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[2019] ZAECPEHC 86
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S v Kammies and Another (CC5/2018) [2019] ZAECPEHC 86 (13 December 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case
No: CC 5/2018
Date
heard: 11 December 2019
Date
delivered: 13 December 2019
REPORTABLE
In
the matter
between:
THE
STATE
And
DAMIAN
KAMMIES
Accused 1
WARREN
STEYN
Accused 6
JUDGMENT
Goosen
J:
[1]
Accused 1 has been convicted of housebreaking; kidnapping; possession
of a firearm and murder. Accused 6 has been convicted of
housebreaking; kidnapping and murder. As was noted in the main
judgment,
the evidence establishes that at the time the deceased was
removed from his home the accused were acting in concert exhibiting a
common purpose in relation to the commission of the offences. The
conviction for murder was founded upon the drawing of an inference
of
unlawful and intentional conduct premised upon the proven facts.
[2]
In terms of s 51(1) of Act 105 of 1997 (as read with Schedule 2) a
court
shall sentence a person it has convicted of murder committed by
a person or group of persons acting in the execution or furtherance
of a common purpose, to life imprisonment.
[3]
Section
51(1)(c) of the Act prescribes a sentence of not less than 5 years
for a first offender
[1]
for
crimes set out in Part IV of Schedule 2. Of relevance for present
purposes are the crimes of kidnapping and breaking and entering
premises with the intent to commit a crime. The qualification which
applies in that the accused “
had
with him or her at the time a firearm, which was intended for use as
such, in the commission of such offence
.”
It follows from this qualification, on the basis of the finding set
out in the main judgment, that in respect of accused
6, these
prescribed sentence provisions do not apply.
[4]
It is trite
that the sentencing court retains discretion in regard to the
imposition of prescribed sentences. If the court is satisfied
that
there are substantial and compelling circumstances which justify a
departure from such sentence then it is at large to determine
an
appropriate sentence. The court is obliged to depart from the
prescribed sentence if that sentence would be disproportionate
and
bring about an injustice
[2]
.
[5]
When deciding on an appropriate sentence it is necessary to consider
the
nature of the crime, the interests of society and the
individualized interests of the criminal to be sentenced. These
interests
must be balanced carefully to ensure that the object and
purpose for which punishment is imposed can be achieved.
[6]
Consideration of the triad of factors usually commences with
reflection
upon the nature of the crime and the circumstances in
which it is committed. There are sound reasons for doing so. It is
usually
essential to understand what aberrant behaviour is being
brought to account in the scales of justice before the weight of the
counterbalance
can be determined.
[7]
In this case, the known facts point to the commission of a spate of
crimes
driven by a desire to correct an “
outrage”
perpetrated against a comrade and a desire to recover a firearm.
The narrative of an underlying motive did not, in my view, add
probative value in the discharge of the burden of proof for purposes
of conviction. But, in the context of sentence proceedings,
different
considerations apply.
[8]
Despite denials of association with street-gang activities, and in
particular
the Spotbouer gang, the weight of the evidence establishes
beyond doubt that accused 1 and 6 are indeed active members of the
Spotbouer
gang. In the case of accused 1, the evidence points to his
leadership of that gang. The evidence also establishes that the gang
operates from a complex of apartments on Glendenning Road,
Schauderville (the Glendenning flats).
[9]
The events at 67 Gideon Street arose because of an earlier incident
in
which the witness, Neville Bruintjies, had dispossessed accused 6
of a firearm. It is clear from the evidence of Luciano Kiddo that
the
accused were in pursuit of Neville Bruintjies and that they were
prepared to target anyone associated with him. Hence the attack
on 67
Gideon Street, the kidnapping of the deceased and, ultimately the
murder of the deceased.
[10]
It is, in this light, that the offences must be seen. Each of the
offences, on its own,
is a very serious offence. The forceful and
violent invasion of a home by armed thugs is a terrifying reality for
far too many.
The abduction of the deceased must have induced in him
sheer terror and helplessness. The post-mortem report records severe
blunt
force trauma to the chest. We do not know how this was
inflicted but it seems probable that he was violently beaten before
he was
executed with two gunshots to the head. The object of this
abduction, assault and murder was to establish the whereabouts of
Neville
Bruintjies with whom the deceased was associated.
[11]
This conduct speaks of quite extraordinary callousness on the part of
the accused. It speaks
also of a chilling sense of moral and legal
impunity, where an affront to the integrity of the gang order is met
with deadly, fatal
punishment. Many parts of this city exist under a
siege of violence perpetrated by gangs. Killings by shooting are an
almost daily
occurrence. The gangs, of which there are many, operate
brazenly outside of the framework of the law and the codes of
civilized
conduct.
[12]
The consequences of this lawlessness are invariably deeply
destructive of the values upon
which we found our Constitutional
order. In aggravation of sentence the state tendered a victim impact
statement prepared by the
father of the deceased. The deceased’s
sister also testified to the impact that the death of the deceased
has had upon the
family. Both testify to the profound loss suffered
by the family and the fact that it is the living parents, siblings
and children
who must bear the loss. The deceased has four children.
As a result of the trauma experienced by his death their mother broke
down
and descended into a life of alcohol abuse, resulting in further
trauma to the children.
[13]
Mrs Brooks, the deceased’s sister, described how it was
necessary to engage in a
protracted battle to secure custody and care
of the children so that they could be protected. That has now
occurred and the children
are being cared for by one of the
deceased’s sisters. The family, however, is struggling
financially. The children are cared
for with the assistance of child
support grants, although this is insufficient to meet their needs as
they progress into their
teenage years.
[14]
These are the practical and often dire consequences that families
suffer when a father
or mother dies as a result of criminal conduct.
But it is the psychological and emotional trauma that is more
devastating. Mrs
Brooks gave insight into this trauma when she
explained that it has been left to the siblings to attempt to answer
the children
when they want to know why this happened to their
father. No answer is satisfactory. The deceased’s father,
Sulayman Abdullah
stated that his son grew up under a strict
religious upbringing. His son assisted him in his religious work in
the community. As
a result the deceased was well-loved and respected
in his community. His children regarded him as a hero. Following
Mohammed Abdullah’s
murder his youngest son, then aged 11
years, did not attend school for a year. The impact on the family was
devastating. Mr Abdullah
said in his statement that he had not been
able to attend the trial because he could not face the accused.
He suffers from
depression and insomnia and is currently on
medication. He said his son did not deserve to die in the manner in
which he did and
to be discarded on the roadside like a dead animal.
[15]
It is to correct such injustices that the courts impose punishments.
Our system of criminal
justice recognizes that societal retribution
by way of incarceration serves to vindicate the rule of law and it
serves to affirm
individual accountability for wrongs against the
society. It seeks to foster the rule of law in the face of both
individual and
collective violations. It does so by enforcing
individual accountability for criminal conduct. It is for this reason
that harsh
punishments are prescribed as a point of departure for
certain categories of crime. But, no less significant is the
recognition
by our system of justice that human beings are fallible;
that transgressions may be driven by circumstances and, equally that
rehabilitation
is possible.
[16]
For this reason, courts take into consideration the individual’s
circumstances; his
or her attitude to the crime and they attempt, so
far as is reasonably possible, to fashion a sentence which takes into
account
all of the relevant factors. It is this that constitutes an
appropriate sentence.
[17]
Neither of the accused testified in mitigation of sentence. Their
personal circumstances
were placed on record from the bar.
[18]
Accused 1 is 36 years old. He is unmarried but is the father of four
children from three
mothers. The children live with and are cared for
by their respective mothers. The youngest are 7-year-old twins. His
other children
are 10 years and 15 years old respectively. The
accused provided for their maintenance from his income earned
providing school
transport in his vehicle.
[19]
Accused I
has a matric pass. After completing school he was employed by the
Coca Cola Company as a marketer for 10 years. He lost
his employment
as a result of being held in custody for an offence. He was acquitted
of that offence. He thereafter was unable
to obtain formal
employment. Accused 1 has one previous conviction. He was convicted
on 5 August 2015, in terms of s 37 of the
General
Law Amendment Act
[3]
,
being in possession of suspected stolen property. He was sentenced to
12 months imprisonment.
[20]
Mr Nel argued that regard should be had to the social milieu in which
the accused found
themselves. He pointed to the prevalence of gang
activities; the very high incidence of gun-related violence and the
fear that
grips the community. He argued that it is against this
background that the conduct of the accused should be assessed. The
incident
in which the firearm was taken from accused 6 would have
generated significant fear. This, he suggested, coupled with the
consumption
of alcohol at the braai would account for the desire to
recover the firearm and, therefore, the conduct of the accused.
[21]
All of these factors, namely a productive member of the community, a
father of four young
children for whom he provides, the social milieu
and consumption of alcohol ought to persuade the court, it was
argued, that there
are substantial and compelling reasons to not
impose life imprisonment.
[22]
The obvious difficulty with the argument is that the accused himself
provided no such explanation
for his conduct. His motivation and what
might have induced an otherwise law-abiding and responsible person to
engage in such extraordinarily
callous and calculated violence cannot
be inferred from facts that he at no stage admitted. He denied any
involvement and maintains
such denial. It is difficult to understand
therefore on what basis this court might come to the conclusion that
his moral blameworthiness
was reduced by reason of the interplay of
the factors raised by Mr Nel.
[23]
I shall accept that accused 1 has been able to maintain his children
and, in this, that
he has functioned as a responsible parent. I shall
also accept, in his favour, that his previous conviction is not
relevant for
present purposes. I am, however, unable to find that his
personal circumstances are such as would compel me not to impose the
prescribed
sentence. I cannot accept the argument premised upon the
social milieu and the prevalence of gang and gun-related violence as
being
a mitigating factor. The evidence established that accused 1 is
a key member, if not leader of, the Spotbouer gang. It operates
out
of the Glendenning flats.
[24]
It seems to me ironic that a key participant in the perpetration of
gang-related criminal
conduct, one who chooses to live by its codes
and dictates, should plead for mercy on the basis of the destroyed
social fabric
that arises from precisely such choices.
[25]
I am satisfied that in the case of accused 1 there are no substantial
and compelling circumstances
present. I will deal hereunder with the
broader questions regarding proportionality of the prescribed
sentence.
[26]
Accused 6 is 26 years old. He has no previous convictions. He has a
brother. He has no
children. He was born in Cape Town. His father
abandoned him when he was still very young. As a result his mother
relocated to
Port Elizabeth where they lived with his grandmother.
His mother passed away when he was 7 years old. He lived with his
grandmother
until she passed away in 2016. At that stage he was
living there with two younger cousins. After his grandmother’s
death,
he cared for his cousins.
[27]
After leaving school in Grade 10, accused 6 was employed as a casual
labourer at the Coca
Cola Company. Thereafter he assisted a friend of
his who was involved in the installation of satellite TV systems.
[28]
He had been in custody on another matter until his release on bail on
18 November 2016.
A party was held to celebrate his release and he
had consumed alcohol, it was suggested until he had “
passed
out
”.
[29]
Mr Crompton also sought to frame an argument based upon the social
milieu of gang-related
violence, centred as he put it on the
“
incubator
” that was Glendenning flats. The
argument does not succeed for reasons similar to those relating to
accused 1.
[30]
It is indeed so that accused 6 is a young man with no previous
convictions. These are weighty
considerations when considering what
would be an appropriate sentence. It is trite that the length of the
period of imprisonment
imposed upon a young offender should not,
generally, be such as would destroy the person. The period should, so
far as reasonably
possible, be for the shortest possible period.
However, this general starting point when dealing with youthful
offenders does not
preclude the imposition of even the most severe
penalty. That is so because even young offenders perpetrate
horrendous crimes.
When they do so the nature of those crimes will
generally outweigh the plea based on youthful immaturity.
[31]
In this instance we are dealing with a crime which invokes
abhorrence. An innocent man
was brutally and callously murdered
because of his association with another man with whom the accused
were aggrieved. While there
is no evidence to point to a specific
role played by accused 6 in the commission of these offences, it is
clear that he joined
in and continued to associate himself with his
co-accused throughout.
[32]
It cannot be ignored that he had only just been released on bail in
relation to another
matter. On the evidence he was in possession of a
firearm earlier that evening. The firearm was taken from him after a
violent
scuffle with Bruintjies. What followed is the sequence of
actions which, some hours thereafter, saw the deceased brutally
murdered.
These are not the actions of a callow youth driven by
immaturity. They are instead actions of a hardened man.
[33]
In my view the gravity of the offences committed by the accused
outweigh the mitigating
factors of accused 6’s youthfulness and
his personal circumstances.
[34]
An aspect which is necessary to consider is the period that the
accused have spent in custody
awaiting finalization of the case. Both
were arrested on 19 December 2016. They were denied bail and have
been in custody on this
matter since that date, a period of three
years.
[35]
Our courts
have on several occasions called attention to the need for
legislation to be enacted to enable a trial court to ante-date
a
sentence so that account may be taken of the time that an accused has
spent in custody awaiting trial.
[4]
[36]
In
Director
of Public Prosecutions, North Gauteng: Pretoria v Gcwala and
Others
[5]
Lewis JA reiterated what was held in
S
v Radebe and Another
[6]
,
that “
the
sentencing court should consider in all cases whether the period of
imprisonment proposed is proportionate to the crime committed,
taking
into account, for that purpose, the period spent in custody awaiting
trial
.”
This reflects the principle set out by Cachalia JA in
S
v Dlamini
[7]
that:
“
[41] . . . It is
trite that the period an accused is held in custody while awaiting
completion of his trial should be taken into
account when deciding on
the appropriate sentence. This is done by making the period of
imprisonment actually imposed shorter than
it would otherwise have
been. However, the courts have not spoken clearly on how to calculate
this period. One approach has been
to do an inexact subtraction;
another is to deduct the period actually spent; yet another is to
treat the time spent in custody,
at the very least, as equivalent to
the time served without remission; and a fourth, more adventurous
method is to treat the period
as equivalent to about twice the
length, because of the harsher conditions that awaiting-trial
prisoners are subjected to in comparison
with the conditions of
sentenced prisoners.”
[37]
There is,
of course, no rule of thumb by which this calculus is to occur. The
idea that the awaiting trial period is to be treated
as double that
period at the stage of sentencing has been rejected.
[8]
What the authorities require is that the period of imprisonment
imposed should be reduced or ameliorated in some degree in the
light
of the time spent in custody awaiting trial.
[38]
In my view, a conceptual difficulty arises when the sentence under
consideration is one
of life imprisonment rather than a determinate
sentence. The reason is not hard to discern. A sentence of life
imprisonment means
precisely what it states. It is a sentence which
extends for so long as the prisoner is alive. It has no determinate
maximum period.
It cannot be “
reduced
” by the
period spent in custody awaiting trial. It can only be ameliorated on
that basis if it is not imposed.
[39]
A
sentencing court determines the maximum period of imprisonment to be
served by the convicted person. It makes that determination
upon
consideration of all relevant factors before it. It does not have any
regard to possible parole (save in respect of sentences
where s 276B
may be relevant).
[9]
It is
indeed improper to take into account the possibility of parole when
determining a suitable sentence.
[10]
[40]
It is this
that gives rise to the sentencing conundrum. If the time spent
awaiting trial is not in itself a substantial and compelling
circumstance
[11]
how then is
the period so spent to be brought to account in reducing an
indeterminate sentence? The only basis upon which such
calculus can
occur is with reference to the “
parole
exclusion
”
period
[12]
which applies to a
sentence of life imprisonment. But to do so involves the sentencing
court in consideration of the possibility
of parole in the
determination of what is a suitable sentence. There is also an
anomaly in logic. A sentence of life imprisonment
is the most
severe sentence that a court may impose precisely because it is
indeterminate in length. It is saved from being a cruel
and inhuman
punishment because of the possibility of parole. The possibility of
parole is a function of future conduct on the part
of a prisoner and
the policy determinations made by the executive to which expression
is given by the legislature. Life imprisonment
is, both at the level
of the type of sentence and at the level of policy, wholly different
to a determinate sentence. It has as
its object the removal of the
convicted person from society.
[41]
In the case of a determinate sentence the possibility of parole is
determined by policy
with reference to the maximum period of the
sentence. Thus, a person sentenced to 10 years imprisonment may be
released on parole
after serving half that sentence i.e. after 5
years. A reduction in the determinate sentence by reason of time
spent awaiting trial
(to say 8 years) has the effect of reducing the
maximum period until parole may be granted (to say 4 years).
[42]
It is not
difficult to see that this calculus may give rise to significant
sentencing difficulties. As Goldstein J remarked in
S
v Vilikazi
[13]
:
“
A difficulty which
arises is that the official sentence of this Court is then
approximately two years lighter than it should have
been in each
case. This lighter sentence then becomes part of the particular
accused's official record of previous convictions,
thereby possibly
misleading any court which may subsequently convict him, and also the
prison authorities on the seriousness of
his crime. Then, too, the
lighter sentence misleads the news media and more importantly the
public which has an important
interest in sentence, and especially in
its deterrent function.”
[43]
Although
our courts have held
[14]
that
the period of awaiting trial in prison is to be taken into account it
is all but impossible to do so in the context of considering
life
imprisonment, without elevating the pre-trial incarceration period to
a substantial and compelling circumstance, which it
plainly is not.
[44]
In this instance, the accused have spent 3 years in custody awaiting
trial. The other circumstances
discussed above point to the absence
of substantial and compelling circumstances which would warrant a
departure.
[45]
Imposing life imprisonment would mean that they will only qualify for
consideration of
parole in 25 years. That means in effect that they
will have been incarcerated for 28 years before being considered for
parole.
Does that fact render the sentence of life imprisonment
disproportionate? The answer must be no, since the proportionality of
the
sentence (as a maximum period) has nothing to do with whether or
when they may be released on parole.
[46]
If the period spent awaiting trial were to tip the scales in such
proportionality assessment
it would give rise to absurd results since
the sentencing court would necessarily be involved in equating life
imprisonment with
the parole exclusion period (of 25 years) and then
be evaluating whether the total period spent in custody was the
appropriate
sentence.
[47]
How then does the prisoner get the “
benefit
” or
credit for time already served before sentencing? The answer, it
seems to me, is not by reduction of the indeterminate
sentence but
rather at the stage of parole consideration. It is at that stage that
the authorities responsible for deciding whether
or not to place the
prisoner on parole must take into account the period that the
prisoner was incarcerated whilst awaiting trial.
In this way the
prisoner may yet receive “
credit
” for such period.
Such “
credit
” is not in any manner illusory since
it is likely to conduce to a decision favouring parole rather than
not.
[48]
The better course, however, would be to provide, by way of
legislation, for the court to
ante-date a sentence to an appropriate
date in order to take into account lengthy periods of pre-trial
incarceration. Our courts
have on several occasions called upon the
legislature to effect an appropriate amendment to the legislation
which would allow the
sentencing court to ante-date its sentence to a
date which would take cognisance of the effect of a long period of
incarceration.
In my view, such an amendment will address the obvious
difficulties which arise in relation to the imposition of life
imprisonment
and ought to enjoy the urgent attention of the
legislature.
[49]
For the reasons set out above I am not persuaded that there is a
rational basis upon which
the time spent awaiting trial can be
brought to account in the context of an indeterminate period of
imprisonment such as life
imprisonment. I have already dealt with the
fact that such mitigation as is present is outweighed by the
objective gravity of the
offences. There are, in my view, no
substantial and compelling circumstances present. I do not consider
that a sentence of life
imprisonment for the murder of Mohammed
Gamaldien Abdullah is disproportionate. On the contrary, in the
circumstances of this case,
it is a just sentence. In so far as the
other prescribed sentences are concerned there are, in relation to
accused 1, no compelling
reasons to depart from them. As indicated no
prescribed sentences apply to these offences in the case of accused
6.
[50]
The prescribed sentences are not, in my view, unduly harsh even in
relation to accused
6. I shall, however, impose lesser periods of
imprisonment given that he was not personally in possession of a
firearm at the time
of commission of the offences.
[51]
It follows as a matter of law that the sentences imposed in respect
of counts 1, 2 and
3 will run concurrently with the sentence on count
5.
[52]
I therefore impose the following sentences:
Accused 1:
Count 1 (Housebreaking)
- 5 years
imprisonment;
Count 2
(Kidnapping)
- 5 years
imprisonment;
Count 3 (Unlawful
possession of Firearm) - 5
years imprisonment;
Count 5
(Murder)
- Life
imprisonment.
Accused 6:
Count 1
(Housebreaking)
- 3 years
imprisonment;
Count 2
(Kidnapping)
- 3 years
imprisonment;
Count 5
(Murder)
- Life
imprisonment.
________________________
G.G.
GOOSEN
JUDGE
OF THE HIGH COURT
[1]
The prescribed sentence escalates to 7 years for a second offence
and 10 years for a third or subsequent offence.
[2]
See S v Malgas
2001 (1) SACR 469
(SCA); S v Vilakazi
2009 (1) SACR
552
(SCA) at par [14] and [15]
[3]
Act No. 62 of 1955
[4]
See S v Nkomonde
1993 (2) SACR 597
(W) at 598b-e; S v Vilikazi and
Others
2000 (1) SACR 140
(W) at 142h-i
[5]
2014 (2) SACR 337
(SCA) at par [18]
[6]
2013 (2) SACR 165
(SCA) at par [14]
[7]
2012 (2) SACR 1
(SCA) at par [41]
[8]
See S v Vilikazi (
supra
)
and S v Radebe and Another (
supra
)
at par [13] and [14].
[9]
See S v Matlala
2003 (1) SACR 80
(SCA) at par [7]
[10]
See S v Mvubu
[2016] ZASCA 184
(29 November 2016) at par [25]
[11]
See S v Radebe and Others (
supra
)
[12]
This,
in the case of life imprisonment, is the period of 25 years which
must be served before the convicted prisoner may be considered
for
parole.
[13]
Supra
at 142a-b
[14]
S v Radebe (supra); DPP v Gcwala (supra)