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[2018] ZAECPEHC 44
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S v Horne and Another (CC3/2018) [2018] ZAECPEHC 44 (16 August 2018)
NOT
REPORTABLE/REPORTABLE/OF INTEREST
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
In
the matter
between:
Case No: CC 3/2018
THE
STATE
And
SHAAN
HORNE
SHANE
ARENDS
Accused
Coram:
Chetty J
Heard:
13 August 2018
Delivered:
16 August 2018
JUDGMENT
Chetty
J:
[1]
The evidence adduced established that the area where the shooting
occurred was controlled by the Dustlifes gang, and territorially,
sacrosanct. Given the enmity between them and their adversaries, the
Upstand Dogs, the foolhardiness of intruding upon their turf,
is
self-evident. And yet, on the morning of 23 July 2016, the accused
and their coterie brazenly entered forbidden territory. Their
raison
de etré
is a matter peculiarly within
their knowledge and remains suppressed. When the vehicle entered
Avalon Crescent and stopped suddenly,
accused no. 1 alighted,
proceeded in the direction of the deceased and without further ado
fired a shot at him. He must have been
utterly bemused and the
attempt to flee down the stairway triggered the firing of a second
shot and his forward momentum no doubt
caused him to fall and whilst
prone on the ground, accused no. 1 stood above him and fired three
shots into his head, returned
to the vehicle and fled the scene. As
adumbrated in my earlier judgment, the inference can properly be made
that he had the direct
intention to kill the deceased. The reason for
this cold blooded murder befuddles the mind.
[2]
Crimes of such ilk attract a mandatory sentence of 15 years
imprisonment absent a finding that there are substantial and
compelling
circumstances which militate against its imposition.
Counsel for accused no. 1, Mr
Bodlo
,
fairly conceded that he was constrained from submitting that the
requisite circumstances were present but nonetheless urged me
to find
that a sentence of 15 years was manifestly unjust. The submission
advanced is untenable and requires no serious consideration.
A
finding that there are no substantial and compelling circumstances is
dispositive of the enquiry. As Marais JA trenchantly reasoned
in
Malgas
[1]
:
-
“
[21] It would be
foolish of course, to refuse to acknowledge that there is an abiding
reality which cannot be wished away, namely,
an understandable
tendency for a court to use, even if only as a starting point, past
sentencing patterns as a provisional standard
for comparison when
deciding whether a prescribed sentence should be regarded as unjust.
To attempt to deny a court the right to
have any regard whatsoever to
past sentencing patterns when deciding whether a prescribed sentence
is in the circumstances of a
particular case manifestly unjust is
tantamount to expecting someone who has not been allowed to see the
colour blue to appreciate
and gauge the extent to which the colour
dark blue differs from it. As long as it is appreciated that the mere
existence of some
discrepancy between them cannot be the sole
criterion and that something more than that is needed to justify
departure, no great
harm will be done.
[22] What that something
more must be it is not possible to express in precise, accurate and
all-embracing language. The greater
the sense of unease a court feels
about the imposition of a prescribed sentence, the greater its
anxiety will be that it may be
perpetrating an injustice. Once a
court reaches the point where unease has hardened into a conviction
that an injustice will be
done, that can only be because it is
satisfied that the circumstances of the particular case render the
prescribed sentence unjust
or, as some might prefer to put it,
disproportionate to the crime, the criminal and the legitimate needs
of society. If that is
the result of a consideration of the
circumstances the court is entitled to characterise them as
substantial and compelling and
such as to justify the imposition of a
lesser sentence.”
The
goal directed nature of the crime and its method of execution refutes
any suggestion that the ordained sentence is disproportionate.
[3]
This case is yet another in the never ending and escalating orgy of
violence which envelopes the northern areas of Port Elizabeth.
The
statistics adverted to by Constable
Xolile
Lolo Owen Peta
(
Peta
)
are shocking and attest to an unprecedented level of violence where
entire communities are held ransom by young thugs. The accused’s
capture that morning was merely fortuitous and effected only by
reason of the police’s rapid response. Accused no. 2 was
found
in possession of the firearm and neither his plea of guilty nor his
implication of accused no. 1 inures to his benefit. I
have no doubt
that his presence in the Polo was not as innocent as he sought to
portray given the material conflict between his
plea explanation and
his
viva voce
evidence. Their journey from
Daniel’s
home to Avalon Crescent was clearly an act of bravura with
forethought, although its exact purpose remains unclear. On the
available
evidence however it is clear that accused no. 1 was on a
frolic of his own when he ran after and shot the deceased.
[4]
Both accused are in their mid-twenties, accused no. 1, 23 at the time
of the commission of the offence and accused no. 2, 25.
Accused no. 1
is a matriculant and although unmarried, the father of a 10 month old
child, whom I am told, resides with its mother
and himself as a
family unit. Although not in fixed employment, he worked on a casual
basis and earned R1 500. 00 per fortnight
which he utilised for
the upkeep of his family. His previous conviction is of no real
moment. Accused no. 2, a first offender,
contracted tuberculosis
awaiting trial initially and its late detection has, I am told,
severely compromised his health. He too
was not in any fixed
employment.
[5]
In contradistinction, the deceased was the sole breadwinner for his
family. His grandfather, Mr
John Africa
,
attested to a victim impact assessment report (exhibit “R”)
wherein he detailed the grief, anguish and misfortune
which has
befallen them. The evidence adduced negated any notion that the
deceased was affiliated to any particular gang and his
death appears
clearly to have occurred in a classic case of him being in the wrong
place at the wrong time.
[6]
I have however been impressed upon to impose a sentence in excess of
the ordained sentence on accused no. 1, given his goal
directed
conduct. Although there is a paucity of information before me
concerning his prospects for rehabilitation, his academic
record
justifies the inference that he has some prospect of reformation. The
accused’s gang affiliation furthermore does
not necessarily
justify a propensity for criminality. Marginalised and unemployed
youth, growing up and living in sub-standard
economic conditions, are
easily assimilated into the gang culture, in most cases for their own
self-preservation and I am unable
to conclude that an increased
sentence is indeed warranted.
[7]
The unlawful possession of the firearm and ammunition are indeed
serious offences, directly linked to the horrendous crime statistics
adverted to by
Peta
and merit an appropriate sentence. In the result the accused are
sentenced as follows –
Accused No. 1
Count 2
- 15
years
imprisonment;
Count 3
- 5 years
imprisonment;
Count 4
- 1 year
imprisonment.
It is ordered that the
sentences on counts 3 and 4 run concurrently with that imposed on
count 2.
Accused No. 2
Count 3
- 5 years
imprisonment;
Count 4
- 1 year
imprisonment.
It is ordered that the
sentence on count 4 run concurrently with that imposed on count 3.
________________________
D.
CHETTY
JUDGE
OF THE HIGH COURT
Obo
the State: Adv M. Sandan / Adv R. Ahmed
National
Director of Public Prosecutions, Uitenhage Road, North End Port
Elizabeth
Tel:
(012) 842 1400
Obo
the Defence: Mr Bodlo / Adv. J Coertzen
Legal
Aid: South Africa, Uitenhage Road, North End, Port Elizabeth
Tel:
(041) 408 2800
[1]
2001 (1) SACR 469
(SCA)