Director of Public Prosecutions v Mngoma (404/08) [2009] ZASCA 170; 2010 (1) SACR 427 (SCA) ; [2010] 2 All SA 456 (SCA) (1 December 2009)

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[2009] ZASCA 170
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Director of Public Prosecutions v Mngoma (404/08) [2009] ZASCA 170; 2010 (1) SACR 427 (SCA) ; [2010] 2 All SA 456 (SCA) (1 December 2009)

THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 404/08
THE DIRECTOR OF PUBLIC PROSECUTIONS APPELLANT
and
KWESTA MNGOMA RESPONDENT
Neutral citation:
Director
of Public Prosecutions v Mngoma
(404/08)
[2009] ZASCA 170
(1 December 2009)
Coram:
Mthiyane, Lewis,
Malan, Bosielo JJA et Griesel AJA
Heard:
23 NOVEMBER 2009
Delivered:
1 DECEMBER 2009
Summary:
Criminal Law –
Sentence – Accused sentenced to five years' imprisonment in terms
of
section 276(1)(i)
of the
Criminal Procedure Act 51 of 1977
– On
appeal by State sentence held to be disturbingly inappropriate and
replaced with sentence of ten years’ imprisonment.
______________________________________________________________
ORDER
On appeal from: Eastern Cape
High
Court Grahamstown
(A R
Erasmus J sitting as court of first
instance).
1. The appeal is upheld.
2. The sentence imposed on the respondent by the high
court is set aside and replaced with the following:
'The accused is sentenced to imprisonment for a period
of 10 years.'
JUDGMENT
Bosielo JA
(Mthiyane, Lewis,
Malan, JJA et Griesel AJA concurring)
[1] The respondent (to whom I shall refer as the
accused) was charged and convicted of murder with on 22 August 2007
in the Eastern
Cape Division of the High Court, sitting in
Grahamstown. He was sentenced to imprisonment for five years in terms
of
s 276(1)
(i) of the
Criminal Procedure Act 51 of 1977
. The
appellant (to whom I shall refer as the State) was granted leave to
appeal against the sentence to this court in terms of
s 316B.
[2] The question to be answered in this appeal is
whether a sentence of five years’ imprisonment in terms of
s 276(1)
(i) for the murder of the accused's live-in lover by strangling her
is appropriate.
Section 276(1)
(i) provides for 'imprisonment from
which such a person may be placed under correctional supervision in
his discretion by the Commissioner.'
The State contends that, given
the circumstances under which the deceased was killed, the sentence
is startlingly inappropriate
and induces a sense of shock. On the
other hand, the accused contends that the sentence is appropriate and
should be left undisturbed.
[3] In order to answer this question, a brief outline of
the facts of this case is necessary. The tragic facts of this matter
are
common cause. These are captured succinctly in the accused's
written plea explanation tendered in terms of
s 112(2)
, which was
accepted by the State. The accused was involved in a love
relationship with the deceased, spanning a period of some
six years.
From this relationship one child was born. On 8 August 2006, whilst
on his way home the accused saw a man emerging from
his home. Upon
arrival at home, the accused confronted the deceased and asked who
had been sleeping on his bed which was untidy.
Instead of responding
the deceased hid her face. The accused concluded that the deceased
was unfaithful to him. Angered by this
discovery, he then assaulted
the deceased and chased her away from his home.
[4] Four days later, the respondent and the deceased
were walking together to Cathcart. The deceased was leading the way
when all
of a sudden the accused, who apparently had been seething
with anger at the deceased for cheating on him, threw a stone at her
head causing her to fall to the ground. He then strangled her with a
lace from his soccer boot until she stopped breathing. He then
tied
her to a tree and left the scene. He later wrote a note and left it
with her to create the impression that she had committed
suicide.
[5] In his plea explanation, the accused admitted that
when he was choking her, he realised she might die. Notwithstanding
this,
he continued to strangle her until she stopped breathing. The
accused further admitted that he knew that his actions were unlawful.

His explanation for this behaviour was that he was under severe
provocation and emotional stress caused by his suspicion that the

deceased was cheating on him. The situation was exacerbated by
serious doubt that he suddenly entertained as to whether the child

that she was carrying was his. The deceased was seven months pregnant
at the time.
[6] The main contention advanced on the State's behalf
on appeal was that, given the nature of the offence and the
circumstances
under which the murder was committed, a sentence of
five years' imprisonment in terms of
s 276(1)
(i) is shocking and
startlingly inappropriate. It was submitted that the judge
a
quo
failed to have regard to the gravity of
the offence committed by the accused and that the sentence imposed
was too lenient in the
circumstances.
[7] On the other hand, counsel for the accused, relying
on the judgment of this court in
S v Mvamvu
2005 (1) SACR 54
(SCA), contended that his
personal circumstances and the peculiar circumstances under which the
offence was committed called for
the imposition of a sentence which
would give recognition to the individualisation of punishment. We
were urged to take cognizance
of the accused's lack of skills in
anger management. On the evidence his anger was 'bottled' up for four
days before it exploded
into the commission of the murder. It was
contended that the accused acted under an extreme state of emotional
stress caused by
the deceased's infidelity. This affected the
respondent so much that he lost control of himself so it was argued.
Counsel contended
further that it was clear from a combination of the
accused's personal circumstances that he is a person endowed with
positive
attributes and who has the potential to be rehabilitated.
[8] In answering the question whether the sentence
imposed on the accused is disturbingly disproportionate, it is
crucial to bear
in mind that the deceased was murdered four days
after the accused had caught her under suspicious circumstances. In
other words
the accused did not act on the spur of the moment. It is
common cause that the accused chased the deceased away on that day
(which
was a Tuesday). The accused and the deceased met on Wednesday
and Thursday. Notably the accused did not assault the deceased. On

Saturday, four days later, the accused suddenly flared up and
assaulted the deceased before killing her.
[9] However, it is necessary in the evaluation of an
appropriate punishment that due and proper consideration be given to
all mitigating
circumstances which are in accused's favour. This is
particularly important in the present matter because of the
applicability
of the minimum sentence provisions which require that a
sentence of fifteen years' imprisonment be imposed unless we find
substantial
and compelling circumstances to be present. (See
S
v Mvamvu
para 3.) The accused was 24 years
old at the time; he had only progressed up to standard 5 in his
scholastic career; for all intents
and purposes he can be described
as uneducated and unsophisticated; because of his low level of
education, he was only able to
do odd jobs; he had been living with
the deceased as a live-in lover for 6 years and they had one child
together. Importantly,
the accused was a first offender. He pleaded
guilty to the charge and showed genuine penitence. The court below
found the form
of intent to be
dolus
eventualis
and not
dolus
directus.
There is no doubt that these are
positive factors in favour of the accused.
[10] In considering an appropriate sentence, the court
below acknowledged the fact that violence is prevalent in our
society, particularly
violence committed by men against women. It
described the accused's conduct as deplorable. Furthermore, the court
acknowledged
that the interests of society dictate that our courts
should send a strong message to the public that violence will not be
tolerated.
I can find no fault with this approach. However, the court
found that a combination of the accused's personal circumstances and

in particular the circumstances which led to this tragic event are
sufficiently weighty and cogent to qualify as substantial and

compelling circumstances justifying a lesser sentence than the
prescribed one. In argument before us the State conceded that there

were substantial and compelling circumstances present which justified
a lesser sentence. However, the State contended that even
with the
presence of substantianal and compelling circumstances the sentence
imposed by the trial court on the respondent is shockingly

inappropriate. The state urged this court to set the sentence aside
and to substitute a sentence of between 10 to 12 years' imprisonment.
[11] The powers of an appellate court to interfere with
a sentence imposed by a lower court are circumscribed. This is
consonant
with the principle that the determination of an appropriate
sentence in a criminal trial resides pre-eminently within the
discretion
of the trial court. As to when an appellate court may
interfere with the sentence imposed by the trial court, Marais JA
enunciated
the test as follows in
S v Malgas
2001 (1) SACR 469
(SCA) at p 478 d-g:
'A court exercising appellate jurisdiction cannot, in
the absence of material misdirection by the trial court, approach the
question
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 discretion, an appellate Court is of course entitled
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 appellate Court would have imposed had it been the trial
court is so marked that it can properly
be described as "shocking",
"startling" or "disturbingly in appropriate".'
[12] During argument before us, counsel for the State
did not argue that there was any misdirection on the part of the
trial court.
The major thrust of the argument on behalf of the State,
was that the sentence of imprisonment for five years subject to
s
276(1)(i)
is shockingly inappropriate. It was furthermore argued that
the sentence imposed is a radical departure from the benchmark of 15

years prescribed in
s 52(1)(a)(i)
read with
Part II
of Schedule 2 of
the
Criminal Law Amendment Act 105 of 1997
.
[13] I agree with the trial court's finding regarding
the existence of substantial and compelling circumstances. It cannot
be denied
that at the time of the murder, the accused was under
serious provocation, hurt and anger caused by the deceased's
infidelity.
This is understandable. However, this does not excuse the
accused's conduct. Viewed against the grim facts of this case, I
agree
with the State's contention that the sentence imposed on the
accused is shocking and startlingly disproportionate to the gravity

of the crime that he committed. The sentence imposed on the accused
is in my view inappropriate and distorted in favour of the
accused
without giving sufficient weight to the gravity of the offence and
the interests of society. For a sentence to be appropriate
it must be
fair to both the accused and society. Such a sentence must show a
judicious balance between the interests of the accused
and those of
society.
[14] A failure by our courts to impose appropriate
sentences, in particular for violent crimes by men against women,
will lead to
society losing its confidence in the criminal justice
system. This is so because domestic violence has become pervasive and
endemic.
Courts should take due cognisance of the salutary warning
expressed by Marais JA in
S v Roberts
2000
(2) SACR 522
(SCA) para 20 where he stated:
'It [the sentence] fails utterly to reflect the gravity
of the crime and to take account of the prevalence of domestic
violence
in South Africa. It ignores the need for the courts to be
seen to be ready to impose direct imprisonment for crimes of this
kind,
lest others be misled into believing that they run no real risk
of imprisonment if they inflict physical violence upon those with

whom they may have intimate personal relationships.'
The sentence imposed on the accused in the present
appeal fails to reflect an appreciation of this warning.
[15] I accept that the circumstances in which the
accused found himself evoke a measure of sympathy for him. His trust
in the deceased
was shattered. In all likelihood, he felt seriously
betrayed by the deceased. However, one should not allow 'maudlin
sympathy'
for the accused to unduly influence one's objective and
dispassionate consideration of an appropriate sentence. I am of the
view
that the sentence imposed is so disturbingly lenient that it has
the effect of trivialising violence. Moreover, the sentence imposed

on the accused differs markedly from the sentence which I would have
imposed had I been sitting as the trial court. In my view,
the
disparity is so striking that it can properly be described as
'shocking', 'startling' or 'disturbingly inappropriate.' Accordingly

this court is at large to interfere with the sentence and impose what
it considers to be an appropriate sentence.
[16] Having given proper and due consideration to all
the circumstances, I am of the view that the aggravating features of
this
case far outweigh the mitigating circumstances. A sentence of
imprisonment for 12 years appears to me to be appropriate. However,

the accused has already served some 10 months in prison. He was
sentenced on 27 August 2007 and released into correctional
supervision
by the Commissioner in terms of
s 276(1)(i)
on 28 June
2008. It is fair and appropriate that this period as well as that
served while under correctional supervision be taken
into account in
considering an appropriate sentence.
[17] 1. The appeal upheld.
2. The sentence imposed on the respondent by the high
court is set aside and replaced with the following:
'The accused is sentenced to imprisonment for a period
of 10 years.'
………………
.
L O BOSIELO
JUDGE OF APPEAL
APPEARANCES:
FOR APPELLANT: Mr D Els
Instructed by
Director of Public
Prosecutions, Grahamstown
Director of Public
Prosecutions, Bloemfontein
FOR RESPONDENT: Ms S Kruger
(attorney)
Instructed by
Grahamstown Justice Centre,
Grahamstown
Bloemfontein Justice Centre,
Bloemfontein