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[2021] ZAGPPHC 295
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Munsamy and Another v S (A247/2020) [2021] ZAGPPHC 295 (29 April 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO:
A247/2020
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
KEVIN
MUNSAMY
1
ST
APPELLANT
ARSHAD
ISMAIL
2
ND
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
Van
der Schyff J
Introduction
[1]
The appellants were charged in
the Regional Court for the
Division of North Gauteng held at Benoni on charges of attempted
murder,
the
discharge of a
firearm
i
n
a bui
l
t-up
area or any
publ
i
c
place, and the
handling of a firearm under
the
i
nfluence
of
a
substance
which has
an
intoxicating
or
narcotic
effect. They pleaded not
guilty but
were convicted on
all
counts and sentenced to an
effective term of seven
years' imprisonment.
Although the appellants'
l
egal
representative indicated
at
the
conclusion
of
the
trial
that
he
had
instructions
to
appeal
both
conviction
and
sentence,
the
appellants
approached
the
Regional
Court
w
i
th
an
appl
i
cation
for
l
eave
to
appeal against
the
sentence only. Leave to
appe
a
l
was granted.
[2]
The main grounds of appeal are that the sentencing court did not
balance the recommended forms of sentencing as outlined by
two
probation officers and failed to apply the 'triad of Zinn' when it
exercised its judicial discretion and that the court's reliance
on
the provision of Part IV of Schedule
2 Act 105
of 1997 that
prescribes the implementation of a minimum sentence, was misplaced.
Legal principles
applicable when considering an appeal against sentence
[3]
The correct
approach to
an appeal on sentence
is
succinctly
stated
in
S
v
Malgas
[1]
"A
court
exercising
app
e
llate
jurisdiction cannot, in the
absence
of
material
misdirection
by
the
trial
court,
approach
the quest
i
on
of sentence as if it were the trial court
and
then
substitute
the
sentence
arrived
at
by
it
simply
because
it prefers it.
To
do so would be to usurp
the
sentencing
discretion
of
the
trial
court.
Where
material
misdirection
by the trial court vitiates its exercise of that
discretio
n
,
an
appellate
court
is
of
course
ent
i
tled
to
consider
the
question
of
sentence
afresh.
In doing
so,
it
assesses
sentence
as
if
it
were
a
court
of
first
instance
and
the
sentence
imposed
by
the trial
court
has
no relevance. As it
is
said,
an
appellate
court
is
at
large.
However,
even in the absence of material misdirection, an
appellate
court
may
yet
be
justified
in
interfering with the sentence
imposed
by
the
trial
court.
It may
do
so
when
the
disparity
between
the
sentence
of
the
trial
court
and
the
sentence
which
the
appel
l
ate
court
would
have
imposed had it been the trial court
is
so marked that it can
properly
be
described
as
"shocking
"
,
"startling"
or
"disturbingly
inappropriat
e
."
'
[4]
In casu,
the record reflects that the Regional Court
Magistrate was of the view that as far as the first count, attempted
murder, is concerned
that the charge fell in the ambit of Schedule 2
of Part IV of the
Criminal Law Amendment Act 105 of 1997
. This was a
material misdirection because
Part IV
refers to 'an offence involving
assault, when a dangerous wound is inflicted with a firearm, other
than an offence referred to
in
Part I
, II or Ill of this Schedule'.
The facts presented in court did not indicate that any wounds were
inflicted when the appellants
discharged their firearms. Although the
Regional Court Magistrate considered whether there were compelling
and substantial circumstances
to deviate from imposing a prescribed
minimum sentence, the focus of such an inquiry differs substantially
from an inquiry where
a court must determine an appropriate sentence
without having to find reasons not to apply a minimum sentence. In
the result, this
court would not usurp the trial court's sentencing
discretion when it steps in to reconsider the sentence imposed for
the attempted
murder.
[5]
The second ground of appeal revolves not around the sentences
imposed itself, but on the cumulative effect of the sentences
that were not ordered to run concurrently. This resulted in a term of
seven (7) years effective imprisonment which the appellants
submit is
strikingly inappropriate.
The sentencing court's
approach
[6]
The Regional Court Magistrate correctly held that a sentence must
satisfy the aims of legal punishment, which includes retribution
for
the offence committed, rehabilitation of the offender, deterrence of
would-be offenders from committing similar offences, and
prevention
of continued criminal conduct by the perpetrator. He emphasised from
the onset that, in his view, rehabilitation 'starts
with admission,
unqualified admission of guilt.' The fact that neither of the
appellants showed any remorse, or admitted their
conduct, carried
much weight when the sentence was determined. Based on the absence of
any indication of remorse, the sentencing
court held that it is
difficult to support the argument that the accused, as they were
before the trial court, were capable of
rehabilitation . The court
expressed the view - 'maybe in the long run but not as it stands
today .'
[7]
When considering the appellants' personal circumstances , the
Regional Court Magistrate took issue with the pre-sentencing reports.
He stated that if the reports are considered, the appellants seemed
'like white angels walking the streets,' but if they were such
exemplary police officials, they would not have been convicted. An
incident where one of the accused was involved in a motor vehicle
accident while under the influence of liquor during a year-end
function disputed his claim to an exemplary record, said the
Magistrate.
A negative aspect of the reports pointed out by the
Regional Court Magistrate is that the appellants' superiors were not
engaged
when the reports were compiled. The Regional Court Magistrate
acknowledged that both appellants contribute to other dependants'
livelihood. Accused 1 joined the SAPS nine months before the
incident. Accused 2 recently burned his hand while assisting his
landlord to put out a fire on a stove. It is indicated in the
pre-sentence report that he is a helpful person where he stays. Both
are first offenders.
[8]
As to the gravity of the offense, the Regional Court Magistrate
stated that he got the impression that the appellants do not
realise
the seriousness of their conduct. They fired shots at an 18-year-old
who was on the dam fishing, and they are fortunate
that they missed.
However, they also endangered other people's lives because the N12
Highway is situated next to the dam. They
were just fortunate that
none of the bullets ricocheted and/or struck someone driving past on
the N12. The fact that both appellants
are members of SAPS was found
to be aggravating. Members of SAPS are required to serve the public,
and no one was served while
the appellants, under the influence of
alcohol, used their service pistols to fire at an innocent member of
the public. 'In a moment
of madness,' said the Regional Court
Magistrate, the appellants tarnished the reputation of members of the
SAPS. He equated the
conduct of the appellants to police officials
committing serious crimes.
[9]
The Regional Court Magistrate said:
'It
is very clear what happened here. You were with these ladies at the
dam whether they were informers or not, under the influence
of
alcohol, drinking with them and impressing them with your firearms ,
service pistols, and as I have said many a time in this
Court,
alcohol with firearms and women in the same place is a recipe for
disaster as it happened on the day in question.'
[10]
The Regional Court Magistrate accepted the evidence led by superiors
of the appellants during the trial that members of the
Crime
Intelligence Unit are allowed to use alcohol while on duty to connect
with their informants. However, he emphasised that
members are still
required to be responsible, and the appellants were not responsible
on the day in question. In determining whether
compelling and
substantial circumstances exist which would enable the court to
deviate from the prescribed minimum sentence it
erroneously held to
apply, the sentencing court affirmed that the appellants' behaviour
could not be condoned and found no such
circumstances to exist.
Although the court acknowledged that the sentence imposed on all the
counts amount to seven years' direct
imprisonment , it
did not set out reasons for not allowing the sentences to
run concurrently.
Evaluating the sentencing
court's approach
[11]
It is trite that an accused person's state of intoxication is a
factor to be assessed in sentencing as it is relevant to
blameworthiness.
Lowe J stated
Mpongoshe
v
S
(CA24/2019) [2020] ZAECGHC 8 (11 February 2020) that the effects
of the intake of alcohol on an appellant (accused) have always been
considered when imposing a sentence.
[12]
Wessels J, as he then was, stated in
Fowlie
v
Rex
1906 TS 505
on 511, 'It would be absurd to say
that if a man in his cold, sober senses did the act he should be
punished with no greater severity
than the man who did it whilst
under the influence of liquor'. That there should be a difference in
the degree of punishment has
been recognised in almost every system
of jurisprudence. In the
Digest,
48.49 .11, we find the
distinctions drawn between the punishment of a sober man and of a man
who had been drinking; and Matthaeus
says
(de
Criminibus,
p. 33):
Ebrius
aliquo mitius puniri debet quia non
proposito
sed
impetu
delinquit.
Although a man may not be so drunk as to be excused the
commission of a crime requiring special intent, yet he may have been
so
affected with liquor that his punishment should be softened.' This
view was upheld, amongst others, in
S v Ndlhlovu
(2)
[1965] 4 All SA 462
(A) and
S v M
1994 (2) SACR 24
(A).
[13]
We are of the view that the mere fact that the sentencing court did
not consider that although the use of alcohol cannot be
pleaded as an
excuse, it mitigates the punishment (R
v Bourke
1916 TPD 303
at 306), is a misdirection. The court regarded the appellants'
intoxication as an aggravating circumstance because they are members
of the SAPS despite accepting the evidence that it is tolerated, and
sometimes unavoidable, for members of the crime intelligence
unit to
use alcohol while engaging with informers. The effect of liquor to
'arouse sense and inhibit sensibilities' (S
v
M
supra
29H-1), which may diminish the responsibility
of the offended , cannot be ignored.
[14]
In addition, we consider that the same conduct underpins the
conviction on all three charges. Although the nuanced differentiation
between the charges does not render it a duplication of charges in
the strict sense of the word, the same incident gave rise to
a
conviction on all three charges. The appellants did not engage in one
act and then proceeded to engage in further criminal conduct.
The
trial court held that they fired three shots at the complainant who
was in his canoe on the dam that is situated in a built-up
area while
under the influence of alcohol. To effectively punish these as
separate actions, is in our view, contrary to what is
dictated by a
common-sense approach in view of the fundamental requirement of
fairness, and a misdirection.
[15]
In the final instance, we considered that the sentencing court seems
to have regarded the appellants' perceived lack of remorse
as an
aggravating factor when it reasoned that rehabilitation 'starts with
admission, unqualified admission of your guilt. If a
person cannot
admit to his guilt which is the first step toward rehabilitation, the
rehabilitation can hardly take place'. The
Supreme Court of appeal
held in
Hewitt
v S
2017
(1) SACR 309
(SA) at par
[16] that lack of remorse is not an aggravating circumstance .
Although it is accepted that the absence of remorse
lessens the
chance of rehabilitation, the court misdirected itself in finding
that the absence of remorse inevitably leads to the
conclusion
that the appellants are incapable of being
rehabilitated. Remorse is not the singular
determining factor as to
whether a convicted person will be able to rehabilitate.
[16]
In the result, we are of the view that it is justified for this court
to step in and reconsider the sentence imposed in totality.
Principle to apply in the
sentencing process
[17]
I
n
the
pursuit
to
i
mpose
an
appropriate
sentence,
the
so-called
Zinn-triad
remains the
most
prominent
principle.
[2]
The
Appeal
Court,
as
i
t
was
then
referred to, held in
State
v Zinn
[3]
that
'What has to be considered is the triad
consisting
of the crime,
the
offender and the
i
nterests
of society.' As a result, the
i
nterests
of society,
the gravity
of the offenc
e
,
retributive
aspects, rehabilitation and deterrence
need
carefully to be considered and balanced when
an
appropriate sentence
is
determined.
I
f
one of the components
are
excessively
stressed an
imbalance
i
s
created.
I
t
is
i
mportant
to mention that case law
highlights
the
emergence
of
an
additional
facto
r
,
namely
the
interests
of the
victim
.
[4]
[18]
The question is whether direct imprisonment is the only sentence that
would (i) take account of the interests of the victim
by
acknowledging the harm done to him, (ii) inflict punishment on the
offenders so that the scales of justice are balanced (retribution)
;
(iii) cause the offenders to reconsider their way and not commit
similar crimes in future (deterrence) ; (iv) cause other people
in
society from refraining to commit similar crimes because they witness
the offender's punishment and fear suffering a similar
fate
(deterrence) ; (v) contribute to the improvement of the offender and
thus assist both offenders and the society (rehabilitation)
.
[19]
It cannot be denied that society is abhorred by the mere thought of a
person shooting in the direction of another person, more
so if the
shooter is a police officer under the influence of alcohol, who for
the laughs of it shoots in the direction a canoeist
who happens to be
an 18-year-old man, and the setting of the incident is a built-up
area. However, to equate the commissioning
of this crime, on the
facts accepted by the trial court, to police officers using their
service pistols to commit serious crimes,
like hijacking, is not
correct. The trial court itself classified the incident as occurring
'in a moment of madness' and observed
that the appellants do not seem
to grasp the seriousness of their conduct. There is no evidence of
any premeditated actions. It
was correct to hold that an appropriate
sentence should reflect the gravity and seriousness of the offense,
but as Holmes JA held
in
S
v Rabie
1975
(4) SA 855
at 862G-H, 'Punishment should fit the criminal as well as
the crime, be fair to society, and be blended with a measure of mercy
according to the circumstances.'
[20]
I
t
is trite
that
i
mprisonment
has several
objectives. Offenders
are
punished
by being
deprived of their
liberty.
Their
i
ncarceration
keeps them from committing further
crimes
whi
l
e
they
are in
prison and,
in
theory,
allows them
to be rehabilitated during their period of imprisonment. The goal of
rehabilitation is
to
address the
underlying
factors
that
led to
criminal
behaviour
and
by so
doing,
reducing
the likelihood of re-offending.
However,
this
objective
is
generally
not
met
by
imprisonment.
On
the
contrary
,
evidence
shows
that
prisons
rarely
rehabilitate
i
ndividuals
but tend to
further
criminalise
individual
s
,
l
eading
to
re
offending and
a
cycle
of
release
and
imprisonmen
t
,
which
does
nothing
to
reduce
overcrowding
in prisons
or build safer communities.
[5]
I
t
also needs to be acknowledged that the current
Covid-19
pandemic
renders
i
nmates
more vulnerable
to
contracting
the
virus
and
places
an
additional
strain
on
correctional
institutions.
The
community
is
protected
when
convicted
persons
are removed
from society.
However,
protecting the community from an offender
does
not
necessarily
require
imprisoning
the
offender
, and
this
purpose
may be
fulfilled
through
the
imposition
of
other
sentencing
orders. We
are
of
the
view that
the facts of this case do not support a finding that the appellants
are
a danger
to society
that
calls
for the protection of the community through their
incarceration
as
a
specific aim
of
the
sentence
.
The
i
mposition
of a
fin
e
,
coupled with
a
suspended
sentence
, will
cause
the
appellants
to
experience
the
consequences
of their
actions while they would
avoid the
harmful effects of
incarceratio
n
.
It
will,
likewise,
have
a
l
ess
severe
i
mpact
on
the
appellant
s
'
dependants
than their
incarceration will
have. A
fine
is punitive
and deterrent
in its aim
and
stresses
offender
accountability
.
It demands
of the
offender
to
pay
his
debt to society.
The
deterrent
effect
of
a suspended
sentence
needs no
elucidation
.
Application of the legal
principles to the facts
[21]
In order to have regard to the gravity of the offense, it is
necessary to have regard to the facts that underpinned the
convictions.
In casu,
the complainant was shot at while he was
canoeing on the Lakefield Dam, on the afternoon of g November 2017.
Three shots were fired
in his direction. The accused are two police
officers from the Germiston Crime Intelligence Unit. Although they
denied shooting
at the complainant, or at all, the court evaluated
the evidence and found that the state has proved their guilt beyond a
reasonable
doubt. It was also proven that they were under the
influence of alcohol when the offense was committed. The appellant's
legal representative
conceded that the court was correct to convict
the appellants of attempted murder but argued that the conduct was
'mainly an act
of stupidity.' The offences are serious, but the
evidence does not indicate that it was premeditated. The appellants
acted in the
spur of the moment while under the influence of alcohol.
[22]
Pre-sentencing reports were obtained . Regarding the first
appellant, Ms. M. Madise, a probation officer, proposed that
correctional supervision should be considered an appropriate sentence
. Mr. TP Ndobe, a registered professional social worker ,
proposed
correctional supervision, a suspended sentence , or a fine
imposition. Both the social workers based their recommendations
on
the facts that their investigations revealed regarding the personal
circumstances of the appellants. We noted the Regional Court
Magistrate's criticism of the pre sentencing report because,
amongst others, the appellants' superiors were not consulted
with,
Captain Mchunu, the commanding officer of the appellants and
Lieutenant Colonel Mashile testified during the trail at the
insistence of the court. Neither of them provided any information
from which it can be deduced that the appellants have a negative
employment record.
[23]
From Ms. Modise's report, it is gleaned that:
(i)
The first appellant was born on 20 September 1983;
(ii)
He is married, and has one child; (iii)
He is employed by the SAPS;
(iv)
He is regarded as a trustworthy and responsible person by his
friends
and
family;
(v)
He has no previous convictions, and no pending matters against
him;
(vi)
In her view, the first appellant does not understand the
seriousness of his offence. She also opined that due to the
seriousness
of the offences and the deterrent message that a sentence
should be sent to the community, a suspended sentence was in her view
unsuitable.
(i)
From Mr. Ndobe's report, it is gleaned that:
(ii)
The second appellant was born on 20 February 1990;
(iii)
His family and friends describe him as a 'good' and
'humble', 'non- violent' person;
(iv)
He is in a cohabitative relationship, and has one child;
(v)
His family is dependent on him;
(vi)
He is a first offender ;
(vii)
In his view, the second appellant's age and history indicate
that he is a good candidate to be rehabilitated, and that
correctional
service or a suspended sentence would be a suitable
sentence.
[24]
When sentence was argued in the court
a quo
the prosecutor
indicated that the state does not object to the reports and accept
that the accused are suitable candidates for correctional
supervision. Counsel for the respondent likewise conceded that
sentences must run concurrently and that a suspended sentence might
be appropriate in the circumstances.
[25]
We are of the view that although the appellants were convicted of
serious offences, that sufficient factors exist that indicate
that
direct imprisonment is not the only appropriate option for a sentence
. It is a mitigating factor that both accused are first
offenders and
aggravating that they are members of the SAPS. The court also must
consider that the appellants' commanding officer
testified that
members of the Crime Intelligence Unit are allowed to sometimes
consume limited amounts of alcohol when enticing
informers.
In
casu, the limits of consumption were , however, exceeded and this
is no-doubt an aspect that will also be considered during the
internal disciplinary proceedings. The effect of the alcohol
consumption and concomitant intoxication can however not be ignored
when punishment is meted out. The court also must consider that the
appellants are unfit to possess a firearm. This fact, itself,
will
gravely affect the appellants' employment prospects, and is a factor
that needs to be taken into consideration. If a custodial
sentence is
suspended on condition that the appellants attend to the root cause
of the crimes, the abuse of liquor, while also
ordered pay a
substantial fine, the chances of rehabilitation improve, while
society is being paid its dues.
[26]
The order granted in this appeal does not affect or suspend the court
a
quo
's
finding
that both accused remain unfit to possess a firearm.
ORDER
In
the result, the following order is made:
1.
The appeal against sentence is upheld to the extent that the
sentences imposed are substituted with the following:
2.
The counts are taken together for purposes of sentence.
3.
Each accused is sentenced to pay a fine of R12 000,00 (Twelve
Thousand Rand), by way of two payments of R6 000,00 (Six Thousand
Rand) each, the first to be paid on or before 30 June 2021, the
second on or before 31 August 2021;
4.
In addition, each accused is sentenced to two years
imprisonment which is wholly suspended for a period of three years on
the following
conditions:
4.1.
That the accused is not found guilty of attempted murder or
any other offence of which violence towards another human being is an
element, having been committed
during
the period of suspension, for which he is sentenced to imprisonment
without the option of a fine;
4.2.
That each accused attends a minimum of 6 (six) consecutive
sessions at a branch of Alcoholics Anonymous of their choice. The
first
session to commence on or before 1 June 2021. Written
confirmation of attendance must be obtained and retained.'
E
van der Schyff
Judge
of the High Court, Gauteng
I
agree
T
Raikane
Acting
Judge of the High Court, Gauteng
Delivered:
This judgement is handed down electronically by uploading it to the
electronic file of this matter on Caselines. As a
courtesy gesture it
will be sent to the parties/their legal representatives by
e-mail. The date for hand-down is deemed to
be 29 April 2021.
Counsel
for the appellant: Adv.
ME Tshole
Instructed
by:
Wiseman S Khalishwayo Attorneys
Counsel
for the respondent: Adv. C Pruis
Instructed
by:
State Attorney
Date
of the hearing: 14
April
Date
of judgment:
29 April
[1]
2001 (1) SACR 469
(SCA) at 4780
[2]
A van der Merwe
Sentencing
SACJ
(2015)
3 415-429
,
4
1
5.
[3]
1969 (2) SA 537
(A)
540G.
[4]
S v
Matyityi
2011
(
1
)
SACR (SCA) 40 at para [16].
[5]
United
Nations
Criminal
justice
assessment toolkit
-
Custodial
and
Non-Custodial measures:
Alternatives
to
Incarceration"
(2006).