doesn't and what's promising' (1997). It
is thus dangerous to labour under an optimistic
misapprehension
about the potential positive effect of prison. See
S
v Nkomo
2007(2)
SACR 198 (SCA) at para 21 where an unqualified belief in
rehabilitation in prison is expressed which is then employed,
at
least in part, to deviate from the prescribed minimum sentence.
The offender however is
only one aspect which requires
consideration in
assessing sentence. Were the offender to be the only consideration
to be taken into account by the Court, the
argument employed by Mr
Yodaiken to the effect that prison will have a detrimental affect on
the offender, could all too often
be employed to justify that no
term of imprisonment should be imposed.
There are other factors
which need to be considered in the imposition of sentence. In my
view, these factors were considered in
the magistrate's decision to
sentence the appellant to a direct term of imprisonment. These
include the nature of the crime,
the interests of society and, where
relevant, the interests of the victim. The so-called triad, which is
generally employed,
does not always encapsulate all the
considerations regarding the optimal sentence because it omits the
victim from consideration.
Very often it is the victim's interests
that need to be taken into account with considerable care. That may
be less the case
here, but the interests of society and the nature
of the offence are factors which weighed heavily with the magistrate
and rightly
so.
Would
a non- carceral alternative be a better option in this case?
Recently, a full bench of this Division, in a judgment prepared
by
Bozalek
,
J in
S
v GL
2010(2)
SACR 488 (WCC) at para 36 said the following about an argument
regarding a noncustodial sentence of correction supervision.
Given that the thrust of the argument before us was to similar
effect, the passage is highly relevant:
"I remain aware
that a non-custodial sentence of correctional supervision, in terms
of
section 276(1)(a)
is an appreciable, even a severe sentence... In
assessing an appropriate sentence, it is necessary to have regard,
not only to
the main purposes of punishment, namely deterrence,
prevention, reformation and retribution, but also to the individual
concerned,
the circumstances, the crime committed and society's
interest, whilst at the same time blending sentence with a measure
of mercy.
No court of appeal can alter a sentence simply because it
might have imposed a different sentence. In order to intervene, it
must be found that the sentencing official failed to exercise
his/her discretion properly through a misdirection or irregularity
relating to all the facts or, alternatively, imposed a sentence so
different to that which the court of appeal would have imposed,
that
it can be said that is disturbingly inappropriate or that a sense of
shock is caused. Taking these principles and all the
relevant
circumstances into account, I am not persuaded that the sentence
imposed by the magistrate, although substantial, is
disturbingly
inappropriate or evokes a sense of shock.'
The
facts in G_L are, of course, somewhat different to the present case,
but do have some similarities in terms of the consequences
of the
argument advanced to us. In that case the accused was coni/icted of
culpable homicide. As a result small children, at
the time 14 months
old twins, were left with only one parent, that is the convicted
person. The question which then arose was
whether, given the
interests of the children and the fact that the parent in that case
was a first offender, a sentence of a
non-custodial nature should
have been imposed, particularly bearing in mind the approach adopted
by the Constitutional Court
to these questions in
S
v
M
2007(2) SACR 539 (CC). The full bench decided to the contrary.
In my view the facts of
GJ_ were far more appropriate, than is this case for the imposition
of a non-custodial approach, given
the devastating effect of a
prison sentence on young children who, on the evidence, had bonded
with their father and were now
in a position where they would have
no parent to look after them due to the lengthy prison sentence
which had been imposed.
In
the present case, some of these arguments resonated in the
submissions made by counsel on behalf of the appellant. But in this
case, there is a wife and a mother who will care for the children
and, in such circumstances, given the approach adopted by the
Full
Bench in
S
v GL
,
it is difficult to conclude that the magistrate's approach in this
case constituted any form of misdirection.
I should, however, go
further to say the following regarding the nature of the offence
Corruption is a blight on society. It distorts
the allocation of
precious public resources. It subverts delivery of essential
services to the public, in particular to those
most in need and,
within the South African context generally, to those who are not
merely historically but presently disadvantaged.
It undermines key
components of the State which are essential to the transformation of
society. Viewed accordingly, acts of corruption
by a public
official, particularly a police officer, subverts the rule of law
and thus imperils constitutional democracy. A corrupt
police force
guts the heart of the constitutional promise of democracy as
enshrined within the Constitution.
These offences, not one,
but six, must therefore be read in the most serious light. Given the
nature of these crimes, it cannot,
on any plausible basis, in my
view, be said that the magistrate misdirected himself in preferring
the custodial option to the
recommendations of Mr Yodaiken and Ms
Germane. In my view, therefore, the appeal should be dismissed and
the sentence should
be confirmed.
CLOETE,
AJ
:
I agree.
CLOETE, AJ
DAVIS,
J
:
It is therefore so ordered.
DAVIS,
J