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[2022] ZANCHC 15
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Brown v S (CA & R 2/21) [2022] ZANCHC 15; 2022 (2) SACR 194 (NCK) (18 March 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division, Kimberley)
CASE
NO:
CA & R 2/21
DATE
HEARD:
08/03/2021
DATE
DELIVERED:
18/03/2022
Reportable:
YES / NO
Circulate
to Judges: YES / NO
Circulate
to Magistrates: YES / NO
Circulate
to Regional Magistrates: YES / NO
In
the matter between:
BENNIE
NEVILLE
BROWN
Appellant
and
THE
STATE
Respondent
Coram:
MAMOSEBO, J
et
EILLERT AJ
CRIMINAL
APPEAL JUDGMENT
Eillert
AJ:
INTRODUCTION
1.
The
Appellant was charged in the Regional Court for the district of
Postmasburg, held at Postmasburg with one count of attempted
murder
and one count of discharge of a firearm in a built-up area or public
place in contravention of the provisions of the Firearms
Control
Act
[1]
. He was convicted in the
court
a
quo
on
both counts and sentenced on 16 September 2019 to direct imprisonment
of six years, the court
a
quo
taking both counts together for purposes of sentence.
2.
The court
a quo
refused the Appellant leave to appeal the
convictions and the sentence. Leave to appeal was granted on petition
to the Judge-President
of this Division on sentence only.
THE
GROUNDS OF APPEAL
3.
The Appellant attacked the sentence imposed by the court
a quo
on five grounds, which can be summarised into three, in that the
trial court had erred:
a)
in under emphasizing the personal circumstances of the Appellant and
overemphasizing
the seriousness of the offences thereby imposing a
sentence that induces a sense of shock and that can be described as
disturbingly
inappropriate;
b)
In finding that the appellant did not show remorse by smiling
throughout the
proceedings; and
c)
in imposing a sentence on the second count that exceeds the maximum
penalty prescribed
in section 121 read with Schedule 4 of the
Firearms Control Act.
4.
What stands for determination by this court are two issues:
4.1
whether the 6-year sentence imposed for both the offences of
attempted murder and discharging of a firearm
in a built-up area or
public place induces a sense of shock or is disturbingly
inappropriate.
4.2
whether the court ought to have considered imposing the sentence in
the firearm conviction separate from the
attempted murder count
instead of imposing a globular sentence.
5.
In
Mthembu v The State
(525/2019)
[2019] ZASCA 160
(28
November 2019) at para 13, Dlodlo JA, writing for the unanimous
court, considering the submission that the sentences were
inappropriate, remarked:
“
[13] …
But the trite principle of our law is that sentence is the
prerogative of the trial court. This court, in S v
Snyders reaffirmed
the principles that a court of appeal will
not interfere with a sentence imposed by a trial court, unless it is
of such a nature
that no reasonable court ought to have imposed it,
or it is out of proportion to the gravity or magnitude of the
offence, or it
induces a sense of shock or outrage, or it is grossly
excessive or inadequate, or there was an improper exercise of its
discretion
by the trial court, or the interests of justice requires
it. The mere fact that a court of appeal would have imposed a lighter
sentence if the punishment were within its discretion, is not in
itself sufficient reason for it to intervene
.”
WHETHER
THE COURT
A QUO
MISDIRECTED ITSELF IN EXERCISING ITS SENTENCE
DISCRETION
6.
A major thrust in the submissions made by Mr Nel on behalf of the
Appellant was
the suggested extent to which the court
a quo
in
its judgment on sentence elaborated on some of the factors
influencing its sentence, compared to the brevity with which the
court
a quo
dealt with other relevant factors. However, as we
know, the extent to which a court in its reasons for judgment spends
on the evaluation
of a factor influencing its judgment, or the fact
that a court is silent on a certain aspect in its reasons, does not
per se
mean that one factor weighed more heavily with the
court than another, or that a factor was overlooked, and that
therefore the
court
a quo
misdirected itself. In this regard
this court encapsulates the ground by the appellant that the trial
court did not consider the
complainant’s attitude that he
forgave him.
7.
As stated in
S
v Pillay 1977 (4) SA 531 (AD)
[2]
,
it is for the trial court, in its sentence discretion, to assess the
value to be attached to each factor to be taken into account
and
further, that no judgment can ever be perfect and all embracing
[3]
.
But, as was also pointed out in
Pillay
,
when it appears to a court of appeal that a trial court ought to have
paid regard to certain factors and that it failed to do
so, or that
it ought to have assessed the value of the factors differently from
what it did, to such an extent that the nature,
degree or seriousness
thereof shows, directly or inferentially, that the trial court did
not exercise its sentence discretion at
all or exercised it
improperly or unreasonably; it would constitute a misdirection
entitling the court of appeal to interfere with
the sentence.
8.
It is
regrettable that one factor which the court
a
quo
had
regard to was the court’s observations of the demeanour of the
Appellant, and that the court
a
quo
concluded from the smile of the Appellant that he displayed arrogance
and a lack of remorse, without the accused ever being questioned
about it. This is precisely what the Supreme Court of Appeal warned
against in
S
v Makhudu
2003 (1) SACR 500
(SCA)
[4]
when it said that a court should be slow to jump to conclusions
regarding an accused’s character and reaction to punishment
when such conclusions are based solely upon the accused’s
demeanour and behaviour in court.
9.
Even so, and having thoroughly considered the record, judgment
and
reasons of the court
a quo
, I cannot find that in weighing the
factors that the court
a quo
took into account, the court
a
quo
exercised its sentence discretion improperly or unreasonably
or misdirected itself in this respect.
WHETHER
THE SENTENCE OF THE COURT
A QUO
WAS A COMPETENT SENTENCE
10.
The ground of appeal that is tabulated in paragraph 3(c) above is a
different
matter. Ms Jansen, on behalf of the State, concurred with
the Appellant that the court
a quo
should not have taken the
different counts together for sentencing purposes and that six years
imprisonment on the second count
is not a competent sentence, since
it exceeds the maximum sentence prescribed by the Firearms Control
Act, namely 5 years imprisonment.
11.
In terms of
section 121 of the Firearms Control Act, read with Schedule 4 of such
Act
[5]
, the Appellant’s
sentence on the second count could not exceed that of a fine or
imprisonment for a period of more than five
years. In
S
v Leigh
1972 (4) SA 262
(CPD)
Corbett J (as he then was) stated at 262 H – 263 B that “
when
a court imposes such a globular sentence it is in effect decreeing
that the single sentence imposed is to be regarded as the
punishment
for each of the singular offences of which the accused is convicted.
If that be so, then it would seem to follow that
it is not competent
to impose such a sentence where the severity thereof is such that it
exceeds the jurisdiction of the court
in respect of one or more of
the counts which have been taken together for purposes of sentence.”
12.
Wessels AJ
in the judgment of this division in
S
v Hayman
1988 (1) SA 831
(NK)
at 832 J found that “
alhoewel
ʼn landdros of Regter klagtes kan saam neem vir doeleindes van
vonnis, is hy nie bevoeg om n vonnis wat ten opsigte
van misdaad
geoorloof is en ten opsigte van ʼn ander misdaad ongeoorloof is,
op te lė ten opsigte van die twee tesame
nie.”
The learned Justice, citing the Appellate Court decision of S v Ntuli
1975 (1) SA 429
(A), concluded that the sentence of the court
a
quo
in
Hayman was a nullity.
[6]
13.
In
Trencon
Construction v Industrial Development Corporation
[7]
Khampepe
J stated as follows:
“
[83]
In
order to decipher the standard of interference that an appellate
court is justified in applying, a distinction between two types
of
discretion emerged in our case law. That distinction is now deeply
rooted in the law governing the relationship between appeal
courts
and courts of first instance. Therefore, the proper approach on
appeal is for an appellant court to ascertain whether the
discretion
exercised by the lower court was a discretion in the true sense or
whether it was a discretion in the loose sense. The
importance of the
distinction is that either type of discretion will dictate the
standard of interference that an appellate court
must apply.
”
“
[88] When
a lower court exercises a discretion in the true sense, it would
ordinarily be inappropriate for an appellate court
to interfere
unless it is satisfied that this discretion was not exercised –
…
'judicially,
or that it had been influenced by wrong principles or a misdirection
on the facts, or that it had reached a decision
which in the result
could not reasonably have been made by a court properly directing
itself to all the relevant facts and
principles’”
14.
In
casu
, whilst the sentence of the court
a quo
was a
competent sentence in respect of the first count, it was not in
respect of the second count. In imposing the sentence in
the manner
that it did, the court
a quo
misdirected itself to such a
degree that it vitiated its decision on sentence. On this ground, the
sentence of the court
a quo
should be set aside.
APPROPRIATE
SENTENCE
15.
It therefore falls on this Court to impose an appropriate sentence.
The facts
at trial, in summary, were these. On the evening of 23
January 2016 a brawl occurred outside a certain Laru’s Tavern
in Postdene,
Postmasburg. The Appellant, who at the time was a
constable with the Ekurhuleni Metro Police Department, had attended a
funeral
in the area and drove to Laru’s Tavern to drop off
members of his family and friends. The fight started between Ms
Pakisa
Omar Musa, also known as Kabouter, who was one of the persons
dropped off by the Appellant, and Marco Jakob Louw, the complainant.
After the Appellant involved himself in the fight, the complainant
hit him five times with a glass bottle on the back of his head.
A
person by the name of Beau intervened and stopped the fight, upon
which the Appellant and his companions left the scene in the
Appellant’s vehicle.
16.
The complainant and his companions were walking away from Laru’s
Tavern
when the Appellant returned and found them. The Appellant
alighted from his vehicle and asked where the guy was who had hurt
him
so badly. He then took out a 9mm Parabellum pistol and proceeded
to cock it. As a result, the complainant and his companions fled,
whereupon the Appellant fired a number of rounds at the complainant.
It was the evidence of the complainant that he had heard eight
shots
being fired, but this is doubtful in light of the evidence of the
police officer that, in total, five spent cartridges, and
four live
cartridges, were found at the scene.
17.
The Appellant fired the firearm in the neighbourhood of Postdene and
therefore
within a built-up area. One of the rounds fired hit the
complainant in his lower leg and the complainant fell. The Appellant
thereupon
went to the complainant and remarked that he was not dead
yet. He lifted the complainant up and fired another round past the
complainant’s
head. He also started hitting the complainant
with the firearm, inflicting injuries on one of his eyes or eyebrows,
his chin, the
back of his head, and breaking his arm. As a result,
the complainant bled profusely and lost consciousness. After the
assault,
the Appellant drove away from the scene, all the way to his
home in Sharon Park, Johannesburg. According to the Appellant, he
reported
the incident at the Dunnottar Police Station.
18.
Following the assault, the complainant was first taken to hospital in
Postmasburg,
and soon thereafter transferred to the Kimberley
Hospital. The complainant’s evidence, that was unchallenged,
was that he
suffered from a brain haemorrhage, injuries to an eye,
his chin, his lower neck. A bullet was removed from his lower leg and
a
pin was inserted therein. The incident resulted in complainant
being hospitalised for a week and has left the complainant
permanently
disabled, causing him to mobilize with a crutch.
19.
It is clear from the account given above that the attempted murder on
the complainant
was severe with a high degree of harmfulness. As to
the second count, the risk of harmfulness of firing four rounds, and
potentially
another five rounds, of ammunition in a residential area,
is also very high. It is fortunate that no other persons were injured
during the unfolding of the events. The appellant was clearly on a
frolic of his own and very far removed from his usual duties
and
obligations as a law enforcement officer.
20.
The favourable personal circumstances of the Appellant must be
balanced against
the gravity of the offences. These circumstances
have been well documented in the judgment of the court
a quo
and it is not necessary to repeat them here.
21.
It bears specific mention that Mr Nel argued that the fact that the
Appellant
supposedly acted under provocation should be regarded as a
mitigating factor. Whilst a reasonable person in the position of the
Appellant would arguably also have lost his temper after being
assaulted by the complainant in the manner that he was, the
distinction
in casu
is that there was a break in the sequence
of events, during which the Appellant had time to come to his senses.
It cannot therefore
be found that the retaliation by the Appellant
was reasonable in the circumstances and that the Appellant should be
regarded as
morally less blameworthy in acting in the manner that he
did.
22.
The aggravating factors that count against the Appellant is that one
would not
have expected the Appellant to act in the manner that he
did, given his age of being in his forties, as against the youthful
age
of the complainant, being in his twenties, the fact that the
Appellant was an experienced and trained metro police constable; that
the Appellant had time to come to his senses after the brawl, yet
chose to still engage the complainant thereafter; and that on
the
Appellant’s version he is a responsible citizen, involved
family man as well as involved with his church.
23.
The factors mentioned in paragraph 22 above cause serious concern
when considering
a sentence that will serve the interest of society.
24.
Having considered all the submissions made by counsel for both
parties, the
authorities to which the court was referred as well as
additional comparative case law, this court is of the view that the
appropriate
sentence in the circumstances is the following: as to the
first count of attempted murder, six years imprisonment, and as to
the
second count of unlawful discharge of a firearm in a built up
area or public place, three years imprisonment. The sentences will
be
ordered to run concurrently.
SECTION
276(1)(i)
OF THE
CRIMINAL PROCEDURE ACT, 51 OF 1977
25.
Mr Nel requested this court to consider imposing a sentence in terms
of
section 276
(1)(i) of the
Criminal Procedure Act. Because
the
court intends imposing the sentences set out in paragraph 24 above,
which would therefore exceed a period of five years, this
court is as
a result of the provisions of
section 276
A (2) prevented from
considering such a sentence option.
ANTEDATING
OF THE SENTENCE
[8]
26.
In so far as it is necessary, it will be ordered that the sentences
be antedated
to 16 September 2019.
ORDER
27.
In the premises the following order is made:
1.
The appeal succeeds to the limited extent set out above;
2.
The sentence of the court
a quo
is set aside;
3.
The Appellant is sentenced as follows:
3.1
in respect of count 1, of attempted murder, six years imprisonment;
3.2
In respect of count 2, of discharging of a firearm in a built up area
or public place, 3 years
imprisonment;
4.
The sentences set out above shall run concurrently;
5.
The sentences are antedated to 16 September 2019.
EILLERT
AJ
ACTING
JUDGE
NORTHERN
CAPE DIVISION
I
concur,
MAMOSEBO
J
JUDGE
NORTHERN
CAPE DIVISION
For
the appellant: Adv.
I.J. Nel
(oio Lofty-Eaton
Attorneys
)
For
the respondent: Adv. C. Jansen
(oio
The DPP
)
[1]
Act 60 of 2000. The charge sheet stated the relevant provisions as
section 120 (7) read with sections 1, 103, 120 (1) (a), section
121
read with Schedule 4 and section 151.
[2]
At 534 H – 535 G
[3]
Citing R v Dhlumayo and Others 1948 (2) SA 677 (AD)
[4]
At [8]
[5]
Section 121 provides: “
Any
person convicted of a contravention of or a failure to comply with
any section mentioned in Column 1 of Schedule 4, may be
sentenced to
a fine or to imprisonment for a period not exceeding the period
mentioned in Column 2 of that Schedule opposite
the number of that
section.
”
Schedule 4 Penalty for a contravention of s 120(7) is five years.
[6]
Also
see S v Van Zyl
1974 (1) SA 113
at 114E and SS Terblanche, Guide to
Sentencing in South Africa, Third Edition, LexisNexis, p 203
[7]
2015 (5) SA 245
[8]
It was my intention to release this judgment without delay, however,
due to circumstances beyond my control, the judgment has
taken more
time than was anticipated. The delay is regrettable.