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[2019] ZAGPPHC 95
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S v Mashego (CC142/2017) [2019] ZAGPPHC 95 (22 March 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISON,
PRETORIA
CASE NUMBER: CC
142/2017
22/3/2019
THE
STATE
Versus
THAKATSO
MASHEGO
SENTENCE JUDGMENT
Sardiwalla J,
[1]
The accused in this matter has been found guilty of one count of
culpable homicide.
[2]
It now remains for me to sentence him. To reach an appropriate
sentence, this court is duty-bound
to consider the nature and the
seriousness of the offence that the accused has been found guilty of,
the personal circumstances
of the accused as well as the interests of
society. I am also duty-bound to take into consideration the main
purposes of punishment;
namely retribution, deterrence, prevention
and rehabilitation. All these must be accorded due weight in any
sentence.
[3]
In
S v RO and Another
2000 (2) SACR 248
(SCA)
,
Heher JA said the following at paragraph 30:
“
Sentencing
is about achieving the right balance or in more high-flown terms,
proportionality. The elements at play are the crime,
the offender,
the interests of society with different nuance, prevention,
retribution, reformation and deterrence. Invariably there
are
overlaps that render the process unscientific, even a proper exercise
of the judicial function allows reasonable people to
arrive at
different conclusions.”
Finding
an
appropriate sentence is a challenge faced by criminal courts daily as
sentencing is not a perfect exercise. What complicates
this even more
is that there may be more than one appropriate sentence in a
particular case.
SS
Terreblanche
Guide
to Sentencing in South Africa, second edition, states that an
appropriate sentence as determined by a trial judge need not
be the
only appropriate sentence. On page 146, paragraph 3.1, line 5, the
learned author states the following:
“
In
the light of the fact that the presiding officer is endowed with a
wide discretion in the imposition of the sentence, appropriateness
tends to be subjective judgment according to the views of the
sentencing officer.”
In
footnote
110
the author cites
S
v Martin
1996 (2) SACR 378
(W) at 380A-B
in this regard. Also cited in the footnote is
Smith
v Queen
1987 (34) CCC (3d) 97 at 109.
“
Sentencing,
at the best of times, is an imprecise and imperfect procedure and
there will always be a substantial range of appropriate
sentences.”
This
was cite
d
in
S
v Vries
1996 (2) SACR 638
(Nm) at 643F-G
.
[4]
I now deal with the evidence in mitigation and in aggravation.
MITIGATION
OF SENTENCE AND AGGRAVATING CIRCUMSTANCES
Personal
circumstances
[5]
The accused is 27 years old and was a member of the Metro Police
Tshwane. He is currently unemployed.
He has no previous convictions.
The seriousness of the
offence
[6]
The accused was found guilty of culpable homicide which is a very
serious offence. Counsel for
the state incorrectly referred to
negligence in this matter as gross negligence that bordered on
dolus
eventualis
.
[7]
On his version the accused correctly carried out the scope of his
duties which on the day in
question was to conduct stop and approach
duties. His attention was drawn to the deceased’s vehicle by
Constable Baloyi indicating
that the vehicle did not display a back
registration number plate. He therefore approached the deceased and
requested him to produce
his licence but the deceased refused to
comply. He thereafter proceeded to the front of the vehicle
demonstrating to the deceased
to stop and pull over to the painted
island. The deceased still did not comply but instead after making
yet another rude gesture
to the accused, bumped the accused twice and
on persistence of the third occasion, the accused was under the
lawful belief that
his life was in imminent danger from being driven
over by the deceased’s vehicle. In this instance the evidence
shows that
he thought there was a reasonable possibility that his
life was in danger. Using a lethal weapon, a loaded firearm, the
accused
fired one shot at the deceased.
[8]
In his evidence the accused confirmed that a reasonable person would
have fired at the tyres
but that as the deceased was manoeuvring his
vehicle during his attempt to injure the accused it was impossible
for him to do so.
It was never his intention to kill the deceased and
this court accepted that. However, that does not change the fact that
the deceased
died of his inflicted wounds and that the accused had
been trained in the use of and in the handling of firearms. In my
view, though
this may be aggravating, the accused who testified to
his state of mind indicated that he was only trained in shooting at
stationary
targets and that he reacted to the imminent threat on his
life given that this was the third attempt by the deceased to run him
over or injure him. The Court found that the accused’s version
on the evidence presented was reasonably possibly true.
[9]
Mitigating factors are inter alia the following:
-
The
accused is a first offender and is remorseful.
-
This
court accepts as a mitigating factor the conduct of the accused after
the incident by trying to assist the deceased which indicated
that
the accused wanted the deceased to live.
The interests of
society
[10]
The interests of society demand that those who commit crimes must be
punished and, in deserving cases, that
they be punished severely. As
counsel for the defence correctly submitted, we ought to
differentiate between what is in the public
interest and what society
wants. Members of society cannot always get what they want as courts
do not exist to win popularity contests,
but exist solely to dispense
justice. What may appear to be justice to the uninformed general
public, however, may not necessarily
be justice. The general public
may not even know the difference between punishment and vengeance –
a distinction which is
very important when a court is exercising its
sentencing function.
[11]
Fortunately, regardless of the level of understanding among the
general public, South Africa has a Constitution
which applies to
everyone and which protects everyone, including those who transgress
the laws. As a country we have advanced to
a modern era of balancing
all the relevant factors. Retribution, which, however, from the legal
point of view is not the same as
vengeance, has, inter alia, yielded
ground to other purposes of punishment.
[12]
In
R v Karg
1961 (1) SA 231
(A)
, Schreiner JA
stated the following at 236A-C:
“
While
the deterrent effect of punishment has remained as important as ever,
it is, I think, correct to say that the retributive
aspect has tended
to yield ground to the aspects of prevention and correction. That is
no doubt a good thing, but the element of
retribution, historically
important, is by no means absent from the modern approach.
It is not wrong that the
natural indignation of interested persons and of the community at
large should receive some recognition
in the sentences that courts
impose, and it is not irrelevant to bear in mind that if sentences
for serious crimes are too lenient,
the administration of justice may
fall into disrepute and injured persons may incline to take the law
into their own hands. Naturally,
righteous anger should not becloud
judgment.”
It is impossible to deal
with the interests of society without reference to the deceased and
his family.
CONCLUSION
[13]
There is a delicate balance between the crime, the criminal and the
interests of society. The extent of
the negligence in culpable
homicide cases plays an important role in coming to an appropriate
sentence which should neither be
too severe, nor too light. In
S
v Nxumalo
1982 (3) SA 856
(A)
at 861G-H, Corbett JA
stated the following:
“
It
seems to me that in determining an appropriate sentence in such
cases, the basic criterion to which the court must have regard
is the
degree of culpability or blameworthiness exhibited by the accused in
committing the negligent act.
Relevant to such culpability
or blameworthiness would be the extent of the accused’s
deviation from the norms of reasonable
conduct in the circumstances
and the foreseeability of the consequences of the accused’s
negligence. At the same time the
actual consequences of the accused’s
negligence cannot be disregarded.”
Counsel for the defence
referred this court to a number of cases where the accused were found
guilty of culpable homicide.
The accused’s version in this case was that he was hoping to
prevent the deceased’s vehicle from injuring or killing
him.
[14]
State v Warren Vorster
(Case number 125/2009 in the
South Gauteng High Court) on imposing sentence, the court found that:
“
A
court should strive for balance between the interests of society, the
interests of the accused and the seriousness of the offence.
A
sentence which over-emphasises one element… cannot be balanced
and it is likely to be a wrong sentence.
Finally, in imposing a
sentence, a court should be merciful. This means that it should
sentence the accused with a full appreciation
for human frailties and
for the accused’s own particular circumstances at the time of
the offence.
Where the offence is one of
negligence, I believe this is particularly the case for ordinary
everyday people who are not criminals
are capable for the kind of
negligence that has tragic and lifelong consequences.
A court should strive to keep
such a person out of prison where this is possible. As I have said,
the loss of an innocent life is
almost always serious and society
tends to be even more shocked when the victim is a child, as here.
Members of the child’s
family are particularly badly affected.
I have considered the needs
of society and I believe that these would be best served by it
knowing and seeing that Mr Vorster is
donating some of his time to
the service of other less privileged people.”
The court further said
the following:
“
It
is being done for two purposes: To try to show society and Kgopotso’s
family that Mr Vorster is being punished, albeit
relatively lightly
for what he has done and, secondly, to assist Mr Vorster to interact
with needful people and to help him to
find some form of emotional
equilibrium while doing so.
I have decided that the
appropriate sentence in this case is one of 3 years’
imprisonment suspended completely for 5 years,
on condition that,
firstly, he is not again convicted of culpable homicide caused by an
assault and committed during the period
of imprisonment and,
secondly, that he performs 300 hours of community service over one
year which commences running on the date
of the sentence…
He is to be placed under the
supervision of Mr Phillip Hall of the Rotary Club of Blackheath. Mr
Hall will decide upon the work
which Mr Vorster is to do in assisting
the Rotary Club in any of the various charitable undertakings which
it engages in.”
[15]
It is clear that the facts in Vorster are dissimilar to the facts in
the present case. However, like Vorster,
the accused was reacting to
a perceived threat and that immediately after the incident had
occurred, like the accused in the Vorster
matter, the accused tried
to resuscitate the deceased and that he was very emotional and
clearly has suffered trauma from the incident.
[16] In the matter of the
State v Siyabonga Mdunge
(RC777/12 Regional Court
Pietermaritzburg), the accused and the deceased were sleeping at
their home when at about 00:30 the accused
was awoken by a noise as
if a window was being opened. He thought a burglar was trying to get
into the house. Fearful for his life
he grabbed his firearm from his
bedside pedestal drawer and made his way to the entrance of the room.
He could hear the noise coming
from the bathroom. Slowly he made his
way to the bathroom door to investigate. As he reached the bathroom
door it suddenly opened.
Startled and afraid for his life, he
discharged his firearm thinking that the person who opened the door
was a burglar. That person,
however, was not an intruder, but his
wife. He rushed her to hospital, but it was too late. The accused in
Mdunge was arrested
for murder, but entered a plea and sentence
agreement with the National Prosecuting Authority (NPA) in terms of
section 105A of
the Criminal Procedure Act. In terms of the
agreement, the National Prosecuting Authority accepted a plea of
guilty to culpable
homicide. The National Prosecuting Authority
agreed to the following sentence in the plea and sentence agreement:
“
It
is agreed that a just sentence in all the circumstances shall be that
the accused is sentenced to 8 years’ imprisonment
which is
wholly suspended for a period of five years on the following
conditions:
1.
The
accused is not again convicted of murder or assault or any other
offence of which assault is an element during the period of
suspension.”
[17]
Although in both cases there are striking differences to the facts of
the present matter, it remains that
all accused were reacting to
instances where they believed their lives to be threatened and in
danger. The huge distinguishing
feature in this case is that the
accused is a trained police officer with an expectant level of skill
in dealing with life threatening
circumstances and situations. This
fact as well as additional factors would ordinarily make the present
case so serious that a
suspended sentence would not be appropriate.
[18]
However in my view I disagree for the following reasons. The accused
although he was trained in the use
of firearms is a young member
starting out his career at the Metro police. I agree that in his
position, a high degree of responsibility
would be required from such
a person. For that reason an appropriate sentence should neither be
too light, nor too severe. The
former might cause the public to lose
confidence in the justice system and people might be tempted to take
the law into their own
hands. On the other hand, the latter might
break the accused and the result might be just the opposite of what
the punishment set
out to do, which ultimately is to rehabilitate the
accused and to give him an opportunity, where possible, to become a
useful member
of society once more.
[19] I
have considered all the evidence placed before me and all the
submissions and argument by counsel. I have
weighed all the relevant
factors, the purposes of punishment and all forms of punishment,
including restorative justice principles.
I have also taken into
account the seriousness of the offence which led to the death of the
deceased, the personal circumstances
of the accused and the interests
of society. I have also taken the particular circumstances of the
accused at the time of the offence
into account.
[20]
Having regard to the circumstances in the matter, I am of the view
that a non-custodial sentence is warranted
in the present
circumstances as a long sentence would not be appropriate either as
it would lack the element of mercy. A sentence
cannot be said to be
appropriate without the feelings of mercy for the accused and hope
for his reformation. (See
S v
Mhlongo
1994 (1) SACR 584
(A) at 588J-589B
) I am mindful, however, of the
fact that true mercy is an element of justice. (See
S v V
1972 (3) SA 611
(A) at 614
)
[21] The
following is what I consider to be a sentence that is fair and just,
both to society and to the accused:
1. On the count
of culpable homicide: The sentence imposed is 3 years’
imprisonment, wholly suspended for 5 years on
condition that within
the period of suspension the accused is not found guilty of a crime
where there is negligence involving the
use of a firearm.
2. That the
accused perform 300 hours of community service over a period of one
year to commence from the date of the running
of the sentence.
3. The
Department of Correctional Services is directed to identify the
appropriate official within or outside of its department
to supervise
compliance with the order.
SARDIWALLA
J
JUDGE
OF THE HIGH COURT
APPEARANCES
Date
of hearing
:
19 March 2019
Date
of judgment
: 22 March 2019
Counsel
for the State
: Adv.: C Harmzen
Counsel
for the Defendant :
Adv.: M E Phiyega