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2023
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[2023] ZAKZPHC 18
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Mchunu v S (AR162/22) [2023] ZAKZPHC 18 (24 February 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No:
AR162/22
In
the matter between:
NHLANHLA
MCHUNU
APPELLANT
and
THE
STATE
RESPONDENT
Coram:
Mossop J (Seegobin J concurring)
Heard:
24 February 2023
Delivered:
24 February 2023
ORDER
On
appeal from:
Pietermaritzburg Regional Court (sitting as court of
first instance):
1. The
appeal against the sentences imposed is dismissed.
JUDGMENT
Mossop
J (Seegobin J concurring):
[1]
This is an appeal against the sentences imposed upon the appellant on
27 July 2018 when he was convicted in the Pietermaritzburg Regional
Court on charges of conspiracy to commit robbery with aggravating
circumstances, murder, unlawful possession of a firearm and unlawful
possession of ammunition. On the conspiracy count and on the
count of
unlawful possession of ammunition, he was sentenced to six years’
imprisonment and on the charge of unlawful possession
of a firearm,
he was sentenced to 12 years’ imprisonment. These three
sentences were ordered to run concurrently with the
sentence of 20
years imposed on the murder count.
[2]
The appellant’s application for leave to appeal was directed
only
against the sentences that were imposed upon him. That
application was not heard by the regional magistrate who convicted
him,
but was heard, and granted, by another regional magistrate on 14
December 2021. The regional magistrate hearing the application
was of
the view that another court might come to a different view on the
sentences imposed upon the appellant.
[3]
It is worth mentioning, again, that the mere existence of a different
view on the appropriateness of sentences imposed is insufficient when
it comes to an appellate court. As Maya DP stated in
S v Hewitt
:
‘
It
is a trite principle of our law that the imposition of sentence is
the prerogative of the trial court. An appellate
court may
not interfere with this discretion merely because it would have
imposed a different sentence. In other words, it is not
enough to
conclude that its own choice of penalty would have
been
an
appropriate
penalty. Something more is required; it must conclude that its own
choice of penalty is the appropriate penalty
and that the
penalty chosen by the trial court is not. Thus, the appellate
court must be satisfied that the trial court committed
a misdirection
of such a nature, degree and seriousness that shows that it did not
exercise its sentencing discretion at all or
exercised it improperly
or unreasonably when imposing it. So, interference is justified
only where there exists a “striking”
or “startling”
or “disturbing” disparity between the trial court's
sentence and that which the appellate
court would have imposed. And
in such instances the trial court's discretion is regarded as having
been unreasonably exercised
.’
[1]
(Footnotes omitted.)
[4]
In the absence of any such misdirection, an appeal does not have
encouraging
prospects.
[5]
The appellant was one of three accused persons who originally stood
trial.
Their trials were separated after the appellant’s
co-accused indicated that they were pleading not guilty whilst the
appellant
was prepared to make substantial admissions. So substantial
were those admissions, which included admissions made in terms of
section 220
of the
Criminal Procedure Act 51 of 1977
, that upon the
appellant pleading and making those admissions, the State closed its
case without leading any evidence. The accused,
in turn, also closed
his case without himself testifying or calling any evidence. After
argument on the merits, the appellant was
convicted on the four
charges that he faced and received the sentences against which he now
appeals.
[6]
The facts of the matter are not complex. The appellant was approached
by the other two accused with whom he initially stood trial. It was
proposed to him that they should all go and steal diesel from
a
nearby construction site. The appellant agreed with the idea and
supplied seven 20 litre containers, presumably for the stolen
diesel
to be decanted into. Later the same day, one of his co-accused and
two other unknown persons returned in a bakkie to where
the appellant
was and they loaded the containers onto the bakkie and then left to
pick up the other accused. The construction site
was in a plantation
and it was getting dark when they arrived in its vicinity. The
appellant and his co-accused alighted from the
bakkie and one of the
accused gave the appellant his licenced firearm. The accused who gave
the appellant the firearm apparently
realised that he worked with the
guards who were guarding the construction site and may thus have been
recognised by them had he
gone any closer. The appellant and the
other accused proceeded onwards to the construction site. Two
security guards were noted
sleeping next to a fire. The appellant,
armed with the firearm, woke one of them up. The guard grabbed the
firearm and they struggled
over the firearm. The appellant fired a
shot from the firearm. According to the post mortem report, which was
admitted, the deceased
guard received a penetrating shot to his
heart, which killed him. The other security guard fled, as did the
other accused in the
company of the appellant, and as, indeed, did
the appellant.
[7]
This course of conduct, and the accompanying consequences, came about
because the appellant was promised, as his share of the enterprise,
an amount of R1 000.
[8]
It is to the appellant’s credit that, unlike his co-accused, he
was prepared to acknowledge his conduct and assume responsibility for
it. There must, nonetheless, still be consequences imposed
upon him
for his criminal conduct. Those consequences must involve a lengthy
term of imprisonment given the seriousness of that
conduct.
It
is difficult to conceive of a crime more serious than murder. Until
relatively recently, the law permitted a sentence of death
to be
imposed for murder, so serious is that offence viewed by society.
[9]
Sight
must also not be lost of the fact that the sentences for two of the
offences in respect of which the appellant was convicted
attract
minimum sentences in terms of the
Criminal Law Amendment Act 105 of
1997
. The minimum sentence on the murder charge is life imprisonment
and the minimum sentence on the charge of unlawfully possessing
a
firearm is 15 years. It is so that such minimum sentences may be
avoided if the sentencing court is satisfied that there are
substantial and compelling circumstances that allow for a lesser, but
just sentence to be imposed. However, as Mr Singh, who appears
for
the State, pointed out in his heads of argument, the prescribed
minimum sentences are not to be departed from ‘lightly
or for
flimsy reasons’.
[2]
[10]
The
court a quo did not impose the minimum sentences on either of the two
counts that attract a minimum sentence. Life imprisonment
on the
murder count was reduced to 20 years’ imprisonment and the 15
years’ imprisonment on the charge of possession
a firearm was
reduced to 12 years.
[11]
In
sentencing a convicted person, the sentence must fit the criminal as
well as the crime, be fair to society and be blended with
a measure
of mercy according to the circumstances.
[3]
This, in my view, is precisely the approach adopted by the court a
quo when it determined the sentences that it decided to impose
upon
the appellant. The court gave due consideration to the appellant’s
personal circumstances, particularly his age, his
familial
responsibilities and the fact that he had not wasted the court’s
time with a spurious defence. The court also took
account of the fact
that he was not the mastermind behind these unfortunate events and
that he had a clean criminal record. It
concluded, after a balanced
consideration of all relevant factors, that substantial and
compelling reasons existed to justify a
departure from the prescribed
minimum sentences. Those reasons were to be found in the appellant’s
personal circumstances
and the fact that there was no evidence that
the appellant could not be rehabilitated. The prescribed minimum
sentences were accordingly
not imposed.
[12]
Ms Hulley, who appears for the appellant, submitted that the sentence
of 20 years’
imprisonment on the count of murder was so grossly
inappropriate as to induce a sense of shock. The factors referred to
by her
in her heads of argument as being factors that the court had
allegedly failed to attach sufficient weight to were, in fact, the
very factors that the regional magistrate had taken into account when
deciding that the minimum sentences should not be imposed.
It follows
that I am unable to share Ms Hulley’s sense of shock. On the
contrary, I am of the view that the appellant has
received a just
sentence that has adequately taken account of the competing interests
that are applicable when it comes to the
imposition of sentence.
[13]
There is, furthermore, no evidence of any misdirection committed by
the regional magistrate
when expressing himself on sentence. In such
circumstances, any interference with the sentences imposed by the
court a quo cannot
be countenanced.
[14]
I would accordingly propose that the appeal against the sentences be
dismissed.
MOSSOP
J
I
agree and it is so ordered.
SEEGOBIN
J
APPEARANCES
Counsel
for the appellant
: Ms A Hulley
Instructed
by:
: Legal Aid
187
Hoosen Haffejee Street
Pietermaritzburg
Counsel
for the respondent
: Mr R Singh
Instructed
by
:
National Prosecuting Authority
Pietermaritzburg
Date
of Hearing
: 24 February 2023
Date
of Judgment
: 24 February 2023
[1]
S
v Hewitt
[2016]
ZASCA 100;
2017
(1) SACR 309 (SCA)
para
8.
[2]
S
v Malgas
2001
(1) SACR 469
(SCA) para 25.
[3]
S v
Rabie
1975
(4) SA 855
(A)
at 862
;
Ex
Parte Minister of Justice (
In
re R v Berger & another)
1936
AD 334
at
341.