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[2010] ZASCA 113
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Samuels v S (262/03) [2010] ZASCA 113; 2011 (1) SACR 9 (SCA) (22 September 2010)
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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 262 / 03
ROSCHEN
SAMUELS
....................................................................
Appellant
and
THE
STATE
...................................................................................
Respondent
____________________________________________________________
Neutral
citation:
Samuels v The State
(262/03)
[2010] ZASCA 113
(22 September 2010)
BENCH:
NAVSA and PONNAN JJA and K PILLAY AJA
HEARD:
14 SEPTEMBER 2010
DELIVERED:
22 SEPTEMBER 2010
SUMMARY:
Sentence – possession of
unlicensed firearm – over emphasis of general deterrence and
public safety – on appeal
11 years after conviction and
sentence – sentence of imprisonment set aside and replaced with
a fine.
____________________________________________________________
______________________________________________________________________
ORDER
______________________________________________________________________
On
appeal from
:
The South Gauteng High Court
(Johannesburg) (Epstein AJ and Roux AJ sitting as court of appeal).
1 The appeal against sentence is allowed.
2 The sentence imposed by the magistrate is set aside and there is
substituted therefor the following sentence:
‘
A fine of R6 000, payment whereof is
deferred until 31 March 2011, or six months’ imprisonment’.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
PONNAN JA ( JA and JA concurring):
[1] The appellant, Roschen Samuels, was convicted pursuant to a
guilty plea in the Johannesburg Regional Court of contravening
s 2
read with s 39(2) of the Arms and Ammunitions Act 75 of 1969 (the
Act) and sentenced to a term of imprisonment of two years.
[2] In amplification of his plea the appellant adduced a statement in
terms of s 112 of the Criminal Procedure Act 1997, which
read:
'1 I am the accused in this matter.
2 I admit that I am guilty of contravening section 2
read with sections 39(2) and 40 of Act 75 1969.
3 I admit that on the 22
nd
day of March 1999
and at or near Hamilton Street, Newclare, Johannesburg I did
wrongfully and unlawfully have in my possession
an arm to with a 9mm
pistol.
4 I admit that I was having the aforesaid pistol in my
possession without being the holder of a valid licence for this arm.
5 I admit that I was aware that it was illegal to carry
or possess a firearm and/or pistol without the necessary licence for
same
and that my actions were punishable in law.
6 I further wish to state that I have made this
statement out of my own free will and was not forced or unduly
influenced to make
same.'
[3] As is evident from his statement it was limited to an admission
of the essential elements of the offence charged. Aside from
the
following two questions by the magistrate, the record which spanned
all of three pages is ominously silent:
'
Questions from the court to the
public prosecutor:
Did the fire-arm have any serial no on it?
No.
Question from the court to the defence:
How did the accused come in possession of the fire-arm?
The accused picked the fire-arm up. He wanted to keep
it. When he saw the SAP on the day of his arrest he threw it away.'
[4] Moreover there is no judgment on sentence to speak of. What
motivated the magistrate is to be discerned from the statement
that
she filed in terms of Rule 67 of the Magistrates’ Court Rules.
That too was brief. The relevant portion, without emendation,
reads:
'The court reads every day of people being murdered or
robbed and the fire-arms were used, and that suspects are usually in
the
age group of the accused.
The defence mentioned that the court did not take into
consideration that this fire-arm had no cartridge or ammunition. But
the
accused decided to keep this fire-arm. And you will only keep it
for one purpose and that is to use it, even if it is to protect
yourself, then it seems the he will have no problem to get a
cartridge or communication. If the accused were in possession of a
cartridge and ammunition then that would have been a second count and
would the court have dealt with it further on that count.'
[5] Aggrieved by what he considered to be an excessive sentence, the
appellant appealed to the Johannesburg High Court. Epstein
AJ (Roux
AJ concurring) held:
'Section 39(2)(
a
)
of the Act provides for a maximum of ten years imprisonment for the
possession of more than one firearm and it is submitted that
this
section cannot be applicable to the appellant. The maximum sentence
applicable to the appellant is that contained in section
39(2)(
b
)
of the Act which provides for a maximum of a fine of R12 000.00 or
imprisonment of three years or both’.
The court accordingly concluded:
'A sentence of direct imprisonment is appropriate in
this case. I have taken into account the accused's age and the fact
that he
was a first offender as mitigating factors. In view of the
misdirection I am entitled to interfere with the sentence. In my
view,
taking into account the aforementioned mitigating factors, the
sentence imposed by the magistrate should be reduced. The sentence
imposed by the magistrate is set aside and substituted with the
following:
"The accused is sentenced to a period of
imprisonment of 18 months of which 6 months are suspended for a
period of three years
on condition that the accused is not convicted
within the aforementioned period of the same crime or any arising
from the Arms
and Ammunitions Act, 75 of 1969." '
[6] It is against the effective sentence of 12 months’
imprisonment that the further appeal to this court is directed. The
appeal is before us with the leave of the court below. At the time of
the commission of the offence the appellant was a 21-year
old first
offender, who was earning approximately R2 000 per month as a casual
employee. For reasons that are not entirely clear
and in any event
not necessary to traverse, it has taken all of 11 years for the
matter to be heard by this court. We were informed
from the bar that
the appellant is now in permanent employment earning R5 000 and that
he has since fathered a child.
[7] One would have thought that such facts as served before the
magistrate were insufficient to have enabled her to exercise a
proper
sentencing discretion. As to both the crime and the appellant there
are significant gaps that one needs for responsible
sentencing. We
know very little about the crime, for example, how or where exactly
did the appellant come to acquire possession
of the firearm? How long
did he have possession of it? Why did he decide to keep it? And of
the appellant himself we know as little.
What are his scholastic
achievements? What type of work does he do? What is his work record?
Most importantly is he the type of
young man who should go to gaol?
[8] Despite the fact that the appellant was
represented before the magistrate there nonetheless remained a duty
on her to call for
such evidence as was necessary to enable her to
exercise a proper judicial sentencing discretion. For, as
S
v Siebert
1
made plain:
'Sentencing is a judicial function
sui generis
.
It should not be governed by considerations based on notions akin to
onus of proof. In this field of law, public interest requires
the
court to play a more active, inquisitorial role. The accused should
not be sentenced unless and until all the facts and circumstances
necessary for the responsible exercise of such discretion have been
placed before the court.’
The judgment added: ‘[A]n accused should not be sentenced on
the basis of his or her legal representative’s diligence
or
ignorance’. Whilst I am alive to the very trying conditions
under which magistrates work in this country and their justifiable
need to eradicate the enormous case backlogs that confront them, this
nonetheless may well have been the kind of matter where,
given the
paucity of information, the magistrate should have called for a
pre-sentence report. Absent such a report the magistrate
was unable
to explore all of the available sentencing options and to choose one
that best served the interests of this particular
case.
[9] An enlightened and just penal policy requires consideration of a
broad range of sentencing options from which an appropriate
option
can be selected that best fits the unique circumstances of the case
before the court. It is trite that the determination
of an
appropriate sentence requires that proper regard be had to the well
known triad of the crime, the offender and the interests
of society.
After all any sentence must be individualised and each matter must be
dealt with on its own peculiar facts. It must
also in fitting cases
be tempered with mercy. Circumstances vary and punishment must
ultimately fit the true seriousness of the
crime. The interests of
society are never well served by too harsh or too lenient a sentence.
A balance has to be struck.
[10] It was urged upon us that correctional
supervision would have been an appropriate sentence for the
appellant. Sentencing courts
must differentiate between those
offenders who ought to be removed from society and those who although
deserving of punishment
should not be removed. With appropriate
conditions correctional supervision can be made a suitably severe
punishment even for persons
convicted of serious offences.
2
Correctional supervision, as a possibility, did
not even merit any mention in either the judgment of the magistrate
or that of the
court below. I venture to suggest that that sentence
may well have commended itself as one that was fair and just in this
case.
But the extraordinary passage of time encountered here renders
it inappropriate. It seems to me that it would hardly serve the
interests of justice for the matter to be remitted to the trial court
11 years after the appellant’s conviction for him to
be
sentenced afresh. That, on the view that I take of the matter,
excludes correctional supervision as a sentencing option.
[11] It is not entirely clear to me why it was thought that direct
imprisonment was the only appropriate sentence. What seemed
to weigh
with both courts was the prevalence of violent crimes executed with
unlicensed firearms. Epstein J put it thus:
'The prevalence of violent crime with the use of
firearms and the terrible consequences that are associated therewith
cannot be
overemphasised. The people of the city of Johannesburg and
its surrounds are terrorised on a daily basis by unscrupulous
criminals
who perform the most horrific and heinous crimes using
firearms.'
That consideration was deserving of and warranted appropriate
recognition in the determination of an appropriate sentence.
Regrettably,
it ignored crucial evidence that the firearm had no
cartridge or ammunition. Moreover, as I shall hope to show, the
prevalence
of violent crime was a factor hardly to be taken into
account against the appellant personally.
[12] The appellant was a young - evidently immature - man, who, when
he saw the police became so afraid that he threw the firearm
away.
Hardly the reaction of someone intent on using the firearm for some
nefarious purpose. More likely, one suspects, is the
inference that
he picked up the firearm out of idle curiosity. If that is so, as it
certainly seems to be on such evidence as is
available, then the link
sought to have been made between him and violent crime is devoid of
any foundation. That speculative hypothesis
should have been
displaced by one more charitable to the appellant, namely that he
acted with immaturity and a lack of sophistication
when he picked up
the firearm. And, when he decided to retain possession of it, he was
not motivated by a desire to use it for
any nefarious purpose
thereafter.
[13] Epstein AJ stated: ‘in considering an appropriate sentence
it is necessary to take into account the deterrent factor,
not only
in respect of the appellant but also in respect of other persons who
are in possession of unlicensed firearms’.
I cannot imagine
that the appellant is ever likely to repeat what he did. Deterrence
is therefore only relevant in respect of other
would-be offenders.
There as well the appellant is being punished with imprisonment to
deter others who stand on a very different
footing to him, namely
those who make themselves guilty of violent crimes and utilise
unlicensed firearms to achieve that end.
It is hard to resist the
conclusion that the appellant is being rendered a sacrificial lamb on
the altar of general deterrence.
[14] It follows on the view that I take of the matter that the
requisite balance was not struck as the offence and the interests
of
society were over emphasised and conversely the interests of the
accused under emphasised. Moreover, the only two factors relied
upon
for the conclusion that imprisonment was warranted, namely general
deterrence and the prevalence of violent crime are, as
I have
demonstrated, less apposite to the appellant than appears to have
been thought by either of the courts below.
[15] What one sees here is excessive devotion to
the furtherance of the cause of deterrence and the protection of the
public interest
but insufficient weight to other factors that may
lessen the gravity of the offence in the circumstances of this
particular case.
3
Thus no or insufficient consideration was given to
the following factors: that he was a first offender; that the firearm
given its
state when found could not have been put to any immediate
unlawful use; that he became so frightened upon seeing the police
that
he immediately attempted to dispose of the firearm; that
following upon his arrest he made a full confession to the police;
that
he fully co-operated and demonstrated his remorse by pleading
guilty at the first available opportunity; and most importantly as
I
have stated, that he did not retain the firearm for any other
nefarious purpose. All of those were weighty factors and undoubtedly
served to lessen the gravity of the offence in regard to the
appellant on the facts of this case. And yet none of them either
individually or cumulatively received due recognition in the
determination of an appropriate sentence. The result was the
imposition
of punishment that was grossly disproportionate to what
could be considered fair in the circumstances of this case.
[16] Moreover, in the last 11 years whilst his
appeal to this court has been pending the appellant has managed to
avoid any further
brush with the law. And as his counsel points out
in all of that time he also has had to endure the mental anguish that
is conjured
up by the threat of imprisonment. The legislature has
provided for a sentence of imprisonment for a period not exceeding
three
years or a fine not exceeding R12 000 or both. Both the public
interest and the need to do justice to the appellant would be well
served by the imposition of a fine. I may add that no consideration
was given to the payment of a fine as a sentencing option.
That may
have been on account of the fact that the appellant was then in
casual employment and perhaps it was thought that such
a sentence
would not have served any meaningful purpose. But as
S
v Mosia
4
made clear the court can direct that the fine be
paid in instalments, if necessary over a period for as long as five
years. That
makes it possible in appropriate circumstances for even a
humble wage earner, to escape imprisonment. In that way an accused
person
is offered a real alternative to imprisonment and by having to
prune his income over a fairly protracted period the long term
deterrent
effect of punishment is enhanced.
[17] I have in mind a fine sufficiently severe as to represent real
punishment. Ordinarily it may have been more appropriate for
it to
have been coupled with a wholly suspended sentence of imprisonment to
enhance its deterrent value. But on account of the
passage of time
and his maintaining a clean slate during that period a suspended
sentence has been rendered largely superfluous.
A suspended sentence
as well therefore falls to be excluded as a sentencing option. We
were informed from the bar that were we
inclined to impose a fine in
the region of half of that prescribed by the legislature, which seems
to me just and fitting, the
appellant should be allowed in terms of s
297(5)(a) of the Criminal Procedure Act something in the order of six
months to effect
payment.
[18] In the result:
1 The appeal against sentence is allowed.
2 The sentence imposed by the magistrate is set aside and there is
substituted therefor the following sentence:
‘
A fine of R6 000, payment whereof is
deferred until 31 March 2011, or six months’ imprisonment’.
_________________
V M PONNAN
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: J P Myburgh
Instructed
by:
Sarlie
& Ismail Inc
Johannesburg
Mthembu
& Van Vuuren Inc
Bloemfontein
For
Respondent: M P D Mothibe
Instructed
by:
The
Director of Public Prosecutions
Witwatersrand
Local Division
The
Director of Public Prosecutions
Provincial
Division Free State
1
1998
(1) SACR 554
(SCA) at 558j-559a.
2
S
v Ingram
1995 (1) SACR 1
(A).
3
S
v Maseko
1982 (1) SA 99
(A).
4
1988
(2) SA 730
.