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[2012] ZASCA 191
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S v Mudau (419/12) [2012] ZASCA 191 (30 November 2012)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 419/12
Not Reportable
In the matter
between:
ITANI THOMAS
MUDAU
......................................................................
Appellant
and
THE STATE
...........................................................................................
Respondent
Neutral citation
:
Itani Thomas Mudau v The State
(419/12)
[2011] ZASCA 191
(30
November 2012)
Coram:
PONNAN, TSHIQI JJA and MBHA AJA
Heard:
01
November 2012
Delivered:
30
November 2012
Summary:
Criminal
law – sentence
-
effective sentence of 49 years’
imprisonment for housebreaking with intent to murder and attempted
murder – trial court
misdirecting itself – sentence set
aside.
_________________________________________________________________
ORDER
___________________________________________________________________________________
On appeal from:
Limpopo High
Court, Thohoyandou (Hetisani J), sitting as court of first instance):
1 The appeal against
sentence is upheld.
2 The sentences
imposed by the court a quo are set aside and substituted with the
following:
Count 1 – 18
years’ imprisonment
Count 2 – 18
years’ imprisonment
Count 3 – 15
years’ imprisonment
Count 4 – 15
years’ imprisonment
3 It is ordered that
the sentences imposed on counts 2, 3 and 4 shall run concurrently
with the sentence imposed in respect of count
1. The appellant is
sentenced to an effective term of imprisonment for 18 years
__________________________________________________________________
JUDGMENT
__________________________________________________________________
MBHA AJA (Ponnan et
Tshiqi JJA concurring):
[1] This is an
appeal against sentence only. The appellant was convicted, pursuant
to his plea of guilty, by the Limpopo High Court,
Thohoyandou
(Hetisani J) on four charges, namely two counts of housebreaking with
intent to murder and attempted murder (being
counts 1 and 2) and two
counts of attempted murder (being counts 3 and 4). The appellant was
sentenced to imprisonment for terms
of 25 and 49 years respectively
in respect of the first two counts and 18 and 15 respectively in
respect of counts 3 and 4. The
sentences imposed in respect of counts
1, 3 and 4 were ordered to run concurrently with the sentence imposed
in respect of count
2. He was thus sentenced to imprisonment for an
effective term of 49 years. The appeal is with the leave of the court
a quo (per
Makhafola J).
[2] The facts
relating to the commission of the offences can be gleaned from the
appellant’s statement in terms of section
112(b) of the
Criminal Procedure Act 51 of 1977
, the relevant parts of which read:
‘
3.
I admit that upon or about the 4
th
day
of March 2002, and at or near Tshimbupfe Dindela, Mianzwi residential
area in the district of Thohoyandou, I did wrongfully
and
intentionally break in and enter the house of Livhuwani Elizabeth
Murundwa with intent to murder and did then and there wrongfully
and
intentionally attempt to cause the death of Livhuwani Elizabeth
Murundwa, a female person by setting her on fire after pouring
petrol
on her body.
4. I
admit that upon or about the 4
th
day of March 2002, and at or near Tshimbupfe Dindela,
Mianzwi residential area in the district of Vuwani, I did wrongfully
and intentionally
break in and enter the house of Livhuwani Elizabeth
Murundwa with intent to murder and did then and there wrongfully and
intentionally
attempt to cause the death of Andani Mphaphuli, a young
male person by setting him on fire, after pouring petrol on him
.
5. I
admit that upon or about the 4
th
day of March 2002, and at or near Tshimbupfe Dindela,
Mianzwi residential area in the district of Vuwani, I did unlawfully
and intentionally
attempt to cause the death of Tshinahalo Mbau, a
female person by chopping her with a butcher knife.
6. I
further admit that upon or about the 4
th
day of March 2002, and at or near Tshimbupfe Dindela,
Mianzwi residential area in the district of Vuwani, I did unlawfully
and intentionally
attempt to cause the death of Thivhileli Eunice
Mbau, a female person by chopping her with a butcher knife.’
[3] There is no
doubt that all the offences were committed in the most barbaric,
cruel and inhumane manner. After he had broken
into the home of Ms
Livhuwani Elizabeth Murundwa (Murundwa), where the latter had been
sleeping with her children, the appellant
ordered her and her son
Andani Mphaphuli (Mphaphuli) to stand whereafter he doused them with
petrol and set them alight. Thereafter
he attacked Murundwa with a
butcher knife and struck her several times over the head and body.
Mphaphuli, whilst alight, managed
to escape through a window and
summon his maternal grandmother and aunt - the complainants in the
third and fourth counts respectively.
Upon their arrival at the scene
and without any provocation from them, the appellant also attacked
them with the butcher knife.
The medico-legal reports (J88 forms) in
respect of all four complainants, which was admitted by consent show
each of them to have
sustained multiple bodily injuries including
fractures, cuts lacerations and bruises. Over and above that,
Murundwa and her son
Mphaphuli, then 12 years old at the time,
sustained serious burns causing the latter’s hands to be
paralysed.
[4] In assessing an
appropriate sentence regard must be had to the main purposes of
punishment, namely deterrent, preventive, reformative
and
retributive. In considering sentence, the court a quo found the
following factors to be seriously aggravating: the barbaric
and cruel
manner in which the offences were committed; the fact that Murundwa
and Mphaphuli were attacked in the sanctity of their
home; and
importantly the fact that all the victims, three of whom were women
were vulnerable and defenceless individuals. Undoubtedly
these
offences evoke a great measure of moral outrage among right thinking
members of society. The court had a duty to impose a
sentence that
properly takes account of such outrage. That these offences called
for a severe sentence is beyond doubt. However,
in my view the
learned Judge plainly over-emphasized the retributive aspects of
punishment at the expense of the other considerations
and thus failed
to strike an appropriate balance. Moreover, he imposed very disparate
sentences in respect of similar offences
without furnishing any
reasons for the difference. Absent any explanation for the disparity,
the sentences appear to be ill-considered
and arbitrary.
[5] What is even
more worrisome is that the trial Judge appeared to lose from sight
the practical effect of a sentence of 49 years’
imprisonment
imposed on the appellant. The appellant was 35 years old when
sentenced on 5 March 2003. If he serves the full sentence
this means
that he will be 84 years old by the time he completes serving his
sentence. It is generally accepted that inordinately
long terms of
imprisonment do not contribute to the reform of an accused person. On
the contrary they have the negative effect
of denuding the accused of
all hope of rehabilitation. I consider Nicholson JA’s dicta in
S v Skenjana
1985 (3) SA 51
(A) at 55C-D, appropriate. He said
the following:
‘
Nor is it in
the public interest that potentially valuable human material should
be seriously damaged by long incarceration. As
I observed in
S
v Khumalo and Another
[1984] ZASCA 30
;
1984 (3) SA 327
(A) at 331, it is the experience of prison
administrators that unduly prolonged imprisonment brings about the
complete mental and
physical deterioration of the prisoner.
Wrongdoers “must not be visited with punishments to the point
of being broken.”
(per Holmes JA in
S
v Sparks and Another
1972 (3) SA 396
(A) at 410G).’
[6] All of the above
amounted to misdirections. The result is that the sentence should be
set aside. It then becomes the task of
this court to impose sentences
which it thinks suitable in the circumstances of this case.
[7] In this case,
the appellant, other than his age of 35 years at the time of
sentencing, is married with 4 four children; he was
the sole
breadwinner in the family as his wife is unemployed; there is
evidence of him having consumed alcohol at the time of the
commission
of the offences; he has a standard 7 level of education and he was a
first offender which suggests that he has no propensity
to criminal
conduct. All of these factors, cumulatively taken, weigh in his
favour. None however were taken into consideration
in determining an
appropriate sentence.
[8] It remains to
substitute what this court considers appropriate for those sentences
imposed by the court below. For each of counts
1 and 2 the appellant
is sentenced to 18 years’ imprisonment and in respect of each
of counts 3 and 4 the appellant is sentenced
to 15 years’
imprisonment. The sentences imposed on counts 2, 3 and 4 are ordered
to run concurrently with the sentence imposed
on count 1. The
appellant is thus sentenced to an effectice term of 18 years’
imprisonment.
[9] In the result:
1 The appeal against
sentence is upheld.
2 The sentences
imposed by the court a quo are set aside and substituted with the
following:
Count 1 – 18
years’ imprisonment
Count 2 – 18
years’ imprisonment
Count 3 – 15
years’ imprisonment
Count 4 – 15
years’ imprisonment
3 It is ordered that
the sentences imposed on counts 2, 3 and 4 shall run concurrently
with the sentence imposed in respect of count
1. The appellant is
sentenced to an effective term of imprisonment for 18 years.
____________________
BH Mbha
Acting Judge of
Appeal
APPEARANCES
For Appellant: M J
Mahwadu
Instructed by:
Justice Centre,
Bloemfontein
For Respondent: R J
Makhera
Instructed by:
Director of Public
Prosecutions, Thohoyandou
Director of Public
Prosecutions, Bloemfontein