About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2011
>>
[2011] ZAGPPHC 207
|
|
Makena v S (A723/08) [2011] ZAGPPHC 207; 2011 (2) SACR 294 (GNP) (4 February 2011)
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE.NO.:,A723/08
DATE:04/02/2011
In
the matter between:
KOBANE
CAIPHUS
MAKENA
................................................................................
APPELLANT
And
THE
STATE
........................................................................................................
RESPONDENT
JUDGMENT
WEBSTER
J
[1]
The appellant is before a full bench of this court on appeal against
a sentence of a single judge, sitting with assessors, leave
to do so
having been granted by the Supreme Court of Appeal.
[2]
The appellant, having pleaded guilty, was convicted of the following
crimes, viz:
I.)
Murder;
II.)
Robbery; and
III.)
Housebreaking with intent to steal and theft.
[3]
He was sentenced on those corresponding counts as follows: I.) Forty
(40) years' imprisonment; II.) Fifteen (15) years' imprisonment;
and
III.) Ten (10) years' imprisonment.
It
was ordered that the sentences on the counts of murder and robbery
run concurrently. The cumulative effective sentence is ~ therefore
fifty (50) years' imprisonment. The trial court further recommended
that the appellant be only considered for parole after serving
thirty
years of the term of imprisonment.
[4]
It is now trite that the imposition of sentence is pre-eminently a
matter for the trial court. A court of appeal will not interfere
with
a sentence unless it is satisfied that the trial court failed to
exercise the discretion bestowed upon it in a "proper
and
reasonable" manner. As Scott JA held in S v Kgosimore
1999 (2)
SACR 238
at page 241 para [10]:
"It
is trite law that sentence is a matter for the discretion of the
court burdened with the task of imposing the sentence.
Various tests
have been formulated as to when a Court of appeal may interfere.
These include whether the reasoning of the trial
court is vitiated by
misdirection or whether the sentence imposed can be said to be
startlingly inappropriate or to induce a sense
of shock or whether
there is a striking disparity between the sentence imposed and the
sentence the Court of appeal would have
imposed. All these
formulations, however, are aimed at determining the same thing; viz
whether there was a proper and reasonable
exercise of the discretion
bestowed upon the court imposing sentence. In the ultimate analysis
this is the true inquiry. (Compare
S v Pieters
1987 (3) SA 717
(A) at
727 G-l.) Either the discretion was properly and reasonably exercised
or it was not. If it was, a Court of appeal has no
power to
interfere; if it was not, it is free to do so. I can, accordingly,
see no juridical basis for the stricter test suggested
by counsel;
nor is there anything in s 316B of the Act, or for that matter s
310A, to suggest otherwise. (See also S v Anderson
1964 (3) SA 494
(A.)"
[5]
It is important to highlight that the offences giving rise to the
trial against the appellant occurred in 1996 i.e. prior to
the
enactment of the General Law Amendment Act No. 105 of 1997.
[6]
A brief synopsis of the facts of the crimes the appellant was
convicted of-is as follows:
6.1
The appellant and his former co-accused broke into the premises of
the complainant in the count of housebreaking and theft with
the
intention to steal. Having done so they removed a large quantity of
household goods, clothing, and jewellery and hid them.
In the evening
while they were loading the stolen goods under the cover of darkness
into the appellant's vehicle the deceased came
upon them at the
scene. In his plea explanation the appellant described how the
deceased pointed a firearm at him and his accomplice.
A struggle
ensued between the appellant and the deceased. The appellant and his
accomplice overpowered the deceased and removed
the firearm (a Z88
pistol) from the deceased. The appellant then shot the deceased on
the chest and right rear hip. The deceased
died as a result of such
injuries.
6.2
The deceased had been in private clothes and had been travelling in
an unmarked private vehicle.
6.3
The appellant admitted in his statement in terms of
Section 112(2)
of
the
Criminal Procedure Act 51 of 1977
that he had removed the
deceased's R5 rifle, ammunition and cellular telephone with the
necessary intention of permanently depriving
him of such property.
6.4
In sentencing the appellant the learned trial judge dealt with crimes
the appellant was convicted of, the personal circumstances
of the
appellant and the interests of society. He pointed out that murder
was undoubtedly the most serious of crimes. The deceased
had been
shot after he had
been
disarmed. He noted that even if the appellant had not known that the
deceased had been a police officer the ―objective
in shooting
the deceased was to evade arrest-and-avoid being traced as one of the
persons who had committed the burglary. The robbery,
he remarked, was
likewise viewed as a serious crime as well.
6.5
He took note of the appellant's personal circumstances viz, his age
(34 years), his clean record, that even though he was unmarried
he
was the father of two minors whom he maintained. The appellant has a
standard eight level of education and had been employed
as an
operator earning R400 per week. In the appellant's favour he took
note of the appellant's contrition in pleading guilty and
undertaking
to testify against his co-accused who had pleaded not guilty. The
trial judge further dealt with the interests of society
highlighting,
inter alia, the well-known excerpt from R v Karg
1961 (1) SA 231
(A.D.) at 236 A -B where Schreiner J.A. noted:
“
While
the deterrent effect of punishment has remained as important as ever,
it is, I think, correct to say that the retributive
aspect has tended
to yield ground to the aspects of prevention and correction. That is
no doubt a good thing. But the element of
retribution, historically
important, is by no means absent from the modern approach. It is not
wrong that the natural indignation
of interested persons and of the
community at large should receive some recognition in the sentences
that courts impose, and it
is not irrelevant to bear in mind that if
sentences for serious crimes are too lenient, the administration of
justice may fall
into disrepute and injured persons may incline to
take the law into their own hands. Naturally, righteous anger should
not becloud
judgment."
[7]
What stands out in the judgment of the Court a quo was the evidence
of superintendent Vreugdenberg of the murder and robbery
division of
the South African Police, namely, that the deceased had been a
sergeant in the detective branch of the police. He was
married with a
three year old daughter. He was 25 years of age. He provided the
court with the statistics of the number of police
officers who had
been murdered between 1994 and 1998. This information must have been
intended to serve as emphasis of the seriousness
of the crime the
appellant was guilty of and as an aggravating factor. Nothing further
was mentioned in the judgment on the sentence
regarding the death of
police officers whilst on duty.
[8]
It was submitted by Ms. Koos-Manyakane, for the appellant, that the
appellant was wrongly convicted. Even though this related
to the
conviction and leave to appeal on the merits had not been granted
this court allowed her the opportunity to motivate this.
She then
pointed out that after pleading guilty the appellant had added that
he had not intended to kill the deceased. When she
was referred to
the written statement in terms of
section 112(2)
of the
Criminal
Procedure Act at
page 21 (lines 5 to 10) of the record she conceded
the lack of merit in her argument. The excerpt referred to reads as
follows:
n
Ek het toe die ongewapende ooriende wederregtelik en opsetlik twee
maal daarmee geskiet Ek erken dat ek voorsien het dat ek deur
die
ooriedene op 7? kort afstand met 'n vuurwapen geskiet het ek horn kon
gedood het Ek het my daarmee versoen."
[9]
With regard to the sentence Ms Koos-Manyakane submitted that I.) The
sentence was too harsh;
II.)
The trial court should have found that exceptional circumstances
existed in that the crimes committed were so closely related
that a
lesser sentence should have been imposed:
(III.)
The trial court should have ordered that the sentences imposed run
concurrently.
[10]
Ms. Scheepers for the State, submitted that the trial court had duly
considered ail the relevant factors and -urged-this court
-not-to.
interfere.. She emphasized the interests of society given the
alarming increase in violent crime and the need for sentences
to
reflect the obligation to ensure that serious crime is not met with
light sentences such that society would take the law into
its own
hands. She referred the court to S v Swart
2004 (2) SACR 370
(SCA) at
378 and urged the court to ensure that prevention and retribution
were clearly manifested in the sentence, if the court
were to
interfere with the sentence.
[11]
On debating the sentence with Ms. Scheepers on count one, i.e. the
murder count, she conceded, reluctantly, that the sentence
of forty
years did appear to run counter to the judicial trend to strive after
rehabilitation and reformation as opposed to retribution
and
prevention. She conceded further that life imprisonment is deemed to
be the ultimate form of punishment. She further and again
reluctantly
conceded that the general perception is that an offender sentenced to
life imprisonment could be released or considered
for release on
parole after 25 years imprisonment. The court's considered view is
that these concessions are correct and can be
deduced from the
jurisprudence of the Supreme Court of Appeal and the Constitutional
Court respectively. Two issues arise from
this viz, the
recommendation of the trial court regarding the period that must
elapse before the appellant can be considered for
release on parole
and whether the effective sentence on the counts of murder and
housebreaking with the intent to steal and theft,
namely, 40 years
and 10 years' imprisonment respectively, can be regarded as being in
accordance with the ethos of fairness and
justice in a society which,
despite the envied values enshrined in our Constitution, is still so
sharply riven by historic, educational
and economic factors.
[12]
Given the doctrine of separation of powers, under the present
Constitution, I am of the view that it is best left to the Department
of Correctional Services, which forms part of the Executive arm of
government, to determine when the accused should be released
on
parole without any suggestion or recommendation in this regard from
the Court. The Correctional "Services Department, which
functions under the executive branch of government may not influence,
nor seek to do so, the courts in their pursuit of administration
of
justice. Likewise, the courts may not influence Correctional Services
in their own duties and functions. It is indeed so and
perhaps only
human that a court may view the facts in a case so seriously that it
may be of the considered view that its abhorrence
and desire to
protect society from the accused's conduct should be conveyed to
Correctional Services. Whilst that may find favour
with the intellect
it overlooks the fundamental independence of the latter which, to my
mind, does not operate from the premise
that those convicted by the
courts and channelled to it are incorrigible and beyond redemption
from a life of crime and are beyond
rehabilitation. It is my
considered view that a recommendation along the lines in the sentence
on count one should be avoided and
left uninfluenced in the hands of
the appropriate department.
[13]
What has been said about rehabilitation and reformation applies to
the period of the appellants' rehabilitation viewed from
the
appropriateness or otherwise of the imprisonment for fifty (50)
years. It is my considered view based on the sentences emanating
from
the Supreme Court of Appeal that effective sentences exceeding 25
years' imprisonment are not confirmed lightly. Again the
basis for
this may be the emphasis on reformation and rehabilitation, based
inter alia on the constitutional precepts that punishment
should not
be cruel or be deemed to be such. This statement is made with the
full knowledge and appreciation of the gravity and
devastating
effects that the loss of the victim's life has inevitably inflicted
on his family, society and the country. The need
to have regard for a
convicted person's personal circumstances serve precisely to balance
the principles that must be considered
when sentencing as set out in
S v Rabie
1975 (4) SA 855
where Holmes JA said:
"
To sum up, in general punishment should fit the criminal as well as
the crime, be fair to society and be blended with a measure
of mercy
according to the circumstances."
[14]
In as much as it may be difficult to find "extenuating
circumstances" (S v Malgas), the appellant appears to have
expressed sincere remorse: it-may be that the evidence against him
was overwhelming. But the following facts cannot be overlooked.
He
was 34 years of age. He had never run foul of the law before. He was
in employment and still entertained the hope and desire
to return to
employment. He made a clean breast of what had occurred on the night
of the incident. He not only made an undertaking
to assist in his
co-accused's prosecution but made an affidavit that was accepted by
the state for the purpose for which it was
envisaged. He has
relentlessly pursued the hope of a reduction in his sentence.
[15]
It is often said that the admissions by a convicted person of his/her
complicity in the commission of a crime is the first
step to
reformation and rehabilitation. Whatever greed may have enticed the
appellant to conspire with his former co-accused may
have given way
to a full realization of the error of his ways. The opposite may be
true i.e. having been apprehended all romantic
notions gave way to
reality and the only hope is the route the appellant has chosen. In
the court's view the appellant should be
given the benefit of the
doubt. After all, the psychologists and other experts that will plot
and vet his future are in place within
the Department of Correctional
Services.
[16]
It is my considered view that the trial court was in all probability
influenced in imposing the sentence that it did, by the
fact that the
deceased was a police officer. The statistics on the death of police
officers on duty is quite alarming and evinces
a response to impose a
sentence that little or no mercy will be shown to those who shoot or
harm law enforcement officers. Having
regard to the facts in this
matter, it is my considered view, that 40 years' imprisonment on
count 1 is excessive and this court
should interfere with that
sentence. It is my considered view that 20 years' imprisonment would
be an appropriate sentence on the
count of murder. I would confirm
the sentences on counts 2 and 3.
[17]
In the result:
1.
The appeal against sentence succeeds,
2.
The sentence imposed is set aside.
3.
In its place the following sentence is imposed:
(I.)
On the charge of murder - twenty (20) years' imprisonment;
(II.)
On the charge of robbery-ten (10) years' imprisonment,
(III.)
On the charge of housebreaking with intent to steal and theft - ten
(10) years' imprisonment. I would suspend half of this
sentence for a
period of five (5) years on condition that the appellant is not
convicted of the offence of housebreaking and theft
committed during
the period of suspension;
IV.)
It is ordered that the sentence for robbery run concurrently with the
sentence for murder. The effective sentence is therefore
25 years'
imprisonment.
G.
WEBSTER JUDGE IN THE HIGH COURT
I
agree.
N
RANCHOD
JUDGE
IN THE HIGH COURT
I
agree.
B.
PAKATI
ACTING
JUDGE IN THE HIGH COURT
1.
The appeal against sentence succeeds,
2.The
sentence imposed is set aside.
3.
Sn its place the following sentence is imposed:
(I)
On the charge of murder - twenty (20) years1 imprisonment;
(II)
On the charge of robbery - ten (10) years' imprisonment;
(III)
On the charge of housebreaking with intent to steal and theft - ten
("10) years' imprisonment J would suspend half of
this sentence
for a period of five (5) years on condition that the appellant is not
convicted of the offence of housebreaking and
theft committed during
the penod of suspension;
(IV.)
It is ordered that the sentence for robbery run concurrently with the
sentence for murder. The effective sentence is therefore
25 years'
imprisonment.
G.
WEBSTER
JUDGE
IN THE HIGH COURT
I
agree-
N.
RANCHOD
JUDGE
IN THE HIGH COURT
I
agree.
B.
PAKATI
ACTING
JUDGE IN THE HIGH COURT