About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2019
>>
[2019] ZAECPEHC 30
|
|
S v January and Others (37/2017) [2019] ZAECPEHC 30 (13 May 2019)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
In
the matter
between:
Case No: 37/2017
Date
heard: 7 May 2019
Date
delivered: 13 May 2019
THE
STATE
And
LINDOKUHLE
JANUARY
Accused 1
OLWETHU
DLANGA
Accused 2
AWONKE
YAKO
Accused 3
LONWABO
MAWENI
Accused 4
JUDGMENT
Goosen
J:
[1]
For members
of the public intending to visit the Greenacres Shopping Centre in
Port Elizabeth the morning of 29 July 2016 no doubt
began as any
other day. Apart from the rainy conditions there was no reason to
suppose that the day would not be like any other.
For Mr
Monde
Goduka
and for the
Goduka
family the day however would be fatal and tragic. For Mr
George
,
now deceased, he would find himself in the midst of gunfire,
desperately trying to avoid the theft of his motor vehicle. For Mrs
Slabbert
,
her trip to Cell C to have her telephone repaired would see her
robbed of her motor vehicle at gunpoint and leave her severely
traumatised. For the staff of Fischer’s Jewellers their workday
would begin with what they most feared but had at least prepared
for,
a gang of armed robbers in the store.
[2]
I do not
write this introductory passage for mere dramatic effect. It is to
highlight the stark and terrible reality that this case
brings to the
fore. Before me today are four men, three of them under the age of 25
years. They have been convicted of very serious
offences. The three
young men are first time offenders. What they did on that fateful day
will regrettably shape the rest of their
lives.
[3]
Seated in
the public gallery are the relatives and friends of the deceased.
They too are marked by the events of that day and, no
doubt, hope
that the punishment meted out will give them a sense that justice has
been served.
[4]
The task of
deciding upon an appropriate, just and fair sentence is one of, if
not
the
most difficult task undertaken by a court. The reason is not hard to
discern. The punishment must fit the crime i.e. it must be
appropriate to and commensurate with the crime. For this reason,
careful attention is to be paid to the nature of the crime, the
circumstances of its commission and its effect, both specific and
generic. It must, therefore, take cognisance of the personal
circumstances of the accused, her/his role in the commission of the
offence and his/her attitude to the crime. Finally, the particular
punishment must serve the public interest. It must, so far as is
reasonably possible, be able to achieve the objects of punishment.
These include the object of deterrence of future criminal conduct;
the object of retribution and that of rehabilitation of the
offender.
All of these competing interests must be balanced to achieve a fair
and just sentence that recognises the humanity and
dignity of both
victim and perpetrator.
[5]
In this
case, several of the offences for which the accused have been
convicted carry prescribed minimum sentences. In respect of
counts 1
and 6 (robbery with aggravating circumstances) a minimum sentence of
15 years imprisonment is prescribed. Count 5 (the
murder charge)
carries a prescribed sentence of life imprisonment. Counts 7 and 9
(the unlawful possession of a semi-automatic
firearm) have a
prescribed sentence of 15 years.
[6]
The
statutorily prescribed sentences are discretionary inasmuch as the
sentencing court may impose a sentence other than that prescribed
if
it is satisfied that substantial and compelling circumstances are
present warranting a departure. (See
S
v Malgas
[1]
;
S
v Dodo
[2]
;
S
v Vilakazi
[3]
.)
[7]
A court
will not, however, deviate from the prescribed sentences for flimsy
or insubstantial reasons. This means that it must on
reasonable and
justifiable grounds exercise its discretion to depart.
[8]
In
determining whether substantial and compelling circumstances are
present the court takes into account all of the so-called traditional
mitigating factors. Although the court is not concerned with
establishing whether extraordinary circumstances exist, it must be
satisfied that the mitigation gives rise to a substantial reason to
depart from the prescribed sentence.
[9]
In giving
consideration to these factors the court is called upon to give due
weight to the sentencing policy as determined by the
legislature. The
court must, however, consider the proportionality of the prescribed
sentence in relation to the crime, the criminal
and the interests of
the society (See
S
v Vilakazi
[4]
).
[10]
It should
also be noted that the court also has discretion to impose a sentence
in excess of the minimum prescribed. A court will
do so in
circumstances where the presence of severely aggravating
circumstances are established. (See in this regard
Mdlongwa
v S
[5]
; cf also
S
v Khoza
[6]
.)
[11]
None of the
accused presented testimony in relation to sentence. However,
pre-sentence probation officers’ reports were compiled
in
respect of accused 1, 2 and 3. These were handed in and received in
evidence as exhibits “SSS”, “TTT”
and “UUU”.
A victim impact assessment report, which dealt with the impact of the
murder of Mr
Goduka
upon the
Goduka
family, was admitted as exhibit “RRR”.
[12]
I shall
where necessary refer to particular aspects covered by these reports.
It is, however, unnecessary to summarise or recount
the content of
each of these reports, each of which I have taken into consideration.
[13]
It is
appropriate to deal with the nature, seriousness and effect of the
crimes before turning to the mitigating factors said to
be present.
There can be little doubt that the robbery committed at Fischer’s
falls within the category of the more serious
manifestations of the
crime. It was a carefully planned and executed robbery, as the brief
description of events herein and the
findings made in the main
judgment make clear.
[14]
The accused
armed themselves with loaded firearms and other equipment. As is
evident from the video footage the shopping mall is
patrolled by a
number of security personnel. The accused were plainly aware of this.
Their scouting of the mall before executing
the robbery makes this
clear. The firearms were used to threaten the staff and security
inside Fischer’s and to subdue customers.
In making their
escape members of the public were also threatened.
[15]
The
evidence establishes brazen conduct during normal business hours when
it can be expected that many shoppers and other persons
would be
present. The robbers proceeded with calculated determination to carry
out the robbery. The existence of security measures
taken to deter
such criminal conduct proved to be of little avail. No doubt because
the accused were armed and prepared to use
their arms. The callous
and wanton disregard for the safety and lives of innocent members of
the public is startling. So too is
the determination to secure their
getaway. In this regard, rather than submit to police officers
pursuing them the accused persisted.
Shots were fired. An innocent
bystander was shot and killed and further separate crimes are
committed. These, in my view, are all
seriously aggravating features.
[16]
The murder
of Mr
Goduka
is chillingly captured on the video footage. The images show accused
1 rapidly approaching the vehicle the deceased is seated in.
Almost
immediately a shot is fired. There is no attempt to dispossess him of
his vehicle nor any of his personal belongings. Instead,
the accused
flee from the scene on foot.
[17]
The
evidence points to no discernable reason for the shooting of Mr
Goduka. None has been given by the accused. His death, it appears,
was a cold-blooded and senseless act performed by accused 1, as noted
in the main judgment, in execution of a direct intention
to kill. It
is an egregious crime.
[18]
Mr
Goduka’s
death has left his family deeply traumatized. It is apparent that his
widow has borne the loss with great difficulty. His son cannot
even
bring himself to talk about the trauma. These are not wounds that
will not heal speedily, if ever. The family has lost a loving
and
caring husband, father and grandfather, for no reason than that he
went about his business as an ordinary citizen would in
an open and
democratic society.
[19]
It is not
only the
Goduka
family that has suffered, albeit that their loss is possibly the
gravest. Mr
George
,
now deceased, must have feared for his life as he resisted the
hijacking of his vehicle. His vehicle was severely damaged. He
was
caught in the cross-fire of a shoot-out between the robbers and the
police. Mrs
Slabbert
was robbed of her vehicle at gunpoint. Her personal belongings were
taken and shots were fired at the robbers fleeing in her motor
vehicle. There are also the staff of Fischer’s, for whom this
was the second armed robbery and the customers and members
of the
public who were threatened with firearms during the course of
the robbery.
[20]
Accused 1,
2 and 3 were 22, 20 and 20 years old respectively at the time of the
commission of the offence
[7]
. In
respect of all three of the accused, it was argued that their
youthfulness is to be regarded as an important mitigating factor.
The
argument was that this factor, when considered in conjunction with
the lack of previous convictions, ought to be accepted as
constituting substantial and compelling circumstances. I shall deal
more fully hereunder with the question regarding substantial
and
compelling circumstances and the personal circumstances of the
accused. Before doing so it is necessary to say something about
youthfulness as a mitigating factor.
[21]
Youthfulness
as it impacts the commission of an offence has always generally been
regarded as a mitigating factor. The rationale
for doing so lies
therein that the younger an offender is the more likely it will be
that his/her judgment is effected by immaturity;
by impulsiveness; by
susceptibility to suggestion or peer pressure. These are frailties
which occur or are to be found at a stage
when the young person is
still developing an independent and mature character.
[22]
Youthfulness
in character for these, and many related reasons, is then generally
considered to be relevant to moral blameworthiness.
Hence it will
serve to mitigate punishment to a level appropriate having regard to
the age of the accused.
[23]
Our law
recognizes that persons of a certain age and below are to be
considered as children. Given the constitutional requirement
of the
paramountcy of a child’s best interests, the criminal law deals
with children in a very particular way. The provisions
of the
Child
Justice Act
[8]
regulate
criminal matters where the accused is a child (i.e. under the age of
18). Although all persons aged 18 and older are to
be treated as an
adult, their ages in relation to the defining age remains an
important consideration.
[24]
In such
circumstances, reliance upon the youthfulness of the adult offender
requires that the court consider facts which suggest
or point to
actual or to be inferred immaturity in the assessment of the conduct
of the accused.
[25]
In
S
v Matyityi
[9]
Ponnan JA had the following to say about youthfulness:
“
[14] Turning to
the respondent's age: what exactly about the respondent's age tipped
the scales in his favour, was not elaborated
upon by the learned
judge. During the course of the judgment reference was made to the
respondent's 'relative youthfulness', without
any attempt at defining
what exactly that meant in respect of this particular individual. It
is trite that a teenager is prima
facie to be regarded as immature
and that the youthfulness of an offender will invariably be a
mitigating factor, unless it appears
that the viciousness of his or
her deeds rules out immaturity. Although the exact extent of the
mitigation will depend on all of
the circumstances of the case, in
general a court will not punish an immature young person as severely
as it would an adult. It
is well established that, the younger the
offender, the clearer the evidence needs to be about his or her
background, education,
level of intelligence and mental capacity, in
order to enable a court to determine the level of maturity and
therefore moral blameworthiness.
The question, in
the final analysis, is whether the offender's immaturity, lack of
experience, indiscretion and susceptibility
to being influenced by
others reduce his blameworthiness. Thus, whilst someone under the age
of 18 years is to be regarded as naturally
immature, the same does
not hold true for an adult.
In
my view a person of 20 years or more must show by acceptable evidence
that he was immature to such an extent that his immaturity
can
operate as a mitigating factor.
”
Dealing
with the facts of that case Ponnan JA said: “
At
the age of 27 the respondent could hardly be described as a callow
youth. At best for him, his chronological age was a neutral
factor.
Nothing in it served, without more, to reduce his moral
blameworthiness. He chose not to go into the box, and we have been
told nothing about his level of immaturity or any other influence
that may have been brought to bear on him, to have caused him
to act
in the manner in which he did.”
(Emphasis
added)
[26]
The same
applies here. The only evidence which could support an argument for
immaturity is that reflected in the pre-sentence reports.
The accused
themselves did not testify. The probation report in regard to accused
1 reflects a positive and well-balanced upbringing
of the accused.
Although his father died in a motor vehicle accident when the accused
was very young, he was brought up in a caring
and loving family
environment. The report states that:
“
5.6
Information received indicates that the accused was born in Hofmeyer
but grew up in Port Elizabeth. He was raised by his
grandparents whom
according to the accused ensured that they instil positive values
upon them as children. It was further reported
that the accused grew
up in a religious family where Christian values were endorsed.
5.7
With regard to his upbringing, the accused reported that he has
pleasant memories about his childhood. The
accused highlighted
learnings that he received from his grandparents about responsibility
and discipline. The accused reminisced
events at home when one of the
children misbehave and they would end up all being punished unless
the responsible person confesses
to the wrong doing. According to the
accused, his grandparents also taught them unity as they treated all
of them equally.”
[27]
Accused 1
completed grade 9 successfully. He left school in grade 10 during his
second attempt. He is unmarried and has no children.
He is unemployed
and is financially dependent upon his family. The probation officer
reports that his development stage is that
of a young adult, although
he has not achieved financial independence. There is nothing in the
report which suggests that the accused
is emotionally, intellectually
or psychologically immature. There is also no evidence which might
suggest that the accused’s
lack of maturity played any role in
reducing his moral blameworthiness in relation to the offences
committed.
[28]
The same is
true in respect of the probation reports regarding accused 2 and 3.
Accused 2 was provided with a stable family home
environment
notwithstanding that his father and mother separated when he was
young. His father played no role in his upbringing.
The family
struggled financially and survived on social assistance grants. He
was able to progress to grade 9 but left school in
grade 10 because
of financial constraints. He was able to secure casual odd jobs by
which to contribute to the household. The report
records that:
“
9.6 The
accused grew up in a secure and strict family environment. His mother
and maternal family were always protective and
wanted the best for
their children.
9.7
The accused shares positive interpersonal relationships with his
mother and maternal family in general. The
accused is able to
communicate openly with them, and when faced with challenges he did
not hesitate to share his fears and troubles
with them.”
[29]
Accused 3
was raised by his mother and maternal aunt. His father and mother
separated before the accused was born. The report records
the
following:
“
5.5 The
accused reported that he had a normal childhood. He mentioned that he
could not recall any negative experiences that
could have impacted
his development. He reported that whilst growing up he attended
church with his grandmother although he subsequently
lost interest
and stopped attending church services. He stated that his household
was governed by rules and curfew times. The accused
indicated that
his mother tried her best to discipline him.
5.6
According to the accused, things took a turn in his life when he
started smoking dagga. He reported that his
behaviour started to
change bit by bit. He mentioned that he neglected his duties at home.
The accused’s mother reported
that the accused started
displaying behavioural challenges at school and she mentioned that
she was often called to school meetings
to inform her about the
accused’s behaviour. She mentioned that the accused bunked
school and eventually stopped attending
school altogether.
5.7
According to the accused’s mother, she motivated the accused to
change his way and at times shouted
or instilled corporal punishment.
She mentioned that sometimes the accused retaliated. The accused
reported that both his mother
and sister disciplined him however he
indicated that his behaviour worsened instead.”
[30]
It appears
elsewhere in the report that the accused, whilst attending Thubelihle
High School in grade 8, secured a bursary from
the Mzingisi
Foundation School of Excellence for soccer. He was able to enrol at
Ithembelihle Comprehensive School in grade 9 where
tuition, uniform,
stationery and meals were paid for. He, however, dropped out of
school in grade 10. It appears it was then that
he commenced smoking
dagga. According to the accused, this led him to make poor choices.
He has, however, been able to stop smoking
dagga in the period before
his arrest.
[31]
As
indicated above the youthfulness of the accused does not, on the
basis of acceptable evidence point to immaturity. On the contrary,
the conduct of each of these young men during the commission of these
offences points to careful and calculated action on their
part in the
commission of the offences. There is, in my view, no basis to find
that immaturity played any role in explanation of
their involvement.
[32]
The accused
each maintain their innocence in relation to the offences. Based upon
this they take no responsibility for the commission
of the offences
or the ensuing consequences.
[33]
It was
argued on behalf of each of accused 1, 2 and 3 that substantial and
compelling circumstances are to be found in their youthfulness
and
lack of previous convictions viewed cumulatively in the light of
their personal circumstances.
[34]
As is
evident from the personal circumstances of these accused, set out
above, they enjoyed relatively stable family environments.
It is true
that they did not have the benefit of a father figure in their
formative years and that their socio-economic circumstances
were
poor. This is a circumstance which all too frequently is observed in
the cases that come before this court. No doubt it plays
a role in
the disintegration of family units and even communities, but there is
no necessary causal nexus between these circumstances
and the choice
of criminal conduct which serves as a factor reducing the moral
blameworthiness of individuals.
[35]
I shall
accept, however, that these circumstances, not of their making, are
to be considered as generally mitigating. I am unable
to find however
that these factors, weighed cumulatively, constitute substantial and
compelling circumstances which would warrant,
on that basis, a
departure from the prescribed minimum sentences which apply. The
mitigating features to be found in the accused’s
personal
circumstances pale into insignificance when regard is had to the
nature and seriousness of the crimes they have committed.
The
seriously aggravating nature of their conduct suggests that far from
being young and immature these young men are callous and
uncaring. In
the case of accused 1, in particular, his conduct suggests that he
is, in fact, a danger to society.
[36]
Before
dealing with the broader question of proportionality which this court
is required to consider in relation to the sentences
it imposes, it
is necessary to deal briefly with the circumstances of accused 4.
[37]
He is 43
years old. He has previous convictions which date back over several
years. In 1994, he was convicted of theft. In that
same year, he was
convicted of housebreaking with intent to steal and theft. In 1995,
1996 and 1997 he was again convicted of theft.
In 2003 he was
convicted of robbery and offences in terms of the
Arms
and Ammunitions Act
[10]
.
He was sentenced to 18 years imprisonment. Accused 4, in the light of
this latter conviction is to be dealt with as a repeat offender.
[38]
Accused 4’s
personal circumstances, as placed on record by Mr
Saziwa
,
are the following. He is an unmarried father of a daughter aged 22
years and a son, aged 3 years. He matriculated in 2007 and
has since
acquired an N6 qualification in Business Management, Marketing
Management and Financial Management at the time of his
arrest. He
admitted during his evidence at trial that he earned an income from
selling drugs. There is nothing in accused 4’s
personal
circumstances which would qualify as substantial and compelling
circumstances.
[39]
This brings
me to consideration of the appropriateness of the prescribed
sentences. I deal firstly with the sentence of life imprisonment
in
respect of count 5. A sentence of life imprisonment is the most
severe sentence that a court may impose. It is for this reason
to be
reserved for the most serious or egregious offences. Its imposition
suggests that there is little or no prospect that the
accused can be
rehabilitated or that the accused poses a danger to society and that,
in the interests of the safety of the community,
the accused should
be incarcerated, in effect, for the rest of his natural life.
[40]
The
starting point is that the sentence has been given the imprimatur of
an appropriate sentence for certain categories of crimes.
Due weight
must be given to this policy determination made by the legislature.
The court must, however, consider whether it is,
in the circumstances
of the case, a proportionate sentence. If found to be
disproportionate then there are substantial grounds
justifying a
departure. It was noted in
S
v Mhlakaza and Another
[11]
:
“
The object of
sentencing is not to satisfy public opinion but to serve the public
interest. (Compare Ashworth & Hough 'Sentencing
and the Climate
of Opinion' [1996] Crim LR at 776; S v Mafu
1992 (2) SACR 494
(A) at
496g-j.) A sentencing policy that caters predominantly or exclusively
for public opinion is 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. In this
context the approach
expressed in S v Makwanyane and Another
[1995] ZACC 3
;
1995 (2) SACR 1
(CC) at 38-9,
paras 87-9 (per Chaskalson P) applies mutatis mutandis: public
opinion may have some relevance to the enquiry, but,
in itself, it is
no substitute for the duty vested in the court; the court cannot
allow itself to be diverted from its duty to
act as an independent
arbiter by making choices on the basis that they will find favour
with the public.”
[41]
The
proportionality analysis involves, in each instance, the careful
balancing exercise referred to above. In this case, the killing
of Mr
Goduka
was a senseless and gratuitous act which, on the available evidence,
could not have advanced the objective of the group of robbers.
Accused 1 acted with direct intention to kill. Although it was found
that each of the accused had the requisite
mens
rea
in
respect of the murder the form of
mens
rea
differed from that of accused 1. Accused 2, 3 and 4 played no direct
role in the murder. For this reason and for the purpose of
considering the proportionality of the sentence ordained, I shall
accept that their moral blameworthiness is somewhat reduced.
[42]
In
S
v Langeni
[12]
it was held that:
“
[25] In
determining the appropriate sentence the totality of the appellant's
conduct and the consequences thereof must be considered.
The concerns
of society must be evaluated against the facts of the appellant's
conduct. This would include the number of crimes
committed, the
nature of the crimes, whether they were planned or premeditated, the
degree of violence and attitude of the perpetrator,
the period over
which they were committed, the nature of the weapons used and
injuries and any other harm inflicted, whether the
victims posed a
threat to the appellant, and what the long-term impact on them was,
as a result of the crimes. Guidance can certainly
be found in other
cases, but each case has to be decided on its own facts, taking into
account the overall needs of the society
and the circumstances of the
accused.”
[43]
When I
consider the nature of the crime for which accused 1 has been
convicted in count 5 I am unable to find that the ordained
sentence
is disproportionate. I come to this conclusion notwithstanding his
age and personal circumstances. I am accordingly of
the view that no
substantial and compelling circumstances exist which warrant a
departure from the prescribed sentence.
[44]
In the case
of accused 2, 3 and 4 that sentence would, in my view, be
disproportionate having regard to the role they played. Nevertheless,
a very lengthy sentence will be appropriate.
[45]
I now turn
to the proportionality of the sentences prescribed for counts 1, 6, 7
and 9. In my view, the prescribed sentence in respect
of count 1
(i.e. 15 years) does not adequately mark the seriousness of the
offence nor the brazen conduct of the accused. This,
in my view, is
an instance where this court ought to impose a sentence in excess of
that prescribed. In
S
v Jaxa
[13]
Plasket
J said:
“
Society has a
legitimate interest in seeing that those who devastate the lives of
people through the use of violence, and who use
violence to steal
from others are appropriately punished and that the punishment
imposed reflects societal censure and an appropriate
measure of
retribution.”
[46]
Armed
robberies where businesses are the targets are prevalent not only in
this court’s jurisdiction but throughout the country.
Despite
the use of more and more sophisticated security measures business
premises continue to be targeted by criminal gangs. In
this instance
the business targeted was located in a mall frequented by large
numbers of the public enjoying all of the myriad
facilities offered
in such centres. The robbery was executed in the face of high levels
of security and despite the attendant risk
of innocent persons being
harmed.
[47]
In the case
of the other prescribed sentence little need be said. They too, in my
view, are both appropriate and proportionate when
regard is had to
the overall circumstances and the nature of the events as a whole.
[48]
That leaves
for consideration the question of the cumulative effect of the
sentences to be imposed. Two aspects require consideration.
The first
is whether the sentences to be imposed for certain of the offences
should not be served concurrently because of the close
interrelationship between the offences. The second is the
proportionality of the sentences cumulatively considered.
[49]
In relation
to the first question, it was argued by defence counsel that all of
the separate offences in effect formed part of a
single enterprise
and that, for this reason, the sentences ought to run concurrently.
[50]
The
accepted evidence establishes that the accused went to the Greenacres
Mall on the day in question to execute a prior plan to
rob Fischer’s
Jewellers. A vehicle was secured to transport them there and to serve
as a getaway vehicle. It is apparent
that the getaway vehicle changed
position slightly whilst the four accused and
Mantana
were in the mall executing the robbery. It is also apparent that the
five robbers fled to the getaway vehicle but that it had been
abandoned.
[51]
Given these
facts, it seems to me appropriate to regard the offences committed in
the execution of the robbery up to this stage
as part of a single
course of events. Accordingly, it will be appropriate that the
sentences to be imposed upon the relevant accused
in respect of the
robbery, the attempted murder and possession of the firearms and
ammunition be served concurrently. This will
also ameliorate the
cumulative effect of thereof.
[52]
However, as
was quite properly argued by Ms
Swanepoel
,
the attempted robbery of Mr
George
(count 3) and the robbery of Mrs
Slabbert
(count 6) ought to be viewed in a different light. Once the accused
failed in their attempted getaway as planned and while being
pursued
by the police they were then faced with a choice. They could have
surrendered. Yet, they did not. They immediately acted
in concert to
attempt to rob Mr
George
whilst shots were being fired between their group and the police.
Still later accused 1, 2 and 4 executed the robbery of Mrs
Slabbert
.
To regard all of these actions as one single continuous criminal act
for purposes of sentence would ignore not only the distinct
nature of
the crimes but also the several separate instances of volition which
underlined the intention to commit the further criminal
conduct. In
my view the sentences to be imposed ought not, for this reason, to be
served wholly concurrently. It will, however,
be appropriate to order
that a portion of these sentences be served concurrently with the
other sentences imposed in order to mitigate
the cumulative effect
and to ensure that it is proportionate to the crimes.
[53]
In respect
of each of the offences a period of direct imprisonment is
appropriate. Accused 4 has been additionally convicted on
an
alternative count of money laundering (count 11). In essence, this
concerns the use of a stolen vehicle for the purpose of committing
the offences whilst knowing that it is stolen. In my view, the
sentence imposed in this count ought to run concurrently with
the
sentence imposed in respect of count 1.
[54]
It is
necessary to remark briefly on the sentence to be imposed in respect
of the unlawful possession of a firearm (Accused 1 and
2 only). For
the reasons already advanced there are no substantial and compelling
circumstances present. Whilst sentences of the
order prescribed may
be regarded, in cases of possession simpliciter, as severe, it cannot
be so in instances such as the present.
In this instance, the
possession served the function of equipping the accused with the
means to commit robbery without any substantial
subterfuge. The
accused came armed and were decidedly dangerous, using the possession
of semi-automatic weapons to strike fear
and to subdue. Moreover to
overcome any resistance by superior force and violence where
necessary. The weapons and ammunition they
possessed were tools of
their trade. In my view, these circumstances warrant the sanction
imposed by law.
[55]
Finally, a
word should be said about two aspects addressed by counsel in
submission on mitigation. The first concerns the question
of remorse
and rehabilitation. As already stated none of the accused accepted
any responsibility for their conduct. In the
probation reports,
it is recorded that accused 1, 2 and 3 maintain their innocence
persisting in their denial of any involvement.
This is of course
against the overwhelming evidence. Nevertheless, they are entitled to
maintain their innocence. That is their
right. The fact that they do
not express remorse cannot serve to negative any mitigation nor as an
aggravating factor. The persistence
in a claim to innocence does,
however, carry a consequence. The obvious consequence is that there
can be no acknowledgement of
individual or collective responsibility
for the criminal conduct and its consequences. In the absence of
responsibility and genuine
contrition rehabilitation is unlikely.
[56]
As Ponnan
JA remarked in
Matyityi
(
supra
)
at par [13]:
“
There is,
moreover, a chasm between regret and remorse. Many accused persons
might well regret their conduct, but that does not
without more
translate to genuine remorse. Remorse is a gnawing pain of conscience
for the plight of another. Thus genuine contrition
can only come from
an appreciation and acknowledgement of the extent of one's error.
Whether the offender is sincerely remorseful,
and not simply feeling
sorry for himself or herself at having been caught, is a factual
question. It is to the surrounding actions
of the accused, rather
than what he says in court, that one should rather look.”
[57]
This
passage reflects also the intersection between responsibility,
remorse and rehabilitation. Although these concepts may not
be
absolutely co-terminus, there can be no doubt that the prospect of
rehabilitation can more readily be inferred when a criminal
takes
responsibility for the conduct resulting in his/her conviction.
[58]
It is so
that the age of accused 1, 2 and 3 suggest, at least notionally, that
there must be such a prospect of one day returning
to the bosom of
society committed never to offend again. There is however no evidence
upon which it may be found that this is very
likely, to such extent
that it can meaningfully reduce the period of incarceration otherwise
required.
[59]
Finally,
there is the question of mercy. The argument advanced particularly on
behalf of accused 1, 2 and 3 was that the court should
in its general
discretion impose a sentence or sentences which are tinged with
mercy. This is what a court does in the ordinary
course. It is not an
overarching discretionary discount applied to a sentence. It is a
factor which animates what the court regards,
taking all of the
circumstances into account, to be a just, fair and reasonable
sentence which meets its objects.
[60]
In the
result the accused are sentenced as follows:
Accused
1
Count 1:
Robbery with aggravating circumstances – 20 years imprisonment;
Count 2:
Attempted murder – 10 years imprisonment;
Count 3:
Attempted robbery with aggravating circumstances – 8 years
imprisonment;
Count 5:
Murder – life imprisonment ;
Count 6:
Robbery with aggravating circumstances – 15 years imprisonment;
Count 7:
Unlawful possession of a firearm – 15 years imprisonment;
Count 8:
Unlawful possession of ammunition – 3 years imprisonment
It is ordered that the
sentences in counts 1, 2, 7 and 8 shall run concurrently.
It is further ordered
that 3 years of the sentence on count 3 and 10 years of the sentence
on count 6 shall run concurrently with
the sentence on count 1.
In terms of s 39(2)(A)(i)
of Act 111 of 1998 the determinate sentences imposed shall run
concurrently with the sentence imposed
on count 5.
Accused 2
Count 1:
Robbery with aggravating circumstances – 20 years imprisonment;
Count 2:
Attempted murder – 10 years imprisonment;
Count 3:
Attempted robbery with aggravating circumstances – 8 years
imprisonment;
Count 5:
Murder – 25 years imprisonment;
Count 6:
Robbery with aggravating circumstances – 15 years imprisonment;
Count 9:
Unlawful possession of a firearm – 15 years imprisonment;
Count 10:
Unlawful possession of ammunition – 3 years imprisonment
It is ordered that the
sentences in counts 1, 2, 5, 9 and 10 shall run concurrently.
It is further ordered
that 3 years of the sentence on count 3 and 10 years of the sentence
on count 6 shall run concurrently with
the sentence imposed on count
5.
Accused 3
Count 1:
Robbery with aggravating circumstances – 20 years imprisonment;
Count 2:
Attempted murder – 10 years imprisonment;
Count 3:
Attempted robbery with aggravating circumstances – 8 years
imprisonment;
Count 5:
Murder – 25 years imprisonment;
It is ordered that the
sentences on counts 1, 2 and 5 shall run concurrently.
It is further ordered
that 3 years of the sentence on count 3 be served concurrently with
the sentence on count 5.
Accused 4
Count 1:
Robbery with aggravating circumstances – 20 years imprisonment;
Count 2:
Attempted murder – 10 years imprisonment;
Count 3:
Attempted robbery with aggravating circumstances – 8 years
imprisonment;
Count 5:
Murder – 25 years imprisonment;
Count 6:
Robbery with aggravating circumstances – 15 years imprisonment;
Count 11:
First alternative to count 11 – Money laundering – 5
years imprisonment.
It is ordered that the
sentences on counts 1, 2, 5 and 11 run concurrently.
It is further ordered
that 3 years of the sentence on count 3 and 10 years of the sentence
on count 6 shall run concurrently with
the sentence on count 5.
G.G.
GOOSEN
JUDGE
OF THE HIGH COURT
Obo
the state:
Adv Z.L Swanepoel
NDPP, Uitenhage Road,
North End, Port Elizabeth
Tel: (012) 842
1400
Obo
Accused 1:
Mr Z. Ngqeza
Zolile Ngqeza
Attorneys, North End, Port Elizabeth
Tel: (041) 487 2178
Obo
Accused 2 and 3:
Mr D. Erasmus
Obo
Accused 4:
Mr K. Saziwa
Legal Aid South
Africa, Port Elizabeth, North End, Port Elizabeth
Tel: (041) 408 2800
[1]
2001 (1) SACR 469 (SCA)
[2]
[2001] ZACC 16
;
2001 (3) SA 382
(CC)
[3]
2009 (1) SACR 552 (SCA)
[4]
(
supra
) par [14]-[15]
[5]
(99/10)
[2010] ZASCA 82
;
2010 (2) SACR 419
(SCA) (31 May 2010)
[6]
2010 (2) SACR 2017
(SCA) at par [89]
[7]
Mrs Swanepoel pointed out that there is some confusion regarding the
age and identity book details of accused 1 since different
ages and
dates of birth are given. Nothing significant turns on this. For
present purposes it is to be accepted that he was 22
years of age as
at the date of commission of the offences.
[8]
Act No, 75 of 2008
[9]
2011 (1) SACR 40
(SCA) at par 14
[10]
Act No, 75 of 1969
[11]
1997 (1) SACR 515
(SCA) at 518 e-g
[12]
2012 (1) SACR 413
(ECG) at par 25
[13]
Unreported EC 10/2009 par 10 cited in S v Langeni (
supra
) at
par 27