Brief Summary

Criminal Law — Sentence — Function of court in imposing sentence — Court must determine maximum period of imprisonment without attempting to fix minimum period — Appellant convicted of murder and robbery with aggravating circumstances, initially sentenced to 47.5 years — Appeal against sentence and application for condonation for late appeal — Trial court misdirected in considering prospects of success, leading to improper refusal of condonation — Appellate court sets aside original sentences and imposes new sentences of 25 years for murder and 15 years for robbery, with effective imprisonment of 30 years.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was a criminal appeal in the Supreme Court of Appeal concerning sentence and, antecedently, the refusal of condonation by the trial court for a late application for leave to appeal against sentence.

The appellant was Richard Mokoena, who had been convicted in the Free State Provincial Division. The respondent was the State.

The matter originated as a trial before Hattingh J and assessors in the Free State Provincial Division sitting at Parys. The appellant and a co-accused were charged with murder and robbery with aggravating circumstances arising from events on 27/28 February 1995 at Petrus Steyn. The appellant was convicted as charged and sentenced to lengthy terms of imprisonment on both counts, partly cumulative. He thereafter sought leave to appeal against sentence out of time, together with condonation. The trial court refused condonation, mainly because it considered there to be no prospects of success. The appellant appealed to the Supreme Court of Appeal against that refusal, and (given the approach adopted) the sentence itself.

The general subject matter of the dispute was whether the trial court’s approach to sentence—and its assessment that an appeal would have no prospects of success—was tainted by a misdirection, particularly in relation to the trial judge’s apparent concern with parole and the minimum period the appellant might serve.

2. Material Facts

The deceased, Mrs Catarina Johanna Koster, was an elderly woman in her late sixties who lived in Petrus Steyn. Her house was surrounded by burglar bars. The appellant was employed as her gardener, placing him in a position of trust.

The deceased was found dead in a bath partially filled with water. Her arms and legs were tightly bound with wire coat hangers, and a wire coat hanger was tied around her neck. Medical evidence showed that she had been strangled manually by her assailant using a right hand; it was common cause that the assailant was the appellant. She also had bruising, including a black eye, consistent with a struggle.

A number of items were missing from the deceased’s home (including, among other things, her car and household and personal items). There were no signs of forcible entry, and the court considered that the appellant must have gained entry by means such as a key or another strategy. In his plea explanation under section 112(2) of the Criminal Procedure Act, the appellant stated that after leaving the deceased in the bath, he locked the house and returned to his dwelling. Later the same night he returned with his co-accused, removed goods from the house, and transported them using the deceased’s vehicle, offloading items at his shack and at the co-accused’s dwelling. The vehicle was later rolled, and the appellant was arrested the next day.

As to the appellant’s personal circumstances, he was 23 years old when the offences were committed. He had two prior convictions for theft (relatively minor, each resulting in imprisonment with an option of a fine), but no previous convictions for violent crime. The court accepted that he was relatively unsophisticated, having left school at a young age after his father’s death in order to assist his mother.

In relation to remorse, the court accepted that the appellant cooperated with police after arrest (including pointings out and a statement), but noted that he attempted to shift blame to his co-accused, did not testify, tendered a plea of guilty to culpable homicide that was rejected, and pleaded guilty to robbery (accepted by the State). The court found it difficult to conclude that the appellant had genuine remorse.

3. Legal Issues

The central questions were whether the trial court’s refusal of condonation for the late application for leave to appeal against sentence was vitiated by a material misdirection, and whether that misdirection rendered the refusal not a judicial exercise of the trial court’s narrow discretion.

Closely linked to this was the sentencing issue: whether the trial court’s sentence reflected an impermissible approach by attempting, directly or indirectly, to account for parole and thus determine a minimum period of imprisonment, instead of fixing the maximum term the appellant should serve.

The dispute primarily concerned the application of established sentencing principles to the facts, and the review of a discretionary decision (condonation and sentence) for misdirection. The Supreme Court of Appeal’s task included both a legal evaluation (the correctness of the trial court’s approach to parole considerations) and a discretionary reassessment (the appropriate sentence to have been imposed at the time).

4. Court’s Reasoning

The Supreme Court of Appeal addressed the condonation refusal first, because it turned largely on the perceived prospects of success on sentence. The court noted that in refusing condonation, the trial judge exercised a narrow discretion, with which an appellate court may not interfere unless it was not exercised judicially. The Supreme Court of Appeal held that interference was justified because the refusal was founded on a material misdirection.

The misdirection was traced to remarks made by the trial judge during argument on sentence, reflecting a concern that fixed-term sentences might allow an offender to be considered for parole after serving half the sentence, and that even life imprisonment might, in the judge’s view, be administratively diluted. Although the sentencing judgment did not repeat these sentiments, the Supreme Court of Appeal inferred that they influenced the sentence imposed. That inference was supported by two considerations identified by the court: the sentences (for murder and cumulatively) were unusually severe, and the trial judge did not state that life imprisonment had been considered, nor explain why it was rejected, despite having indicated that the death penalty would have been seriously considered if available.

The Supreme Court of Appeal reaffirmed the principle that, unless there is a particular purpose for considering the pre-parole portion of a sentence, a sentencing court must disregard what administrative authorities might decide regarding parole. The court cited authority to the effect that the function of a sentencing court is to determine the maximum term of imprisonment which the convicted person may serve, and that courts may not seek to influence or determine a minimum period to be served. Recommendations purporting to control parole eligibility were described as an undesirable intrusion into the executive domain and a potential source of tension between branches of state.

Having found a misdirection, the Supreme Court of Appeal held itself at large to grant the condonation the trial court refused, and to substitute the sentence it considered appropriate.

Turning to sentence, the court weighed the appellant’s personal circumstances against the gravity of the offences. It emphasised the aggravated nature of the murder: the deceased was defenceless and elderly; the appellant abused a relationship of trust as her gardener; the attack occurred in the sanctity of her home; the method of killing—manual strangulation—was treated as aggravating because it involved sustained personal application of force with awareness of the victim’s reaction; and the binding of the deceased with wire hangers and the continuation of the criminal course of conduct (returning later to complete the robbery) demonstrated callousness and persistence. The court drew an inference, in the absence of any exculpatory explanation, that the crimes were committed for personal gain.

The court also acknowledged the broader context of violent crime in South Africa and the legislative response in the form of minimum sentence legislation, but held that it was obliged to impose the sentence that ought to have been imposed in 1995, and thus the effect of later minimum sentencing legislation had to be left out of account.

Balancing these factors, the Supreme Court of Appeal concluded that an appropriate sentence (as at 1995) would have been 25 years’ imprisonment for murder and 15 years’ imprisonment for robbery with aggravating circumstances, with ten years of the robbery sentence running concurrently with the murder sentence, resulting in an effective term of 30 years’ imprisonment. The disparity between that outcome and the original effective sentence warranted appellate interference.

Finally, because the appellant had been in custody since sentencing on 19 September 1995, the court held that the substituted sentences should be backdated under section 282 of the Criminal Procedure Act.

5. Outcome and Relief

The Supreme Court of Appeal set aside the trial court’s order refusing condonation for the late application for leave to appeal, and granted condonation. It also granted condonation for non-compliance with the rules of the Supreme Court of Appeal.

The appeal succeeded to the limited extent that the sentences imposed by the trial court were set aside and replaced with the following: 25 years’ imprisonment on the murder count; 15 years’ imprisonment on the robbery with aggravating circumstances count, with ten years ordered to run concurrently with the murder sentence, producing an effective sentence of 30 years’ imprisonment.

In terms of section 282 of the Criminal Procedure Act, the substituted sentences were backdated to 19 September 1995. The judgment did not make a separate costs order.

Cases Cited

S v Gopal 1993 (2) SACR 584 (A).

S v Moosajee 2000 (1) SACR 615 (SCA).

Naylor v Jansen 2007 (1) SA 16 (SCA).

Giddey NO v J C Barnard and Partners [2006] ZACC 13; 2007 (5) SA 525 (CC).

S v Matlala 2003 (1) SACR 80 (SCA).

S v Bull and Another; S v Chavulla and Others 2001 (2) SACR 681 (SCA).

S v S 1987 (2) SA 307 (A).

S v Mhlakaza and Another 1997 (1) SACR 515 (SCA); [1997] 2 All SA 185 (SCA).

S v Botha 2006 (2) SACR 110 (SCA).

R v Lewis 1958 (3) SA 107 (A).

Legislation Cited

Criminal Procedure Act 51 of 1977 (section 112(2); section 282).

Criminal Law Amendment Act 105 of 1997.

Rules of Court Cited

Rules of the Supreme Court of Appeal (non-compliance referred to; specific rules not identified in the judgment).

Held

The Supreme Court of Appeal held that the trial court’s refusal of condonation was infected by a material misdirection, because the trial judge’s approach reflected an impermissible preoccupation with parole and the minimum period the appellant might serve, rather than focusing on the maximum term the court intended to impose.

It held that a sentencing court must impose sentence on the basis of an assessment of all relevant factors and must not attempt to control, anticipate, or neutralise parole decisions by inflating the sentence or by seeking to determine a minimum period of imprisonment.

On the merits of sentence, the court held that the original sentence was excessively severe when properly assessed on the permissible sentencing considerations applicable at the time. The court substituted a lesser, though still severe, sentence resulting in an effective 30 years’ imprisonment, and ordered that the substituted sentences be backdated to the date of the original sentencing.

LEGAL PRINCIPLES

A sentencing court’s function is to determine the maximum period of imprisonment that an offender may be required to serve as punishment for the offence, based on all relevant sentencing considerations placed before the court.

Unless there is a particular purpose in doing so, a sentencing court must disregard what administrative authorities may later decide regarding parole, because parole lies outside the court’s control. It is therefore improper for a court to scale or calibrate a sentence in order to achieve a desired pre-parole custodial period.

A judicial recommendation or approach that attempts to fix or influence the minimum portion of a sentence to be served constitutes an undesirable intrusion into the domain of the executive and is inconsistent with the separation of functions between branches of state.

Where a trial court’s discretion (including in refusing condonation) is exercised on the basis of a material misdirection, an appellate court is entitled to interfere, grant appropriate procedural relief (including condonation), and substitute the sentence that ought to have been imposed.

S v Mokoena (563/08) [2009] ZASCA 14; 2009 (2) SACR 309 (SCA) ; [2009] 3 All SA 310 (SCA) (19 March 2009)