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[2022] ZAECMKHC 120
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S v Rweqane (Sentence) (CC31/2022) [2022] ZAECMKHC 120 (14 November 2022)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE
NO.: CC31/2022
Heard:
24, 25, 26, 27 & 28 October 2022
Delivered:
14 November 2022
In
the matter between:
THE
STATE
and
AYANDA
RWEQANE
SENTENCE
MOLONY
AJ:
1.
The accused in this matter has been found
guilty on the following charges:
(a)
One count of attempted murder.
(b)
One count of housebreaking with intent to
commit robbery with aggravating circumstances. The aggravating
circumstances relate to
the use of a firearm, and a discretionary
minimum sentence of 5 years imprisonment is applicable to this
charge.
(c)
Attempted robbery with aggravating
circumstances. Aggravating circumstances were present in that a
firearm was wielded during
the commission of the attempted robbery.
(d)
Murder. A discretionary minimum
sentence of life imprisonment is applicable to this charge, as the
death of the victim was
caused during an attempt to commit the
offence of robbery with aggravating circumstances, and was committed
by a group of persons
acting in the furtherance of a common purpose
or conspiracy.
(e)
Unlawful possession of a firearm. A
discretionary minimum sentence of 15 years imprisonment is applicable
to this charge,
as the accused was in possession of a semi-automatic
firearm.
(f)
Unlawful possession of ammunition.
2.
It is trite that when determining an
appropriate sentence, the nature of the crime, the circumstances of
the offender and the interests
of society must be considered, and
that relevant mitigating and aggravating factors must be weighed in
order to determine a sentence
which is proportionate under the
circumstances.
3.
The accused’s personal circumstances,
as placed on record, are the following:
(a)
He is 34 years old and lives in M[...] with
his mother, who is unemployed. His father passed away in 2021.
The accused’s
brother, who had a business building houses,
supports the family.
(b)
The accused left school in grade 11.
(c)
He is not married, and has two minor
children, those being a boy who is 7 years old, and a boy who is 3
months old. Both children
live with the accused’s
girlfriend, who is their mother. She is unemployed and receives
a social grant for the children.
(d)
Prior to his arrest he did odd jobs, and
was working for his brother. He earned R 100 per day painting
houses. He used
the money to assist with supporting his
children.
(e)
He has been in custody since 20 August 2021
(which is a period of almost 15 months).
4.
The accused has four previous convictions
for robbery.
5.
The first was committed in 2007, with the
accused being convicted on 13 May 2009. He received a sentence
of 3 years imprisonment,
of which 1 year was conditionally suspended
for 4 years. It is noted that he was also deemed to be unfit to
possess a firearm.
6.
The remaining 3 counts of robbery were
committed on 20 November 2011 (which was about 2 and a half years
after his first conviction
for robbery), with the accused being
convicted on 13 June 2013. All 3 counts were treated as one for
purposes of sentence.
The accused was sentenced to 15 years
imprisonment, and, it is noted, declared unfit to possess a firearm.
7.
Mr Coetzee placed on record that the
above-mentioned 3 counts of robbery were car hijackings where a
firearm was involved.
The accused was, in relation to the
sentence of 15 years imprisonment, released on parole on 26 April
2021. His parole period
is set to expire on 2 July 2028.
Mr Solani confirmed the aforementioned as correct.
8.
In regard to the applicable discretionary
minimum sentences, it was submitted by Mr Solani that the following
mitigating factors,
considered cumulatively (and in conjunction with
the accused’s personal circumstances), constituted substantial
and compelling
factors justifying the imposition of a lesser
sentence:
(a)
In regard to the murder charge, the accused
was convicted on the basis of common purpose.
(b)
It was unknown whether it was the accused
or the deceased who carried the firearm used to commit the offences.
(c)
The complainant did not ultimately suffer
financial loss, as nothing was taken from his home.
(d)
The complainant did not sustain any
physical injuries.
9.
It was submitted further that life
imprisonment would be a very harsh sentence to impose.
10.
It was submitted that any sentences imposed
be ordered to run concurrently, as they all related to a single
incident.
11.
Mr Coetzee submitted the following in
regard to aggravating factors:
(a)
The offences involved are extremely
serious.
(b)
The intended victim was an elderly
gentleman, living alone in an isolated area. On the
probabilities he was clearly sought
out and was (as it was described
by Mr Coetzee) a ‘soft target’. Despite this he was
able to resist and fight
back.
(c)
It was fortuitous that the complainant was
not injured, given the shots fired at him during the course of the
incident. Mr
Coetzee submitted that the accused should not
benefit from the fact that nothing was taken, and that the
complainant was not wounded
or killed, as none of the aforementioned
was due to the conduct of the accused, but rather due to the active
resistance of the
complainant.
(d)
In 2009 the accused had the benefit of a
relatively light sentence in regard to his first previous conviction
for robbery.
(e)
He was then convicted of 3 counts of
robbery. He had been out on parole, in regard to his 15 year
sentence of imprisonment,
for approximately 4 months when he
committed the offences in this matter.
(f)
The accused had been given ample previous
opportunity to reform himself, but had not done so. Instead he
had gone to considerable
effort to travel all the way to the
complainant’s farm, with the deceased, and had spent two days
observing the goings on
at the complainant’s home. This
was not a spur of the moment decision, but had been planned.
(g)
The accused had shown no remorse at all.
12.
Mr Coetzee acknowledged that the accused
had been found guilty of murder on the basis of
dolus
eventualis
, and had not been the one to
fire the shots which killed the deceased.
13.
He submitted however, that the aggravating
factors far outweigh the mitigating factors, and that there were no
substantial and compelling
factors present. He submitted
further that there was a need for society to be protected and for
like-minded offenders to
be deterred. He asked that judicial
notice be taken of the fact that farm murders were not unheard of,
especially where helpless
victims were at risk.
14.
He submitted that in other robbery matters
where accused were convicted (and which involved the death of
co-perpetrators), the sentences
varied from 20 years to life
imprisonment. In regard to sentences for possession of
firearms, sentences ranged from 8 years
to 15 years. Where
accused received sentences at the lower end of the spectrum, it was
under circumstances where the accused
in question were first
offenders.
15.
In
considering whether or not there are substantial and compelling
circumstances present which justify the imposition of a lesser
sentence, I will remain mindful of the guidance provided by the
matter of
S
v Malgas
[1]
which
included
,
inter alia,
the
following considerations:
(a)
As a result of the enactment of Act 105 of
1997, the courts are required to approach the question of sentence
conscious that particular
sentences have been prescribed as those to
ordinarily be imposed for the specific crimes.
(b)
Specified sentences are not to be departed
from for lightly, or for flimsy reasons.
(c)
The factors which are traditionally
considered to be mitigating factors remain part of the consideration
process.
(d)
The
ultimate impact of all the circumstances relevant to sentencing must
be measured against the composite yardstick (that being
'substantial
and compelling') and must be such as cumulatively justify a departure
from the standardised response that the Legislature
has ordained.
(e)
If the
sentencing court on consideration of the circumstances is satisfied
that the circumstances in a matter render the prescribed
sentence
unjust in that it would be disproportionate to the crime, the
criminal and the needs of society, so that an injustice
would be done
by imposing that sentence, it is entitled to impose a lesser
sentence.
16.
I will also remain mindful of the fact that
the offences in this matter occurred during the same sequence of
events.
17.
I have given careful consideration to the
form of intention involved in regard to count 4 (that being
dolus
eventualis
), and that the accused
himself did not fire the shots which killed the deceased.
18.
I have taken into consideration that no
definitive finding was made in regard to whether it was the accused
or the deceased (or
both of them) who in fact wielded the relevant
firearm on the day in question.
19.
Having considered and weighed the relevant
mitigating and aggravating factors, it is, however, clear that the
aggravating factors
in this matter far outweigh the mitigating
factors.
20.
The accused and the deceased planned their
trip to the complainant’s farm, choosing a vulnerable target,
that being an elderly
gentleman in his 80’s, who resided alone
on an isolated farm.
21.
They observed the complainant’s home
and planned their attack for a time when the only employee on the
premises would be at
home for lunch, and the only dog on the premises
would be locked away. It is completely fortuitous that, due to
the complainant
fighting back on the day in question (resulting in a
violent gun battle), nothing was ultimately stolen, and the
complainant not
only survived, but sustained no serious physical
injuries. Had things gone to plan the result would, in all
probability,
have been significantly worse for the complainant.
22.
The accused thereafter made off with the
firearm and fled the scene, managing to evade arrest for a further
two days.
23.
The accused has, furthermore, demonstrated
no remorse whatsoever. He instead sought to place the entirety
of the blame on
his co-perpetrator, that being the deceased.
24.
His previous convictions, along with the
fact that he was on parole in regard to 3 convictions stemming from
armed robberies when
committing the offences in this matter, do not
speak to any propensity towards rehabilitation.
25.
Given all of the above, I am unpersuaded
that the relevant mitigating factors,
cumulatively
considered in the context and circumstances of this matter, justify a
departure from the standardised response that
the Legislature has
ordained. I accordingly find
that
no substantial and compelling circumstances exist in regard to the
applicable discretionary minimum sentences.
26.
Given the nature of counts 2 and 3, I am
satisfied that they can be taken together for purposes of sentence.
Similarly counts
5 and 6 can be taken together for purposes of
sentence.
27.
I accordingly impose the following
sentences:
Count
1: 15 years imprisonment.
Counts
2 & 3: 10 years imprisonment.
Count
4: Life imprisonment.
Counts
5 & 6: 15 years imprisonment.
N MOLONY
JUDGE
OF THE HIGH COURT (ACTING)
For
the State
: Mr Coetzee
For
the Defence : Mr Solani
[1]
2001
(2) SA 1222
(SCA).