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[2010] ZAWCHC 547
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S v Alfonso (SS117/2008) [2010] ZAWCHC 547 (11 November 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER: SS117/2008
DATE: 11
NOVEMBER 2010
In
the matter between:
THE
STATE
and
DINISIO
DIAS ALFONSO
SENTENCE
STEYN.
J
:
The
accused, Dinisio Dias Alfonso, was found guilty of robbery with
aggravating circumstances and of murder on 3 November 2010.
Today
the Court has to decide on an appropriate sentence. The accused
elected not to testify and no witnesses were called in
mitigation of
sentence, His counsel put certain facts to Court to consider with
regard to sentence.
The
task of sentencing someone who has been found guilty of offences as
serious as those of which the accused has been found guilty
of, is a
serious responsibility. Society and the legislature demand that
those who transgressed its required norms are appropriately
punished
by those to whom that responsibility has been deputed. The purposes
of sentencing have been identified as being deterrence,
prevention,
rehabilitation and retribution. Those objects are sought to be
achieved by applying the principal criteria that have
been evolved
by our courts over a number of decades, namely the personal
circumstances of the accused, the seriousness of the
offences of
which an accused has been found guilty and the interests of society.
Courts are furthermore required, when applying
those criteria in a
balanced manner, to also introduce an element of mercy.
It
is difficult to define the interests of society. Courts are obliged
to impose sentences that engender respect of the criminal
justice
system, failing which members of the public might be tempted to take
the law into their own hands, as has already manifested
itself on a
number of occasions in areas of this Court's jurisdiction, but
whilst the public cannot be seen to dictate what sentences
courts
should impose, courts should be astute not to disregard the
society's needs.
It
is apparent from the trials that served before this Court, including
criminal appeals and automatic reviews, that crimes involving
violence against those not always capable of
protecting
themselves, even in the sanctity of their homes, are assuming
epidemic proportions in this Court's area of jurisdiction
and for
that reason requires the imposition of severe sentences in order to
discourage a continuation of antisocial conduct of
that kind.
The
legislature has prescribed a minimum sentencing regime that takes
into consideration the relevant elements relating to the
imposition
of sentences, to make provision for consistency in sentencing. The
provision of section 51(1) of Act 105 of 1997 of
the Criminal Law
Amendment Act (the Act), relating to minimum sentence are applicable
to both of the charges that the accused
has been found guilty of.
Section 51(1) provides that the Court shall sentence a person
convicted of murder, to imprisonment
for life when the death of the
victim was caused by the accused in committing or attempting to
commit robbery with aggravating
circumstances as defined in the
Criminal Procedure Act, or the offence was committed by a person
acting in the execution or furtherance
of a common purpose or
conspiracy.
Section
51(2)(a) of the Act, Part
II
of
Schedule 2, prescribes that the minimum sentence for a first
offender is imprisonment for a period of not less than 15 years
when
robbery is committed where there are aggravating
circumstances or involving the theft of a motor vehicle. The
accused was informed at the commencement of the trial that in the
event of conviction on the charges, the above minimum sentences
are
prescribed, unless substantial and compelling circumstances are
found to be present. The Court is, therefore, faced with
the
question whether substantial and compelling circumstances justify a
departure from the prescribed sentences laid down by
the
legislature.
The
following factors considered cumulatively, have been submitted by
counsel for the defence to constitute such substantial and
compelling circumstances. I first deal with the accused's personal
circumstances. The accused is a first offender. The accused
was 25
years of age when the crimes were committed. The accused has a
dysfunctional background. He grew up without the presence
of a
father and left school while in Grade 6. The accused, who is
unmarried, has three young children with one woman with whom
they
stay. The last child was born while he was in custody. He has
another young child with another woman in Pretoria. It is
not clear
if the child stays with the mother.
It
was the testimony of the accused that he had a girlfriend at the
time of the commission of the offences. He was not staying
with the
pregnant mother of his young children and informed the Court that he
was a "playboy". Counsel argued that
accused was paying
maintenance for his children prior to his arrest, but there is no
persuasive evidence in this regard. Accused
did not impress the
Court as a family man. It seems highly unlikely that he paid
maintenance to his children, at least not on
a regular basis. It was
argued that the accused either had gainful employment or has the
potential to be gainfully employed.
It appeared possible during the
testimony of the accused, that he may have the potential of gainful
employment, since he has
received training that he could put to use
to earn an income. However, it seems that he was not gainfully
employed at the time
when the crimes were committed, instead he was
consorting with his good friend Gito, a wanted criminal.
As
regards further factors to be considered by the Court in weighing up
the possible existence of substantial and compelling circumstances,
it was submitted by the counsel of the accused that the Court should
take into account that the accused had been influenced by
the
intoxicating effects of alcohol at the relevant time and that the
accused was not found guilty of
dolus
directus,
but
the lesser form of intent, namely
dolus
eventualis.
The
Court should accept that the accused was not the main perpetrator
and in effect that he was manipulated into committing the
crimes by
his friend Gito. The accused co-operated with the police after he
was apprehended by making a statement and pointing
out to the
investigating officer, and making a further extensive statement to
Colonel Ngesi, which contributed to the crime being
solved. The
facts that the crimes were not premeditated should be considered as
a mitigating factor. The accused had remorse
for his deed, which was
evident from his evidence during the trial. The accused has been in
custody for three years and eight
months.
The
accused may have been 25 years of age at the time of the commission
of the offence, but although he may have been relatively
young, the
manner in which he conducted himself in the court, left no room for
any belief that he was immature. In addition he
had already fathered
three children and a fourth child was expected. Youthfulness, which
may serve as a mitigating factor in
the assessment of moral
culpability, is not at the forefront in this case.
There
is nothing in the family or education background of the accused that
leads the Court to a particularly sympathetic view
towards him. As
regards his education, or lack thereof, it was the Court's view that
the accused is very intelligent. He, himself,
testified about his
eagerness to learn. From his statement to Colonel Ngesi, it can be
concluded that he has mastered several
languages. There is no
indication that the
accused
suffered serious economic deprivation. His accommodation was
adequate. He was able to travel around South African and
possibly
Mozambique. He afforded sophisticated electrical equipment and the
use of a cell phone. He socialised with Gito and
his wealthy
friends. It appears that the accused was not in formal employment,
but he has been given the training and opportunity
to explore a
career in the arts. Considering his hitherto unblemished record, his
age and training, there may be a possibility
that the accused may be
rehabilitated, if he is able to avoid consorting with criminally
inclined friends.
The
accused pleaded not guilty to the charges of which he has been found
guilty and as he was entitled to do, persisted with his
claim of
innocence until the finalisation of the trial. By doing so, he
deprived himself of the opportunity of expressing genuine
remorse, a
weighty factor in determination what an appropriate sentence should
be. Instead of apologising for the death of the
deceased, the
accused complained at one stage that everybody was concerned with
the deceased and did not give enough regard to
his feelings.
As
regards the accused's involvement or role in the crimes he has been
convicted of, it has been suggested that he played a lesser
role
which, according to his counsel, could be concluded,
inter
alia,
from
the existence of several fingerprints of Gito's on the scene of the
crime, compared to the one fingerprint of the accused.
However,
considering the extensive injuries of the deceased, the Court found
that both the accused and Gito inflicted these injuries.
It would be
speculation to submit that one person played a more extensive part
in the murder than the other. However, Gito is
a known criminal,
while the accused has an unblemished record. It was his statement to
Colonel Ngesi that he tried to staunch
the flow of blood of the
deceased at one stage and although this testimony seems unlikely, it
may be possible.
Although
the Court is suspicious in this regard, the Court was not able to
find conclusively that the crimes of which the accused
has been
convicted, were premeditated. The prosecution argued that there are
no substantial and compelling circumstances that
justify a departure
from the minimum prescribed sentence. In a well reasoned and
comprehensive argument, it was argued by the
State that substantial
aggravating factors exist. The seriousness of the offences of which
the accused has been guilty of, are
self-evident.
The
deceased, a very security conscious person, allowed the accused and
his friend, who apparently was friendly with the deceased,
into his
house, his haven, for an evening of socialising and possibly sexual
intercourse. It appears from the evidence presented,
that the
deceased was led like a lamb to slaughter. He was put at ease and
when he was undressed and at his most vulnerable,
he was attacked,
tortured, battered, stabbed and death came gradually, caused by a
ligature around his neck that stopped his
flow of oxygen.
The
killing was completely unnecessary, as the deceased, a small person
according to the
post-mortem
report,
was no match for the two attackers and had been tied up to prevent
escape. The only reason for killing him must have been
to prevent
identification of his attackers. The motive for the attack and
killing was pure greed. The deceased was tortured,
probably for the
PIN numbers to his cards and to find out the whereabouts of a safe
that he did not have. He was left trussed
up and extensively
injured, with a substantial ligature around his neck, lying facedown
and bleeding on the carpet of his bedroom.
He was shown no mercy,
despite evidence of the accused that he pleaded and cried.
The
final insult was that the accused and his friend then removed some
valuable items from the home of the deceased. Accused took
his cell
phone and accompanied by Gito. drove away in his car. The
car was sold at the first possible opportunity with
such speed,
that the State argued that the prompt sale of the car indicates the
overwhelming probability that the car had been
pre-ordered and the
crimes, therefore, premeditated. Although the Court is highly
suspicious in this regard, I will be charitable
to the accused by
finding that there is no proof beyond reasonable doubt that this
scenario is correct or that he was involved
in the sale of the
vehicle. According to the accused's statement to Colonel Ngesi, Gito
boasted about selling the vehicle and
had the money to show for his
actions.
As
regards the co-operation by the accused with the police as a factor
to consider by the Court, it was argued by the State that
the
accused only co-operated with the police when he was informed that
it had been established that he had used the cell phone
of the
deceased, which was overwhelming evidence of his guilt. The fact
that he denied his co-operation with the police in court,
leading to
two long trials-within-a-trial, neutralises any advantage that he
may have enjoyed as a result of his co-operation.
The
accused's allegations to Colonel Ngesi that he was reluctantly
persuaded to remove items from the house of the deceased were
rejected, as were his allegations that he received the cell phone
of the deceased from Gito. The actions of the accused,
following
the murder of the deceased, indicate that he was a co-perpetrator
with Gito in every material respect in regard to
the crimes of
murder and of robbery.
I
will now deal with some principles set out in decisions that are
followed by this Court. The principles set out in
S
v Malgas
2001(1)
SACR 469 (SCA) which have been followed in a long line of cases,
have been described as a good example for a breakdown
of the leading
principles that are enduring and not complicated, setting out how
the sentencing regime should be approached and
in particular how the
inquiry into substantial and compelling circumstances is to be
conducted by a Court.
Malgas
has emphasised that the enactment of the minimum sentencing
legislation is an indication that a Court has to approach the
question
of sentencing, conscious of the fact that the minimum
sentence has been ordained as the sentence which ordinarily should
be imposed
unless substantial and compelling circumstances are found
to be present. I quote from paragraph 9 of the
Malgas
judgment:
"The
specified sentences are not to be departed from lightly and for
flimsy reasons which could not withstand scrutiny. Speculative
hypothesis favourable to the offender, maudlin sympathy, aversion to
imprisoning first offenders, personal doubts as to the efficacy
of
the policy implicit in the amending legislation and like
considerations, were equally obviously not intended to qualify as
substantial and compelling circumstances, nor were marginal
differences in the personal circumstances, or degrees of
participation
of co-offenders, which, but for the provisions, might
have justified differentiating between them. But for the rest, I can
see
no warrant for deducing that the legislature intended the Court
to exclude from consideration, as it were, any or all of the many
factors traditionally and rightly taken into account by courts when
sentencing offenders."
In
S
v Vuyisile Matyityi
,
an as yet unreported decision, case number 695/09 of the Supreme
Court of Appeal dated 30 September 2010,
Ponnan
,
JA, found as follows in paragraph 23 of the judgment:
"Despite
certain limited successes, there has been no real let up in the
crime pandemic that engulfs our country. The situation
continues to
be alarming. It follows that, to borrow from
Malgas
,
it still is "no longer business as usual", and yet one
notices all too frequently a willingness on the part of sentencing
courts to deviate from the minimum sentences prescribed
by the legislature for the flimsiest of reasons - reasons
as here
that do not survive scrutiny. As Malgas makes plain, courts have a
duty, despite any personal doubts about the efficacy
of the policy
or personal aversion to it, to implement those sentences. Our courts
derive their power from the Constitution and
like other arms of
State, owe their fealty to it. Our constitutional order can hardly
survive if courts fail to properly patrol
the boundaries of their
own power by showing due deference to the legitimate domains of
power and the other arms of State. Here
parliament has spoken, it
has ordained minimum sentences for certain specified offences.
Courts are obliged to impose those sentences
unless there are truly
convincing reasons for departing from them. Courts are not free to
subvert the will of the legislature
by resort to vague, ill-defined
concepts such as "relative youthfulness" or other equally
vague and ill-founded hypotheses
that appear to fit the particular
sentencing officer's personal notion of fairness. Predictable
outcomes, not outcomes based
on the whim of an individual judicial
officer, is foundational to the rule of law which lies at the heart
of our constitutional
order."
The
"determinative test", as framed in
Malgas
and endorsed in later reported decisions, is that it is incumbent
upon a Court in every case before imposing a prescribed sentence
to
assess upon a consideration of all the circumstances of a particular
case, whether or not the prescribed sentence is indeed
proportionate
to the particular offence. Only if it is disproportionate, is the
Court free to impose a lesser sentence, otherwise
not.
In
the proportionality/disproportionality inquiry in the instant case,
regard should be had to the facts that I have set out above.
In the
favour of the accused is the fact that he was a first offender. He
has spent more than three and half years in custody.
He did partake
of wine prior to the commission of the offence, although there is
scant indication that his actions were infected
by intoxication. It
is correct that the Court was not able to find conclusively that the
murder was premeditated. It is true
that some of the stolen items
were retrieved after the accused had pointed out these items. As far
as the BMW of the deceased
is concerned, the accused has
consistently been vague and uncooperative, which does not count in
his favour. However, it is possible
that Gito may have been the main
perpetrator with regard to the theft of the vehicle and the
subsequent sale thereof.
The
Court, in fairness to the accused, based on a lack of conclusive
evidence, found him guilty of murder on the basis of
dolus
eventualis.
However,
the carelessness and the recklessness of the accused with regard to
death ensuing, was apparent. The main aggravating
factor in this
matter is the remorseless, unscrupulous, brutal attack of a harmless
older person, in the sanctity of his own
home, after he had
befriended the accused and shared his food and wine with him.
The
imposition of a life sentence is the ultimate penalty that the Court
can impose. Despite the fact that under certain circumstances
it may
be the prescribed minimum sentence which should not be avoided for
flimsy reasons, it should also not be imposed lightly.
In my view
the cumulative factors enumerated above, that are in favour of the
accused, marginally outweigh the aggravating factors
and tip the
scales of justice in favour of the accused to the extent that I am
able to find the existence of substantial and
compelling
circumstances that allow me to impose a lesser sentence than the
prescribed minimum sentence in respect of the crimes
committed.
I
find that the imposition of the prescribed minimum sentences in this
matter is disproportionate to the sentence that I would
have imposed
had the minimum sentence legislation not been passed and that it
would be unjust, should the prescribed minimum
sentences be imposed.
I, therefore, impose the following sentences:
1.
In
respect of the first charge, robbery with aggravating
circumstances,
12
(TWELVE) YEARS IMPRISONMENT
In
respect of the second charge, murder,
27
(TWENTY SEVEN) YEARS IMPRISONMENT
In
terms of the provisions of section 282 of Act 51 of 1977, it is
ORDERED
THAT THE SENTENCES ON CHARGES 1 AND 2 WILL RUN CONCURRENTLY
.
The
State has requested that the accused be declared unfit to possess a
firearm in terms of section 103 of Act 60 of 2000 and
it is so
ordered.
STEYN.
J