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[2012] ZAECPEHC 53
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S v Minnie (CC 34/2011) [2012] ZAECPEHC 53 (17 August 2012)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE, PORT ELIZABETH
CASE NO.: CC 34/2011
DELIVERED:
17-08-2012
In the matter between:
THE STATE
And
GAVIN MINNIE
SENTENCE
________________________________________________________________
BESHE, J:
[1] Mr Neal Alexander Domingo (deceased) whose age was
51 and a traffic officer was shot to death on the evening of the 12
August
2009. Mr Domingo had minutes before that parted with his
daughter Ms Seafield whom he had visited at her home. At the time of
the
shooing Mr Domingo was in his official motor vehicle, a marked
traffic department sedan and clad in his uniform. He was also robbed
of his service pistol.
[2] The offences were committed by the accused who was
acting in concert with an unidentified companion. Both the accused
and his
companion were armed with firearms. This resulted in accused
being convicted on four counts being:
Murder.
Robbery with aggravating circumstances.
Unlawful possession of firearms and ammunition.
[3] These proceedings have reached the stage where I
should consider what sentence will be appropriate in the
circumstances of this
case. In doing so I will take the following
into consideration: The nature of the crimes that the accused has
been convicted of;
his personal circumstances and the interests of
the society. I will also endeavour to blend the sentence that I will
impose with
a measure of mercy according to the circumstances of this
case. See in this regard
S v Kumalo
1973 (3) SA 697
(A)
[4] The accused is now 33 years old having been 30 years
old at the time of the commission of the offences. He is one of four
children.
He siblings are all older than him. He went as far as grade
8 at school. He lost his father when he was ten years old. This
resulted
in his family having to move from a seven roomed house to
two roomed house that is situated in notorious area known as Katanga
or “Die Gat” and later to another two roomed house in
Ibex Street, also in Gelvandale.
[5] The family survives on a monthly old age pension
grant drawn by accused’s mother who is also suffering from
ill-health.
Attempt by the accused to find employment failed save for
a period of 3 months in 2000 when he was employed as a casual worker.
He has tried to earn a living by selling sweets, liquor and
cigarettes from his home and by helping his brother-in-law who is a
tiler. He is not married, but is the father to two minor children
aged 10 and 2 years respectively.
[6] The accused is not a first offender. In 2000 he was
convicted of indecent assault. In 2004 he was convicted of attempted
rape.
In 2010 he was convicted of 1. Attempted murder. 2. and 3.
Unlawful possession of a fire arm and ammunition respectively.
[7] The offences that the accused has been convicted of
attract the application of the
Criminal Law Amendment Act 105 of 1997
as amended, also known as the Minimum Sentence Act. This prescribe
minimum sentences that courts are enjoined to impose in the
case of a
conviction in respect of those serious offences. In respect of the
murder charge, accused is liable to imprisonment for
life because the
death of the deceased was committed during a robbery.
[8] The robbery attracts a minimum sentence of 15 years
imprisonment because aggravating circumstances were present in the
commission
of the robbery in that both the accused and his companion
wielded firearms.
[9] Had accused been a first offender in so far as the
possession of a semi-automatic firearm is concerned, he would have
been liable
to 15 years imprisonment. This however is his second such
conviction and he is therefore liable to imprisonment for 20 years.
[10] Section 51 (3) (a) of Sentencing Act referred to
supra
provides that if a court is satisfied that substantial
and compelling circumstances exists which justify the imposition of a
lesser
sentence than the sentence prescribed by the Act, it shall
enter those circumstances on the record of proceedings and thereupon
impose such lesser sentence.
[11] It was submitted on behalf of the accused that the
following factors amount to substantial and compelling circumstances,
justifying
the imposition of a lesser sentence by this court: The
fact that accused is relatively young, something that bodes for
rehabilitation.
That this is further evidenced by the fact that he
has voluntarily undergone rehabilitation courses in prison i.e. Bible
study,
anger management program as well as a life skills program. The
fact that he was convicted on the basis of common purpose and was
not
the person who fired the fatal shot. I was also urged on his behalf
to take into account that he did not have an easy childhood
and must
have been affected by the passing of his father at an early age and
therefore did not have a role model. That there was
no evidence that
these offences were planned – they were committed on the spur
of moment.
[12] Counsel for the state submitted that there were no
substantial and compelling circumstances justifying the imposition of
lesser
sentences than those that are prescribed by the Sentencing
Act. Further that accused is not a first offender that minimized the
prospects of him being rehabilitated. Previous convictions or brushes
with the law did not discourage him from engaging in crime.
[13] In
DPP KwaZulu Natal v Ngcobo 2009 (2) SACR
Navsa JA
stated that
S v Malgas
2001 (1) SACR 469
SCA
was a good place to start when faced with the question
whether substantial an compelling circumstances exist.
Marais JA
in
Malgas’s
case stressed that courts are
required to approach the imposition of sentences cautiously that the
legislature has ordained certain
periods of imprisonment for those
particular offences as the sentences that should ordinarily be
imposed. The Honourable Judge
of Appeal cautioned against departure
from the prescribed sentences for flimsy reasons.
[14] In
S v Matyityi 2011 (1) SACR Ponnan JA
found
that the fact that accused in that case was 27 years old was a
neutral factor; because there was no evidence that he was immature
or
that any influence was brought to bear upon him to cause him to act
in the manner he did.
[15] The accused in this matter is 33 years old, he
cannot be said to be youthful in the sense that he is still immature.
Is the
accused a candidate for rehabilitation? As indicated earlier
on he has previously been convicted and sentenced to go to jail with
part of the sentences being suspended. This does not seem to have had
the desired effect, namely discouraged him from committing
crime. The
present offences were committed a few days after his step-daughter
Bianca was buried. Bianca had been shot at accused
home. This does
not seem to have brought it home to him that firearms place human
beings’ lives in danger. He went around
armed with a firearm
with a companion who was also armed with a firearm and it would seem
the only reason deceased lost his life
was so that accused and his
friend could add to their collection of firearms. In my view you do
not keep a firearm to admire it
- but to use it to fire shots.
[16] Just as accused has minor children, mother and
siblings, the deceased was ± 51 years old gainfully employed
and had
a family. I have no doubt that he also had hopes and
aspirations about his future and all that was brought to a halt on
the 12
August 2009.
[17] I have no doubt that members of the community at
large, deceased’s family and friends are watching with keen
interest
whether they enjoy protection of law from people who behave
like the accused.
[18] Growing in a stricken area with a single parent or
being an orphan, joblessness is a fate that confronts many in our
country
because of the socio-economic conditions prevailing in our
country. But I do not believe that this justifies that people should
commit offences – kill others and engage in other crimes. If
anything I know of many people who were motivated by those same
circumstances to work hard so that they can have a better life to
make sure that their children do not suffer the hardship they
did. I
do not understand how committing crimes such as one committed by the
accused helps to improve his situation.
[19] I will however be mindful to what was stated by
Harmse JA
in
S
v Mhlakaza
1997 (1) SACR 515
SCA
namely
that –
“The
object of the sentencing is not to satisfy public opinion but to
serve the public interest. A sentencing policy that
predominantly for
public opinion in inherently flawed. It remains the court’s
duty to impose fearlessly an appropriate and
fair sentence even if
the sentence does not satisfy the public.”
Harmse JA
went on to
say:
“
Given the current levels
of violence and serious crime in this country, it seems proper that,
in sentencing such crimes, the emphasis
should be on retribution and
deterrence.”
[20] However having considered the circumstances of this
case as well as the personal circumstances of the accused I consider
the
following to be substantial and compelling circumstances.
That
there is no evidence that the murder and robbery of deceased were
premeditated.
Accused
was convicted on the basis of common purpose, he is not the person
who pulled the trigger.
Be that as it may, I am of the view that the offences
that accused has been convicted of require the imposition of stiff
sentences.
[21] I will be mindful of the fact that in imposing
lesser sentences than the one that are prescribed, I should take
account of
the fact that these crimes have been singled out for
severe punishment and that the sentence to be imposed in lieu of the
prescribed
sentences should be assessed paying due regard to the
bench mark which the legislature has set.
[22] I am satisfied that lengthy terms of imprisonment
for each of the offences will serve the interest of justice which
includes
the interest of the society, serve as a deterrent to accused
and the would-be offenders and serve as punishment.
[23] In the circumstances I consider the following
sentences to be appropriate:
Count 1:
Accused is sentenced to undergo 28 years imprisonment.
Count 2: To undergo 12 years imprisonment.
Count 3: To undergo 10 years imprisonment.
Count 4: To undergo 2 years imprisonment.
Half of the sentence in count 2, as well as the
sentences in respect of counts 3 and 4 are ordered to run
concurrently with the
sentence in respect of count 1.
__________
N
G BESHE
JUDGE
OF THE HIGH COURT