About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2019
>>
[2019] ZAGPPHC 243
|
|
Mchunu v S (A162/2018) [2019] ZAGPPHC 243 (13 June 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
CASE NO: ·
A162/2018
13/6/2019
In
the appeal between -
SIBUSISO
MCHUNU
Appellant
and
THE
STATE
Respondent
JUDGMENT
STRYDOM
AJ
[1]
This
is an appeal against the sentence imposed by the Regional Court
Magistrate (''the Magistrate") on the accused after he
was
convicted of one count of being in possession of a firearm and one
count of being in possession of ammunition in contravention
of
sections 3 and 90 of the
Firearms
Control Act 60 of 2000 ("the Act").
[2]
On
count 1, the illegal possession of a firearm, the appellant was
sentenced to six years imprisonment and on count 2, the illegal
possession of ammunition, the accused was sentenced to one year's
imprisonment. The Magistrate ordered that the sentence on count
2
should be served concurrently with the sentence on count 1.
[3]
On
behalf of the appellant, an application was made for leave to appeal
against his sentence only. The Magistrate granted the appellant
leave
to appeal against the sentence and made the following finding:
"The court therefore found that maybe I
was too lenient in your sentence therefore your application fur leave
to sentence is
granted."
[4]
When
this finding is considered it appears as if the magistrate granted
leave to appeal on sentence on the basis that the sentence
which was
imposed was too lenient. It is unclear to this court on what basis
this statement was made. If this statement was sarcastically
made, it
is unjudicial and unfortunate. Magistrates should refrain from
commentary of this nature especially as a part of its order.
It
confuses the issue for consideration by a court of appeal as, if the
Magistrate was of the view that the sentence was too lenient,
then
the Magistrate should not have granted leave to appeal. The test to
be applied is whether there is a reasonable prospect of
success on
appeal from the appellant's point of view. If · the sentence,
according to the Magistrate, is too lenient, leave
should not have
been granted.
[5]
As
part of the heads of argument filed on behalf of the appellant, Mr
Van As, appearing on behalf of the appellant, took a point
in
limine.
This point pertains to count
2, the possession of ammunition. In the appellant’s heads of
argument, it was submitted that
the trial court erroneously convicted
the appellant on count 2 as the State failed to prove that the
ammunition found in the possession
of the appellant was indeed
ammunition as defined in the Act. This point taken as a point
in
limine
is nothing less than an
attempt to broaden this appeal to include an appeal against the
conviction. Without leave to appeal being
granted either by the
Magistrate or on petition there is no appeal on conviction before
this court. Accordingly, this court will
not consider this appeal
against the conviction of the appellant on count 2. That leaves the
appeal against sentence to be considered.
[6]
It
was argued that the sentence imposed by the Magistrate was shockingly
harsh and inappropriate and that this court is entitled
to intervene
by setting the sentence aside and to replace it with a suitable
sentence. The sentence, so it was argued, should take
into
consideration the expectations of the community and the seriousness
of the offence committed, as well as the appellant's personal
circumstances.
[7]
It
is trite that a court of appeal can only interfere with a
discretionary sentence imposed by a lower court if the lower court
misdirected itself and/or if the sentence imposed induces a sense of
shock. This appeal against sentence was argued on the basis
of the
sentence being harsh and shockingly inappropriate.
[8]
The
circumstances under which the appellant was arrested should first be
considered.
[9]
The
appellant, together with three others, was in a vehicle which was
stopped by the police. The police searched the vehicle and
found the
firearm on the back seat of the vehicle. Later on. the appellant
admitted that the firearm belonged to him and he informed
the police
that he was in fact on his way to the police station to hand in the
firearm. He said that he earlier picked the firearm
up at a rubbish
site. This version of the appellant was in my view correctly rejected
by the Magistrate and the appellant was found
guilty on the two
counts mentioned hereinabove.
[10]
In
terms of section 121 of the Act, when read with schedule 4 thereto,
it provides for a maximum sentence of 15 years imprisonment
for
anyone who unlawfully possesses a firearm. This will include the
firearm in relation to which the appellant was convicted.
The fact
that a maximum sentence is prescribed does not mean that a convicted
accused should be sentenced to such a long term imprisonment.
Each
case should be considered on its own merits, including whether the
firearm was automatic, semi-automatic or a revolver as
is the case
in
casu.
Also of importance is whether
it has been proven if this firearm was used in criminal activity.
[11] On behalf of the
appellant, Mr van As referred the court to the judgment of
S
v Madikane
2011 (2) SACR 11
(ECG) par. [29]
+
[30].
In
this matter the court examined sentences imposed by other courts for
possession of firearms. The court acknowledged that the
facts of all
these matters referred to may differ, but concluded that a pattern
emerged indicating that sentences are in the region
of two years
imprisonment for possession of a firearm. The court does not intend
to refer to all of these judgments but on a consideration
thereof, it
is clear that the sentence imposed by the magistrate
in
casu
is an extraordinary long
sentence for being in possession of a revolver.
[12]
On behalf of the State it was argued
that the sentence was not shockingly inappropriate, and that the
Magistrate was in the best
position to consider the sentence. It was
argued that the prevalence of the illegal possession of firearms is a
scourge in society
and is on the increase. The court will take this
into consideration.
[13]
The appellant is a first offender and 27
years old. From this it can be concluded that the appellant does not
have the propensity
to commit criminal offences and is there ore a
good candidate for rehabilitation. Although it remains unclear why
the appellant
possessed the firearm, the only reasonable inference to
be drawn from the circumstances of this case is not that the
appellant
was going to use this firearm to commit a criminal deed.
There may be a suspicion in this regard but a mere suspicion is not
enough
to conclude that this is the situation. In my view, the
magistrate over-emphasised the interests and the expectations of the
community
as to what an appropriate sentence should be. This the
Magistrate did at the cost of considering the personal circumstances
of
the appellant, and the fact that he is a first offender.
[14]
This court is of the view that the
direct
imprisonment
of six years for possession of a firearm in the circumstances of this
case is shockingly inappropriate and disproportionate
to sentences
for similar convictions as reported in our law reports.
[15]
The possession of a firearm remains a
serious offence and the sentence imposed by this court will hopefully
deter others from doing
so.
[16]
This court is of the view that a
sentence of three years imprisonment on count 1 would be the
appropriate sentence. The sentence
on count 2 should not be
interfered with, but this court will also order that the sentence of
one year imprisonment should be served
concurrently with the three
year sentence on count 1.
[17]
The following order is made:
(1)
The Magistrate's sentence of six
years imprisonment in relation to count 1 is set aside and replaced
with a sentence of three years
imprisonment, backdated to 6 February
2018.
(2)
The sentence of one year
imprisonment on count 2 will stand and it is ordered that this
sentence should be served concurrently with
the sentence on count 1.
R. STRYDOM
ACTING JUDGE OF THE HIGH COURT GAUTENG
DIVISION, PRETORIA
I concur and it is so ordered
E. M. KUBUSHI
JUDGE OF THE HIGH COURT GAUTENG DIVISION,
PRETORIA