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[2011] ZASCA 177
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Fredericks v S (208/2011) [2011] ZASCA 177; 2012 (1) SACR 298 (SCA) (29 September 2011)
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THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 208/2011
In the matter between
BRIAN FREDERICKS
…..................................................................................
Appellant
and
THE STATE
….............................................................................................
Respondent
Neutral citation:
Fredericks v S
(208/11)
[2011] ZASCA 177
(29 September
2011)
Coram: MTHIYANE,
BOSIELO and SHONGWE JJA
Heard: 15 September
2011
Delivered: 29
September 2011
Summary:
Sentencing
of a juvenile under the age of 16 years – Robbery with
aggravating circumstances and rape – s 28 (1)(g) of
the
Constitution – trial court having misdirected itself materially
– appeal court is at large to interfere with sentence.
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from:
Western Cape High Court (Cape Town) (Dlodlo and Yekiso JJ)
sitting as court of appeal:
The appeal is upheld.
The sentence of the court
a quo is set aside and replaced with the following:
‘
On count 1:
Robbery with aggravating circumstances, the accused is sentenced to
10 years’ imprisonment.
On count 3: Rape, the
accused is sentenced to 12 years’ imprisonment.
It is ordered that the
sentence in count 1 shall run concurrently with the sentence in
count 3. The sentences are antedated to
13 December 2000
(effectively he will serve 12 years’ imprisonment.) Such
sentences are to be served at Drakenstein prison.’
___________________________________________________________________
JUDGMENT
___________________________________________________________________
SHONGWE JA (MTHIYANE,
BOSIELO JJA concurring)
[1]
This
appeal is against sentence only. The appellant and his co-accused
were convicted and sentenced by the Parrow regional court
as follows:
on count 1: Robbery with aggravating circumstances as contemplated in
s 1 of the Criminal Procedure Act 51 of 1977
(firearm and knife used)
to 15 years’ imprisonment each, on count 2: Rape, (his
co-accused only) to 10 years’ imprisonment;
and on count 3:
Rape, to 10 years imprisonment each. Effectively the appellant was to
serve a total of 25 years’ imprisonment
and his co-accused, 35
years’ imprisonment. They appealed to the Western Cape High
Court (Dlodlo J and Yekiso J concurring).
Their appeal was dismissed
and the sentences confirmed. Leave to appeal against sentence was
granted by the high court in respect
of the appellant only.
[2] The only issue before
us is whether or not in the circumstances of this case, the trial and
the court below misdirected themselves
in imposing a lengthy
custodial sentence on a juvenile who was 14 years and 10 months old
at the time of the commission of the
offences. This, notwithstanding,
the provision of s 51(6) of the Criminal Law Amendment Act 105 of
1997 (the Act).
[3] In order to
appreciate the reasoning and conclusion of both the trial court and
high court, it is important to set out the background
facts leading
to the sentence. On 6 of July 1999, in the dead of night, the
appellant and his co-accused entered the premises of
the complainant,
Mr Esterhuizen, with the intention of unlawfully breaking into the
house and steal. They found Mr Esterhuizen
outside the house, as the
barking of the dogs had woken him. They produced a firearm and a
knife. They forced Mr Esterhuizen back
into the house. All the other
occupants of the house, his wife and children, were awakened and
bundled into one room and threatened
with the firearm and knife. The
appellant and his co-accused demanded money. Having failed to solicit
money they demanded bank
cards. The appellant took Mr Esterhuizen’s
bank cards and went to the bank to withdraw money, after having
forcefully obtained
the pin code. His co-accused remained in the
house while wielding the firearm. The appellant returned without the
money. The two
accused started removing the goods, as listed in the
charge sheet. The value of the goods removed was estimated at
R6220.00.
[4] While ransacking the
house, the appellant raped one of the children, E, a 15 year old girl
and later his co-accused also raped
her. Later the co-accused raped
the other child, L, 18 years of age. This whole episode took about
six to seven hours. The appellant
removed the stolen goods, while his
co-accused remained in the house but left the house later. Apparently
these goods were to be
used to pay back a debt they owed a rival
gang.
[5] The sentences imposed
were challenged on various grounds, the most significant of which is
that the trial court misdirected
itself by failing to consider the
cumulative effect of the sentences, given that the appellant was a
juvenile offender aged 14
years and 10 months at the time of the
commission of the offences and that an effective sentence of 25
years’ imprisonment
is shockingly inappropriate. To that maybe
added that the applicability of the provisions of s 51(1) and (2) of
the Act was raised
for the first time during the sentencing stage. It
was contended that failure to promptly and pertinently bring the
provisions
of the minimum sentence act to the attention of an accused
person sooner than later may preclude the applicability thereof
whilst
s 51(6) of the Act prohibits the applicability thereof in
respect of a child who was under the age of 16 years at the time of
the
commission of the offence in question. It was argued further that
the trial court exaggerated the misdirection by erroneously finding
that the appellant’s case was a borderline case and that the
trial court failed to consider the constitutional imperative
that
juveniles should be incarcerated as a measure of last resort and for
the shortest possible time. (See s 28(1)(g) of the Constitution.)
It
was contended that the trial court failed to apply the principles
applicable to sentencing of juveniles.
[6] The state conceded
that the trial court failed to consider the cumulative effect of the
sentence imposed on the appellant by
not ordering the sentences to
run concurrently. Both counsel for the appellant and the State were
agreed that the trial court and
the high court misdirected themselves
materially justifying interference by this court.
[7] In addressing the
concerns raised by the appellant against sentence, it is significant
to note that sentencing ‘is pre-eminently
a matter for the
discretion of the trial court’ (
S v
Pillay
1977 (4) SA 531
(A) at 534H–535A
and
S v Fazzie
1964
(4) SA 673
(A). But where the trial court failed to exercise its
discretion properly and judicially or at all, and thereby committing
a material
misdirection, an appeal court will be at large to
interfere with the sentence. Sentencing a 14 year old to 25 years’
imprisonment
is in the circumstances of this case and in my view,
startlingly inappropriate. Moreover the appellant was not timeously
informed
in the charge sheet of the applicability of the minimum
sentence legislation. It was only during the sentencing stage that
the
magistrate raised its applicability; (See
S
v Legoa
2003 (1) SACR 13
(SCA) para 27).
S
v Ndlovu
2003 (1) SACR 331
(SCA) para 12
reads:
‘
The
following extract from the judgment of the Full Court in
S
v Seleke en Andere
1976
(1) SA 675
(T) at 682H was quoted with approval by Cameron JA (his
translation from Afrikaans):
“
To ensure a
fair trial it is advisable and desirable, highly desirable in the
case of an undefended accused, that the charge-sheet
should refer to
the penalty provision. In this way it is ensured that the accused is
informed at the outset of the trial, not only
of the charge against
him, but also of the State’s intention at conviction and after
compliance with specified requirements
to ask that the minimum
sentence in question at least be imposed.”
[8] Sentencing is clearly
the most difficult part of criminal proceedings. It involves a
careful and dispassionate consideration
of balancing the gravity of
the offence, the interests of society and the personal circumstances
of the offender (See
S v Zinn
1969
(2) SA 537
(A) at 540G) not forgetting, the interest of the victim.
It becomes more onerous where a child is the offender and the offence
is a very serious one. In the present case the robbery involves the
use of a firearm and a knife whilst the rape is of a child under
the
age of 16 years. A decision regarding an appropriate sentence becomes
even more difficult – when a juvenile has to be
sentenced for
having committed a very serious crime like in this case. Whilst the
gravity of the offences call loudly for severe
sentence with strong
deterrent and retributive elements, the youthfulness of the appellant
required a balanced approach reflecting
an equally strong
rehabilitative component. After all, the appellant was an immature
youth merely 14 years old. Although youthfulness
remains a strong
mitigating factor, one cannot ignore the sad reality that, nowadays
it is the youth that is engaged in violent
and serious crimes. The
court in
S v Jansen
1975
(1) SA 425
(A) at 427H-428A expressed itself as follows:
‘
In the case
of a juvenile offender it is above all necessary for the Court to
determine what appropriate form of punishment in the
peculiar
circumstances of the case would best serve the interests of society
as well as the interests of the juvenile. The interests
of the
society cannot be served by disregarding the interests of the
juvenile, for a mistaken form of punishment might easily result
in a
person with a distorted or more distorted personality being
eventually returned to society.’
It is trite that the
purpose of sentence is to deter the would be offenders, to punish the
offender and to prevent re-occurrence.
In the case of a juvenile,
rehabilitation seems to be emphasized more. (See
S
v B
2006 (1) SACR 311
(SCA) para 19 –
20).
[9] In the present case,
the trial court and high court overlooked the provisions of s 51(6)
of the Act which reads:
‘
This section
does not apply in respect of an accused person who is under the age
of 16 years at the time of the commission of an
offence contemplated
in Subsection (1) and (2).’
The trial court
repeatedly mentioned during sentencing that the appellant was 16
years old, which was not accurate. This error was
made despite the
fact that the probation officer’s report pertinently mentioned
that the appellant was born on 8
September
1984 which made him 14 years and 10 months old at the time of the
commission of the offence. This fact alone should have
prevented the
trial court from applying the provisions of the minimum sentence
legislation. It is a material misdirection; the
appellant could not
have been a borderline case.
[10] Section 28(1)(g) of
the Constitution provides:
‘
Every child
has the right – not to be detained except as a measure of last
resort, in which case, in addition to the rights
a child enjoys under
sections 12 and 35, the child may be detained only for the shortest
appropriate of time, …’
Failure to give effect to
the above constitutional imperative renders such omission a material
misdirection by a presiding officer.
Botha JA in S
v
Jansen
(1) at 427H-428A – said:
‘
To enable a
Court to determine the most appropriate form of punishment in the
case of a juvenile offender, it has become the established
practice
in the Courts to call for a report on the offender by a probation
officer in, at least, all serious cases (S v Adams,
1971 (4) SA 125
(C), and S v Yibe,
1964 (3) SA 502
(E)).
[11] The attention given
to a child when considering sentence is not done in a vacuum. The
seriousness of the offence, its impact
on the victims and the
interests of the broader society must be taken into consideration.
The law does not prohibit incarceration
of children. However, s 28
(1)(g) provides that the child ‘may be detained only for the
shortest appropriate period of time’.
Undoubtedly the use of
‘may’ suggests that where circumstances demand
incarceration as the only appropriate sentence,
it can be imposed.
[12] In
Brandt
v S
[2005] 2 All SA 1
(SCA) Ponnan JA
referred extensively to international law principles and the South
African Law Commission Report on Juvenile Justice
(Project 106).
These principles reiterate that proportionality is a consideration
and that ‘child offenders should not be
deprived of their
liberty except as a measure of last resort and, where incarceration
must occur, the sentence must be individualized
with the emphasis on
preparing the child offender from the moment of entering into the
detention facility for his or her return
to society’ In
S
v Williams
[1995] ZACC 6
;
1995 (7) BCLR 861
(CC) it was
suggested that South Africa’s child justice legislation should
incorporate accepted international standards,
as well as such further
rules and limitations as to ensure effective implementation of the
international standards. Concepts such
as resocialization and
re-education when dealing with sentencing of children, were suggested
to be regarded as complementary to
the traditional aims of punishment
relating to adults.
[13] The appellant, as
indicated above was 14 years old at the time of the commission of the
offences. He was considered a first
offender, although he had been
convicted of escaping, when he ran away from lawful custody after
being arrested in the present
case. A probation officer’s
report was handed in, but it paints a completely different picture of
him. The principal of the
reformatory school where he was held
described him as a model student whose behaviour and academic
achievements are positive. This
is in stark contrast to his entire
behaviour during the commission of these offences. The only factor in
his favour is the fact
that he was 14 years old when he committed
these offences. The motive for the breaking in was more of personal
and financial satisfaction
than of necessity. The trial court,
however did consider the interests of society and the seriousness of
the offences. The trial
court attached very little or no value to his
personal circumstance. It appears to me that the trial court
over-emphasised the
seriousness of the offences at the expense of his
youthfulness. It concluded by saying:
‘
Ek het reeds
gesê dat die Hof gaan die erns van die oortredings beklemtoon’
.
It went on to say that
these days most of the offences appearing in court books are
committed by youths and that the appellant did
not behave with
immaturity on the day the offences were committed.
[14] The trial court
further misdirected itself by failing to take the cumulative effect
of the sentences into account and thus
resulting in it failing to
order the sentences or part thereof to run concurrently. All the
offences were committed in one house
and in one night. Considering
the seriousness of the offences, the cumulative effect and the fact
that the appellant and his co-accused
pre-planned the breaking in, I
am of the view that a custodial sentence is the only appropriate
sentence in the circumstances of
this case. However a sentence of
imprisonment for 25 years for a 14 year old first offender appears to
me to be shockingly and
disturbingly inappropriate. The disparity in
this sentence as compared to the sentence which I would have imposed
if I had sat
as the trial court is so striking that I feel impelled
to interfere with the sentence. In view of the period already served
by
the appellant it is necessary to shorten the period of
imprisonment to give effect to s 28(1)(g) of the Constitution. This
sentence
also has to take due account of the fact that the appellant
has by now paid for his sins.
[15] In conclusion, I
find that the trial court and high court misdirected themselves by
imposing a lengthy sentence of imprisonment
ignoring that the
appellant was a child at the time of the commission of the offences.
This court is therefore at large to consider
the sentence afresh and
impose what it considers to be an appropriate sentence.
[16] In the result the
appeal is upheld. The sentence of the court a quo is set aside and
replaced with the following:
‘
On
count 1: Robbery with aggravating circumstances, the accused is
sentenced to 10 years’ imprisonment.
On count 3: Rape, the
accused is sentenced to 12 years’ imprisonment.
It is ordered that the
sentence in count 1 shall run concurrently with the one in count 3.
The sentences are antedated to 13 December
2000 (effectively he will
serve 12 years imprisonment.) Such sentences are to be served at
Drakenstein prison.’
___________________
J B Z SHONGWE
JUDGE OF APPEAL
APPEARANCES:
FOR APPELLANT: P J
Burgers
Instructed by: Legal Aid
Board, Cape Town;
Legal Aid Board,
Bloemfontein.
FOR RESPONDENT: P van Wyk
Instructed by: The
Director of Public Prosecutions, Cape Town;
The Director of Public
Prosecutions, Bloemfontein.