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[2018] ZAKZDHC 11
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S v Pillay (CCD48/17) [2018] ZAKZDHC 11; 2018 (2) SACR 192 (KZD) (7 May 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU–NATAL
LOCAL DIVISION, DURBAN
CASE NO. CCD48/17
In
the matter between:
THE
STATE
v
DHAYALAN
PILLAY
ACCUSED
JUDGMENT ON SENTENCE
HENRIQUES
J
Introduction
[1]
Violence by men towards women is endemic in this country. South
Africa’s femicide rate is five times higher than the global
average. It is the duty of courts to impose harsh sentences to
recognise the seriousness of the situation.
[2]
The accused was convicted of the murder of Annelene Pillay (the
deceased), committed under circumstances contemplated in s 51,
Part 1
of Schedule 2 of the Criminal Law Amendment Act 105 of 1997 (CLAA),
in that the State alleged the offence was planned or
premeditated
(count 1), and, possession of a firearm in contravention of
s 3
of
the
Firearms Control Act 60 of 2000
read with
s 51
,
Part II
of
Schedule 2 of the CLAA (count 2).
[3]
Imposing sentence is one of the most difficult tasks which a
presiding officer has to grapple with. It has been described as
a
‘painfully difficult problem’ and it involves a careful
and dispassionate consideration of all factors.
[4]
The court must consider the factors referred to in
S
v Zinn
,
[1]
being the interests of society, the personal circumstances of the
accused and the nature of the offences that have been committed.
The
court must also consider the recognised objectives of sentencing
being prevention, rehabilitation, deterrence and retribution.
[5]
The seriousness of the offences, the circumstances under which they
were committed and the victim are also relevant factors
in respect of
the last element of the triad. The personal circumstances of the
accused including his age, education, dependants,
his previous
convictions (if any), his employment and other relevant conduct or
activities call for consideration in respect of
the second element.
An appropriate sentence should also have regard to or serve the
interests of society, as the first element
of the
Zinn
triad,
which is the protection of society’s needs, and the deterrent
of would-be criminals.
Issue
[6]
The issue which concerns this court is whether to impose the
prescribed minimum sentences of life imprisonment in respect of
count
1 and 15 years’ imprisonment in respect of count 2, or whether
to deviate from such sentences?
Criminal
Law Amendment Act
[7
]
The minimum sentences have been ordained to be the sentences that
must ordinarily be imposed unless the court finds substantial
and
compelling circumstances which justify a departure therefrom.
[2]
In addition the Supreme Court of Appeal has indicated that the
minimum sentences must not be departed from for ‘flimsy
reasons’
and are the starting point when imposing sentence.
[8]
In terms of
S
v Malgas
,
[3]
in the event of substantial and compelling circumstances not
existing, then a sentencing court is entitled to depart from imposing
the prescribed minimum sentences, if it is of the view that having
regard to the nature of the offence, the personal circumstances
of
the accused, and the interests of society, it would be
disproportionate and unjust to do so. This is often referred to as
the
proportionality test.
What
are substantial and compelling circumstances?
[9]
When sentencing an accused person, a court has to evaluate all the
evidence, including the mitigating and aggravating factors,
to decide
whether substantial and compelling circumstances exist. A court must
be conscious of the fact that the legislature has
ordained a
particular sentence for such an offence and there must be truly
convincing reasons to depart therefrom which reasons
must be
stipulated on the record.
[10]
It is for this reason that courts have not attempted to define what
is meant by substantial and compelling circumstances. This
is in
keeping with the principle that the imposition of sentence is
pre-eminently the domain of a sentencing court. A court must
consider
all the circumstances of the case, including the many factors
traditionally taken into account by courts when sentencing
offenders.
For circumstances to qualify as substantial and compelling, they need
not be ‘exceptional’ in the sense
that they are seldom
encountered or rare, nor are they limited to those which diminish the
moral guilt of the offender.
[11]
Where a court is convinced, that after consideration of all the
factors, an injustice would be done if the minimum sentence
is
imposed, then it can characterise such factors as constituting
substantial and compelling circumstances and deviate from imposing
the prescribed minimum sentence.
[12]
In
S v
Vilakazi
[4]
the court explained that particular factors, whether aggravating or
mitigating, should not be taken individually and in isolation
as
substantial or compelling circumstances. Ultimately, in deciding
whether substantial and compelling circumstances exist, one
must look
at traditional mitigating and aggravating factors and consider the
cumulative effect thereof. When sentencing, a court
takes into
account the personal circumstances of an accused. However, only some
of these carry sufficient weight to tip the scales
in favour of the
accused to impact on the sentence to be imposed. Often the fact that
the accused is young and is a first offender
has the effect of
reducing a sentence, as there is potential for the offender not to
repeat the crime and to be rehabilitated.
Mitigating
and aggravating circumstances
[13]
The accused did not lead evidence in mitigation of sentence but Mr
Mkhumbuzi
made submissions from the bar to be considered by
the court when sentencing the accused and which he argued should be
regarded
as substantial and compelling circumstances.
[14]
Mr
Singh
, on behalf of the State, during the sentencing part
of the proceedings, led the evidence of the deceased’s sister
Chrisantha
Pillay, the evidence of Dr Hina the pathologist, and
presented exhibit “1”, which is the CCTV footage
depicting the
incident. This evidence was submitted to show that no
substantial and compelling circumstances existed warranting a
deviation from
the prescribed minimum sentence, and in addition, to
show that the offence in count 1 was planned and premeditated.
[15]
I shall now deal with all the evidence and the submissions made by
the parties during the sentencing proceedings and consider
these and
the triad of
Zinn
in determining the issue.
The
offender: The personal circumstances of the accused
[16]
The accused is a 32 year old unmarried man with no children. Prior to
his arrest he was involved in a relationship with the
deceased and
was looking forward to getting married and starting a family with
her. He completed Grade 11 in 2002 but was unable
to further his
studies due to financial constraints. He comes from a family of four
siblings who reside with their parents. From
the age of five his
father suffered ill-health to the extent that he was not able to
support his family financially any more. His
father required
full-time care, day and night, and as a consequence his mother, who
was the sole breadwinner in the family, assumed
responsibility for
raising all of his siblings and seeing to the responsibilities of the
household. His mother was employed as
a machinist at Rapp Clothing
earning very little.
[17]
After leaving school the accused obtained employment at Croxley
Stationery as a despatcher earning approximately R2 000 per
month.
This was from 2003 to 2005. From 2006 to 2011 he was casually
employed at Trade Centre as a stock counter, earning approximately
R120 per day. This employment he secured with the assistance of his
sister. From 2012 to 2014, he was employed at Transit Automovers
and
drove vehicles onto trucks for export to other countries and he
earned R2 400 per month. Whilst so employed he acquired skills
in
mechanics and maintenance of the vehicles and was involved in
repairs. In early 2016 he was employed at On Track Panel Beaters,
despatching invoices and quotes for damaged vehicles and delivering
vehicles to customers. He earned approximately R3 000 per month.
Thereafter, his uncle, Bolten Chetty, purchased a fleet of taxis and
because of his mechanical skills he was employed to work for
him. He
would be on call when vehicles broke down, day and night, in the
Chatsworth area. In August 2016 he was with the driver
repairing a
taxi in the Welbedacht area and was attacked. During the attack he
was robbed of his cell phone and cash and the sound
system of the
taxi. He was so traumatised by the incident that he purchased a
firearm for his safety from someone in Umlazi
and has been in
possession of an unlicensed firearm since August 2016. He continued
working for his uncle earning R3 500 per month
together with
additional cash incentives which he received from callouts. The rates
that he received from the callouts depended
on whether or not it was
a day or night callout.
[18]
He has no relevant previous convictions and no pending cases against
him and is a first offender in respect of this offence
and there is
no indication that he has the propensity to perpetrate violent
crimes. He was diagnosed with high blood pressure.
Since his arrest
on 29 November 2016, he has remained in custody, having abandoned his
bail application. In March 2017, whilst
in custody, his father died
and he did not have an opportunity to pay his last respects. He is
aware that the offences of which
he has been convicted are serious,
more so in relation to count 1, the murder of the deceased.
[19]
Mr
Mkhumbuzi
submitted the following were substantial and
compelling circumstances warranting a deviation from the prescribed
minimum sentences,
namely:
(a)
The time
the accused spent awaiting trial from the date of his arrest being 29
November 2016 up until the date of the conviction
being 23 April
2018.
(b)
Secondly,
that the accused abandoned his bail application and on all occasions
that he appeared in court, expressed his intention
to plead guilty.
Pleas were drafted on two occasions but were not accepted by the
State.
(c)
He was
gainfully employed prior to his arrest and despite this, indicated an
intention to plead guilty, knowing full well the nature
of the
sentence he was facing, being that of life imprisonment.
(d)
That in
line with the decision in
S
v Matyityi
[5]
he has expressed true remorse and regret.
(e)
His mental
and emotional state at the time of the offence must be considered and
he ought to be seen as acting with diminished responsibility.
He was
deeply in love with the deceased and feared losing her after a
relationship of ten years.
(f)
Immediately
after he committed the offence he dropped the firearm at the scene.
As he was driving to Chatsworth, had it not been
for the intervention
of his cousin who pleaded with him to hand himself over at the
Chatsworth Police Station, he would have committed
suicide.
(g)
At the time
of his arrest, he co-operated fully with the police. Prior to his
arrest he had been to the Chatsworth Police Station
where he had
attempted to hand himself over. He was told to wait for the next
shift to come on duty. Whilst waiting there, he was
experiencing
extreme anxiety and did not stay and decided to go home and return
later.
(h)
One must
also not lose sight of the fact that this was a crime of passion and
the State accepted the facts as contained in the
s 112
plea, and
there is no element of premeditation or planning.
(i)
Even though
he had 23 minutes in which he sat in his vehicle and waited for the
deceased to exit her place of employment, this time
must be construed
in favour of the accused. Even the Whatsapp messages exchanged do not
exclude the fact that he operated within
the parameters of a crime of
passion. He had attended at her workplace after making two
phone calls to her work only to be
told that she was not there. The
Whatsapp messages likewise show concern.
[20]
If one considers the triad of
Zinn
any sentence imposed must
contain an element of mercy. Although Mr
Mkhumbuzi
conceded
that the interests of society, specifically the nature of the
offence, pose great challenges insofar as sentencing is concerned,
one must not lose sight of the fact that the accused is relatively
young and that this is his first serious brush with the law.
[21]
In support of his submission that this is a crime of passion and an
instance of domestic violence, Mr
Mkhumbuzi
relied on several cases for the submission that an appropriate
sentence, given the facts, is one of 15 to 20 years’
imprisonment.
He further submitted that the cases also acknowledge
that incidences of domestic violence and femicide pose huge
challenges in
our society. The cases referred to namely
S
v Mashao
2015 JDR 2263 (GJ);
S
v Magano
2013 JDR 2733 (SCA) and
Mudau
v State
(547/13)
[2014] ZASCA 43
(31 March 2014).
Despite
the heinous nature of the crimes, sentences of 20 years’
imprisonment were imposed. In
S
v Jantjies
2014
JDR 2004 (SCA) a sentence of 10 years’ imprisonment was
imposed. As pointed out by Mr
Mkhumbuzi
the facts in
Magano
above
were similar to the facts of this matter.
I
may add that although the sentences imposed in those cases serve as a
guide, each case must be decided on the basis of its own
facts.
CCTV
footage
[22]
In aggravation of sentence the State showed the CCTV footage, exhibit
“1” depicting the shooting incident and the
manner in
which the deceased met her untimely death. It depicts the accused
driving into the workplace of the deceased, not entering
through the
normal entrance, but using a side entrance. One notices the deceased
exit her workplace approximately 23 minutes after
the accused arrived
and descend the steel fire escape stairs making her way to her
vehicle. On reaching her vehicle, the accused
is seen alighting from
his motor vehicle, walking toward her. She is then observed running
up the stairs. He approaches and fires
at her from underneath the
stairs. She falls in a freefalling position. He is then seen dropping
the firearm and running toward
his motor vehicle. He is then observed
driving away using the same route that he entered. A witness, a
fellow employee, is seen
exiting on the fire escape and observing the
deceased, and the accused driving away from the scene. The footage
corroborates Dr
Hina’s findings that the gunshot wounds were
distant entry wounds and also appears to be consistent with the facts
as contained
in the accused’s s 112(2) plea.
The
medical evidence
[23]
Dr Ziphozethu Balbalwa Hina, a state pathologist, confirmed that she
completed the post-mortem report in respect of the deceased
on 30
November 2016. Her chief post-mortem findings are contained in
exhibit “C” and record the cause of death
as being
perforating gunshot wound to the head. She testified that there were
several wounds to the head with skull fractures,
base of skull
fractures, subarachnoid haemorrhaging and brain lacerations. There
was also blood aspirated in the deceased’s
lungs which meant
that the deceased survived for approximately ten minutes after the
incident. An aggravating feature of the fall
from the steel stairs of
the fire escape was that she struck her head with such force as she
fell that she sustained a hinge type
fracture of the skull.
The
relationship between the deceased and the accused
[24]
The deceased’s sister Chrisantha Pillay testified that the
deceased was five years older than her and that she was employed
at
Bridgeport Shipping for approximately two years as a customer service
controller. She did not approve of the relationship with
the accused
and indicated that the accused was very abusive and derogatory of her
sister. She indicated that the deceased expressed
no desire to marry
the accused and because they were very close, the deceased would have
certainly mentioned it to her. She further
indicated that the
relationship between the deceased and the accused ended when the
deceased backed away from him around about
31 March 2016 shortly
after her birthday.
[25]
She confirmed that on the day she died the deceased was in
communication with her and an exchange of Whatsapp messages took
place. She confirmed that in these Whatsapp messages her sister
indicated that she was scared of the accused and that the accused
had
called Tracker and concocted a story to establish her whereabouts
after he had been unsuccessful in contacting her at her place
of
employment. She confirmed that despite the problems she alluded to
and the nature of the accused’s behaviour, her sister
chose to
stay with him for ten years.
[26]
She also testified about the qualities of the deceased and the impact
the deceased’s death had on their family especially
her
parents.
[27]
Mr
Singh
submitted that in respect of count 1 there are no
substantial and compelling circumstances warranting a deviation from
the prescribed
minimum sentence. He acknowledged however that this
was a crime of passion although to a limited extent. He indicated
that whilst
he must concede that the accused displayed some
diminished responsibility, he behaved like someone who was determined
to end the
life of the deceased shortly before her death. He conceded
however that since his arrest the accused indicated he wanted to
plead
guilty.
[28]
Although the accused has shown some remorse, he submitted that this
is not genuine remorse and referred to the decision in
S v
Matyityi
above para 13 when Ponnan JA said the following:
‘
There is, moreover, a chasm
between regret and remorse. Many accused persons might well regret
their conduct, but that does not
without more translate to genuine
remorse. Remorse is a gnawing pain of conscience for the plight of
another. Thus genuine contrition
can only come from an appreciation
and acknowledgement of the extent of one’s error. Whether the
offender is sincerely remorseful,
and not simply feeling sorry for
himself or herself at having been caught, is a factual question. It
is to the surrounding actions
of the accused, rather than what he
says in court, that one should rather look. In order for the remorse
to be a valid consideration,
the penitence must be sincere and the
accused must take the court fully into his or her confidence. Until
and unless that happens,
the genuineness of the contrition alleged to
exist cannot be determined. After all, before a court can find that
an accused person
is genuinely remorseful, it needs to have a proper
appreciation of, inter alia: what motivated the accused to commit the
deed;
what has since provoked his or her change of heart; and whether
he or she does indeed have a true appreciation of the consequences
of
those actions.’ (Footnotes omitted)
[29]
Having regard to the various annexures being “E” and “F”,
he indicated that the last communication
between the accused and the
deceased via cell phone was 2 November 2016. Thereafter, the records
indicate the next time he contacted
her was some 27 days later on 29
November 2016.
[30]
He submitted that the offence was premeditated or planned for the
following reasons:
(a) The relationship
between the deceased and the accused had terminated. The accused went
to the deceased’s workplace under
false pretences. He submitted
that this is evident from the Whatsapp exchange between the deceased
and her sister and the fact
that he had to concoct a story with
Tracker to obtain her whereabouts. If he wanted to see her, Mr
Singh
submitted, he could simply have gone inside the workplace and not
waited for her to exit. This he submitted was a deliberate act
indicating that this was thought through and not a spur of the moment
decision he made.
(b) In addition, he
indicated that from the CCTV footage it is evident that the accused
waited for approximately 23 minutes outside
the deceased’s
workplace. This he indicated gave him enough time to reconcile
himself to the fact that he intended to kill
her and went there for
that purpose. He had time to resile from his pre-planned decision. In
addition, given the timeline of the
shooting and the fact that it
happened so quickly, is indicative he submitted, of the fact that he
went there to kill her. The
fact that he did not use the normal
entrance and entered and exited through the unattended side entrance
where there is no security
was indicative of this and that it was a
carefully thought out plan.
(c) He further submitted
that if one looks at the cell phone records, these indicate the
deceased and the accused’s last telephone
contact occurred on 2
November. The accused had 27 days to plan the offence.
[31]
He submitted that given the circumstances of this offence the
prescribed minimum sentence was appropriate. Society demanded
such
sentences be imposed given the incidences of femicide and domestic
violence.
Interests
of society
[32]
Society demands that offenders be punished for their crimes. Given
the nature of the offences which have become endemic in
our society,
the legislature saw it fit to enact the CLAA. I am aware of the huge
public presence both in the lower court and when
this matter
commenced. Despite this, however, a court must not overemphasise one
factor and ultimately a balance must be struck.
In
S
v Kruger
[6]
the court remarked ‘[p]unishing a convicted person should not
be likened to taking revenge’. In my view every sentence
that
must be imposed must be tempered with a degree of mercy no matter the
crime.
[33]
A sentencing court must not over-emphasise the public interest and
general deterrence. The Supreme Court of Appeal in
S
v Scott-Crossley
[7]
para 35 said the following:
‘
Plainly any sentence imposed
must have deterrent and retributive force. But of course one must not
sacrifice an accused person on
the altar of deterrence. Whilst
deterrence and retribution are legitimate elements of punishments,
they are not the only ones,
or for that matter, even the overriding
ones.’
The
judgment further states at para 35:
‘
It is true that it is in the
interests of justice that crime should be punished. However,
punishment that is excessive serves neither
the interests of justice
nor those of society.’
[34]
As our courts have often
said the object of sentencing is to serve the public interest and not
satisfy public opinion. In
S
v Mhlakaza & another
[8]
at 518f-g Harms JA held the following:
‘
It remains the court’s
duty to impose fearlessly an appropriate and fair sentence even if
the sentence does not satisfy the
public.’
Referring
to Chaskalson P in
S
v Makwanyane & another
[9]
paras 87-89
in
which the court said the following:
‘
. . . public opinion may have
some relevance to the enquiry, but, in itself, it is no substitute
for the duty vested in the court;
the court cannot allow itself to be
diverted from its duty to act as an independent arbiter by making
choices on the basis that
they will find favour with the
public…“righteous anger should not becloud judgment”.’
[35]
Of relevance to the
determination of an appropriate sentence is whether the offence in
count 1 was planned or premeditated. In
S
v Raath
[10]
para 16 the court dealt with this:
‘
Planning and premeditation have
long been recognised as aggravating factors in the case of murder.
See
S v Khiba
1993 (2) SACR 1
(A) at 4 and
S
v Malgas
2001 (1) SACR 469
(SCA)
(2001 (2) SA 1222
;
[2001] 3 All SA 220)
at para 34. As
Terblanche
Guide to
Sentencing in South Africa
2 ed states at 6.2.2, planned criminality is more reprehensible than
unplanned, impulsive acts. However, there must be evidence
that the
murder was indeed premeditated or planned. See for example
S
v Makatu
2006 (2) SACR 582
(SCA) at paras 12-14. The concept of a planned or premeditated murder
is not statutorily defined. We were not referred to, and
nor was I
able to find, any authoritative pronouncement in our case law
concerning this concept. By and large it would seem that
the question
of whether a murder was planned or premeditated has been dealt with
by the court on a casuistic basis. The
Concise
Oxford English Dictionary
10 ed, revised, gives the meaning of premeditated as to “think
out or plan beforehand” whilst “to plan”
is given
as meaning “to decide on, arrange in advance, make preparations
for an anticipated event or time”. Clearly
the concept suggests
a deliberate weighing-up of the proposed criminal conduct as opposed
to the commission of the crime on the
spur of the moment or in
unexpected circumstances. There is, however, a broad continuum
between the two poles of a murder committed
in the heat of the moment
and a murder which may have been conceived and planned over months or
even years before its execution.
In my view only an examination of
all the circumstances surrounding any particular murder, including
not least the accused’s
state of mind, will allow one to arrive
at a conclusion as to whether a particular murder is “planned
or premeditated”.
In such an evaluation the period of time
between the accused forming the intent to commit the murder and
carrying out this intention
is obviously of cardinal importance but,
equally, does not at some arbitrary point, provide a ready-made
answer to the question
of whether the murder was “planned or
premeditated”.’
Circumstances
of the offence
[36]
The facts on which the accused was convicted were dealt with
extensively in his
s 112
plea. The accused indicates that he had been
in an intimate relationship with the deceased from 4 November 2006
and they had agreed
that they would marry at the end of 2017. In
early November 2016 he received information of a clandestine
relationship which the
deceased was involved in with a third party.
[37]
The accused indicates that he contacted the deceased on several
occasions to establish the truth of what had been reported
to him but
the deceased avoided contact with him. As a consequence he was of the
view that what he had been told had a ring of
truth to it and knew
that he was losing the deceased. He attempted to get hold of her on
the morning of 29 November 2016. After
several failed attempts to
contact the deceased at work or on her cellphone, and her family, the
accused contacted the tracker
company Netstar and was informed that
the deceased’s vehicle was somewhere in the Bluff. He then
drove to her workplace and
parked not far from the offices waiting
for her.
[38]
When he saw her exiting the door and proceeding down a steel
staircase to her vehicle, he drove his vehicle toward her vehicle
and
called out her name. When the deceased saw him she ran away to the
staircase. Enraged by her conduct, he chased after her with
the
unlicensed firearm and fired several shots in her direction. He
panicked, dropped the firearm and drove to the Chatsworth Police
Station accompanied by his cousin. On his arrival at the police
station he was told to wait until the next shift. Because he was
anxious and shaking he went home to sleep and at about 23h00 the
police arrived and arrested him.
[39]
There is nothing on the facts as pleaded and accepted by the State to
indicate that in the time preceding the shooting, the
accused formed
an intention or plan to kill the deceased. There is nothing to
suggest that he deliberately armed himself with the
firearm and went
to her workplace with the sole intention to kill her. His actions,
although deadly and tragic, cannot change what
appears to be the spur
of the moment act of a man in an emotional rage, into a planned and
premeditated murder.
[40]
There is nothing to suggest that this was not a crime of passion at a
time when the accused was emotionally riled. It does
not detract from
the seriousness of the offence but helps one appreciate the accused’s
behaviour. In
S
v Mvamvu
[11]
Mthiyane JA described an essential characteristic of a crime of
passion ‘as one committed without rational reflection whilst
the perpetrator is influenced by barely controllable emotion’.
In such instances the circumstances of such a murder are considered
substantial and compelling circumstances.
[41]
As was held in
S
v Mathe
[12]
an accused person would be considered to have acted in circumstances
with reduced powers of restraint and self-control.
[42]
Whilst acknowledging the circumstances under which the deceased met
her untimely death, I am of the view that on the facts
of the matter,
substantial and compelling circumstances exist warranting a deviation
from the prescribed minimum sentences. Although
the accused’s
conviction is one which falls within the purview of
Part 1
of
Schedule 2 to the CLAA, on the objective facts alluded to by Mr
Singh
and on the contents of his plea, I am unable to find that the offence
in count one was planned or premeditated. I say this mindful
of the
interests of society. One has to view these against the facts pleaded
and the personal circumstances of the accused.
[43]
Mr
Singh
acknowledged that the accused displayed remorse and
voiced an intention to plead guilty from the time of arrest. I am of
the view
that this remorse was genuine. Although he waited for the
deceased for 23 minutes and the shooting was relatively quick, there
is nothing on the facts pleaded and the evidence presented to
indicate he was armed with the firearm with the sole intention of
killing her. In addition, Mr
Singh
acknowledged the accused
acted with diminished responsibility.
Possession
of the firearm
[44]
At the hearing of the matter I raised with Mr
Singh
the
conviction in respect of this offence. In his
s 112
plea the accused
pleaded guilty to contravening the provisions of
s 3
of the
Firearms
Control Act read
with
s 51(2)
and
Part II
of Schedule 2 to the CLAA.
In essence he admitted to being in possession of a semi-automatic
pistol which had a serial number obliterated
without holding a
licence therefor. When I indicated to him that strictly speaking this
was a contravention of
s 4
of the
Firearms Control Act, he
indicated
that although this issue was debated in his office, the plea was
accepted on the basis of a contravention of
s 3.
He submitted in this
regard that given the case authority the appropriate sentence in this
regard would be no less than seven years
in respect of this
conviction.
[45]
The prescribed minimum sentence in respect of a contravention of
s 3
is 15 years’ imprisonment. Having regard to the decision in
S
v Madikane
[13]
it would appear that the sentences imposed varied but those imposed
are no greater than seven years’ imprisonment, depending
on the
facts of a particular case. It was also pointed out by Mr
Singh
that if one has regard to exhibit “D”, which is the
ballistics report, the barrel of the pistol was cracked and could
not
be tested for safety reasons. It would appear that the firearm posed
a threat even to the life of the accused.
[46]
In his
s 112
plea, the accused admits to being in possession and
control of the firearm without a valid licence. In addition it is
clear that
he admits that the serial number for the firearm was
obliterated. The accused appears to have obtained the firearm in
August for
safety reasons. He thus appears to have been in possession
of the firearm for a period of time and kept same with him for work
purposes. There is nothing to gainsay that.
[47]
Mr
Mkhumbuzi
submitted that in relation to the conviction in
respect of count 2, the State in the exercise of its prerogative,
charged the accused
with a contravention of
s 3
and not with a
contravention of
s 4.
The accused has provided an explanation of how
he acquired the firearm. He has submitted that whatever sentence is
imposed in respect
of count 2 the court ought to consider the
cumulative effect thereof and order the sentences to run concurrently
given the fact
that the firearm was used in the commission of the
offence in count 1.
[48]
Ordinarily where offences occur and they are closely related in time
and place to each other, the court in considering the
cumulative
effect of the sentence, often orders sentences on two counts to run
concurrently.
[49]
Regrettably this is not one of those cases. It is correct that the
firearm was used in the murder of the deceased in count
1. However
the accused through his legal representative indicated that he was in
possession of the firearm for a considerable period
of time prior to
the incident. It is clear that after the incident during which he and
the driver were robbed and assaulted, he
consciously made a decision
to purchase an unlicensed firearm and remain in possession thereof.
This in my mind indicates that
the firearm was purchased for a
different purpose and under those circumstances, although used in the
commission of the offence
in count 1 the sentence imposed in respect
of this count must take these facts into consideration as well. There
is no reason to
order the sentences to run concurrently.
Conclusion
[50]
In coming to an appropriate sentence in respect of both these counts,
the following must be borne in mind, namely:
(a)
Although
the accused in respect of count 1 pleaded guilty to murder read with
s 51
Part I
in Schedule 2 of the CLAA, the State accepted this plea
based on the facts submitted in his
s 112(2)
statement.
(b)
The
deceased and the accused were involved in a relationship for
approximately ten years.
(c)
Even though
her sister Chrisantha Pillay testified that the deceased wanted
nothing to do with the accused and according to her
the relationship
ended at the end of March after the deceased’s birthday, it
would appear that there was communication between
the deceased and
the accused at least until the beginning of November 2016.
(d)
Although
her sister testified that the relationship between the deceased and
the accused was a troubled one and that he was often
demanding,
abusive and disrespectful toward the deceased, there was no evidence
placed on record to indicate that this was an abusive
relationship
and that the deceased was being stalked by the accused. In fact Ms
Pillay confirmed that despite the problems, the
deceased was in the
relationship with the accused for some ten years.
(e)
Two
families have been affected by this tragedy, the family of the
deceased but also the family of the accused, their lives irreversibly
altered for ever.
(f)
No sentence
will ever bring back the deceased. Whilst this may be cold comfort
for the family of the deceased, I am reminded of
what the court
stated in
S
v Rabie
[14]
that ‘[p]unishment should fit the criminal as well as the
crime, be fair to society, and should be blended with a measure
of
mercy according to the circumstances’.
[51]
The sentences would give recognition to the justifiable abhorrence
invoked by the callousness of the offences whilst not destroying
the
accused on the altar of general deterrence.
[52]
In the result, the sentences I impose are the following:
Count 1: Murder read with
s 51(1)
and
Part I
of Schedule 2 of Act 105 of 1997: the accused is
sentenced to 20 years’ imprisonment
Count 2: Possession of a
firearm in contravention of
s 3
of the
Firearms Control Act read
with
s 51(2)
and
Part II
of Schedule 2 of Act 105 of 1997: the accused is
sentenced to 5 years’ imprisonment.
The
accused is thus sentenced to an effective 25 years’
imprisonment.
The
accused is declared unfit to be licensed for a firearm in terms of
the provisions of the
Firearms Control Act.
>__________________
HENRIQUES
J
Case
History
Date
of conviction: 24 April 2018
Date
of argument on sentence: 25 April 2018
Date
of sentence: 7 May 2018
Mr
Singh for the State
Mr
Mkhumbuzi for the defence
[1]
S v Zinn
1969 (2) SA 537 (A).
[2]
S v Malgas
2001 (1) SACR 469 (SCA);
s 51(3)
of the
Criminal Law Amendment Act
105 of 1997
.
[3]
2001 (1) SACR 469 (SCA).
[4]
S v Vilakazi
2009 (1) SACR 552 (SCA).
[5]
S v Matyityi
2011 (1) SACR 40 (SCA).
[6]
S v Kruger
2012
(1) SACR 369
(SCA) para 11.
[7]
S v Scott-Crossley
2008
(1) SACR 223 (SCA).
[8]
S v Mhlakaza & another
1997
(1) SACR 515 (SCA).
[9]
S v Makwanyane & another
1995 (2) SACR 1 (CC).
[10]
S v Raath
2009 (2) SACR 46 (C).
[11]
S v Mvamvu
2005 (1) SACR 54
(SCA) para 13.
[12]
S v Mathe
2014 (2) SACR 298 (KZD),
[13]
S v Madikane
2011 (2) SACR 11 (ECG).
[14]
S v Rabie
1975 (4) SA 855
(A) at 862G-H.