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[2013] ZAECPEHC 54
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S v Sonti (CC 11/12) [2013] ZAECPEHC 54 (18 October 2013)
5
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, PORT ELIZABETH)
Case No: CC11/12
Date heard: 18/10/13
Date delivered: 18/10/13
Not reportable
In the matter between:
THE STATE
and
MASIXOLE SONTI
.............................................................................................
Accused
___________________________________________________________________
JUDGMENT: SENTENCE
PLASKET, J:
[1] I convicted the accused of two
offences, namely theft of a cell-phone and of being an accessory
after the fact to robbery with
aggravating circumstances. I acquitted
his co-accused of all of the charges that had been levelled against
him. I must now impose
sentence on the accused.
[2] The background, in brief, is that
in the early hours of the morning of 31 October 2010, the accused was
in the company of his
co-accused and one Luvuyo, who is now deceased.
When they were asked what they were doing by the occupants of a car
that drove
up to them, Luvuyo drew a firearm and opened fire on the
occupants of the car. He killed one person, rendered a second a
paraplegic
and inflicted a flesh wound on a third before searching
his victims and robbing them of a wallet containing cash and bank
cards
and three cell-phones.
[3] While neither of the accused took
part in these events or associated themselves with the actions of
Luvuyo, when they left the
scene they went together to the accused’s
house where Luvuyo gave two cell-phones to the accused, instructing
him to unblock
one that required a security code but giving him the
second cell-phone, which the accused accepted. That is the basis of
the theft
conviction. Luvuyo instructed the accused to throw away the
bank cards that had been taken from the stolen wallet, which the
accused
did. That is the basis for the conviction for being an
accessory after the fact to robbery with aggravating circumstances.
[4] As is customary, I shall in the
determination of sentences for these offences consider (and attempt
to balance appropriately)
the personal circumstances of the accused,
the nature of the offences he committed and the interests of society.
[5] The accused is now 23 years old.
He was 20 years old when the offences were committed. He has a
standard six education. He left
school in 2009 without completing
standard seven. He left school because of financial hardship. His
mother had died in 2007 and
his father died in 2010. At the time of
his arrest, he had part-time work packing shelves in a shop. He
earned R100 per day for
the days on which he worked. He lived with
his brother.
[6] He is a first offender. He has
been in custody awaiting trial since he was arrested on 2 December
2010. I was informed by Mr
Mgenge, who appeared for the State, that,
although he cannot say why the accused spent so long as an awaiting
trial prisoner, he
can say that it was not as a result of the accused
delaying the completion of his trial.
[7] The offences of which the accused
were convicted are serious in their own right. He witnessed a most
brutal and unprovoked murder
of an innocent person followed by the
gunning down of a second person and the wounding of a third. This was
in turn followed by
the robbery of property from the dead, the
injured and those who as a matter of luck remained uninjured. He said
in his evidence
that he was shocked when Luvuyo drew a firearm and
began to shoot at the occupants of the car.
[8] Despite this, immediately on
arriving home, he took a share of the spoils, knowing full well that
they were obtained in the
manner that I have described, and he also
tried to cover Luvuyo’s tracks by disposing of the cards that
Luvuyo had no need
for. This conduct speaks of a grave degree of
callousness on the part of the accused and complete indifference to
the brutality
with which the cell-phone and cards were obtained.
These are aggravating factors.
[9] The interests of society loom
large in a case such as this. I am sure the conduct of the accused in
taking advantage of the
misfortunes of Luvuyo’s victims would
fill right-thinking people with revulsion – and correctly so.
Society, it has
been said many times by our courts, is sick and tired
of the type of extreme violence that occurred in this matter. Decent,
law-abiding
people would expect not only that the perpetrators of
violent crimes be severely punished but that those who, like the
accused,
take advantage of such violent crimes should also feel the
full weight of the law. Society’s natural indignation must be
accorded appropriate recognition.
[10] The personal circumstances of the
accused are favourable and the period of just short of three years
that he has spent in custody
must also be recognised in his favour.
That said, the circumstances of both offences render them serious:
when people take advantage
of violent crime rather than sharing their
knowledge as to who is responsible with the police, the
administration of justice suffers
and the plague of criminality in
the country will continue unchecked.
[11] I intend to impose separate
sentences for the two offences. They were separate and distinct acts
with different aims and purposes.
In order to give recognition to the
period of time the accused has spent in prison so far, I shall order
that the sentences run
concurrently.
[12] I have considered the judgment of
the Supreme Court of Appeal in
S v Scott-Crossley
2008 (1)
SACR 223
(SCA) and I agree with Ms Theron who appeared for the
accused that the conduct in that case was more serious than the
accused’s
conduct in this case. Scott-Crossley had, after
employees of his had killed the deceased, assisted them to dispose of
his body
by throwing it into an enclosure in which lions were kept.
He was sentenced to five years’ imprisonment after a conviction
of murder was altered on appeal to one of being an accessory after
the fact to murder. He too was a first offender with favourable
personal circumstances.
[13] In my view, the conduct of the
accused is serious enough to warrant a sentence in excess of the time
that he has spent in custody.
It would, however, be unfair to
sentence him to what would ordinarily be an appropriate sentence as
that would not recognise the
long period that he has been in prison
awaiting trial.
[14] I would have sentenced the
accused to three years’ imprisonment on each count and I would
not have ordered any of the
sentences to run concurrently. I believe
that, even giving full recognition to his relative youthfulness at
the time the offences
were committed and his clean record, a sentence
of six years’ imprisonment would have been warranted. As I
believe I must
give recognition to the nearly 35 months that the
accused has spent in custody, I shall order the sentences of three
years’
imprisonment to run concurrently with each other. (I
have opted for this approach because I am not able, as a trial court,
to ante-date
a sentence.)
[15] The accused 2 is sentenced as
follows:
(a) In respect of the conviction of
theft, he is sentenced to three years’ imprisonment.
(b) In respect of the conviction of
being an accessory after the fact to robbery with aggravating
circumstances, he is sentenced
to three years’ imprisonment.
(c) The sentences imposed above shall
run concurrently.
_________________________
C Plasket
Judge of the High Court
APPEARANCES
The State: S Mgenge of the office of
the Director of Public Prosecutions, Port Elizabeth
Accused 2: E Theron instructed by
Legal Aid South Africa