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[2017] ZAGPPHC 16
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S v Mphuthi (CC78/2014) [2017] ZAGPPHC 16 (24 January 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(CIRCUIT
LOCAL DIVISION OF THE EASTERN CIRCUIT DISTRICT,
MIDDELBURG)
CASE
NO:
CC78/2014
24/1/2017
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:
NO
REVISED.
THE
STATE
AND
THABISO
SHADRACK
MPHUTHI ACCUSED
SENTENCE
THOBANE
AJ,
[1]
The accused, Mr.Mphuthi, was charged with and pleaded guilty to a
count of murder. A statement in terms of 112(2) of the
Criminal
Procedure Act 51 of 1977
was prepared on his behalf and it was read
into the record by his legal representative. He confirmed the
contents thereof as true.
He was accordingly found guilty. It is now
the duty of this court to sentence him.
[2]
The various principles applicable in the determination of a fair,
balanced and appropriate sentence are trite.
"What has to be
considered is the triad consisting of the crime, the offender and the
interest of society".
See
S v Zinn
1969 (2) SA 537
(A)
at 540G.
In the determination of what would be an appropriate
sentence regard must be had
inter alia
to the main purposes of
punishment. These purposes were described in
R v Swanepoel
1945
AD 444
at 455
as deterrent, preventative, reformative and
retributive.
[3]
It is common cause that the provisions of
section 51
of Act 105 of
1997, the Criminal Law Amendment Act, are not applicable. Not much
was disclosed and is therefore known about the
facts of this case.
The little that was disclosed is to be found in the section 112(2)
statement of the accused. I will return
to the facts later.
[4]
The accused, against whom the state did not prove any previous
convictions, did not testify in person in mitigation of sentence.
He
also did not call any witnesses. A Probation Officer's report was
procured and tendered into evidence with the concurrence of
both
parties. What follows are the personal circumstances of the accused
interspersed with a summary of the Probation Officer's
report, but
first the testimony of the deceased's mother.
[5]
Ellen Hlamalani Mtshweni testified in aggravation for the state. She
stated that the deceased was 14 years of age when she was
killed. She
was at the time a learner doing grade 8. The deceased had two
siblings aged 20 and 11 years. Ms Mtshweni was previously
employed as
an educator but left her job due to health reasons. Her husband was
employed at Highveld until the company closed down.
The family of the
accused stays across the street from her house. They are neighbors.
[6]
She testified that the death of their daughter has devastated her
entire family especially because it was at the hand of a person
they
knew very well, a neighbor, the accused. The last time she saw her
daughter before she was killed was when she left and indicated
that
she was going to a friend's place to do homework. She was never to be
seen alive again. What followed was even more tragic.
Her husband
received an SMS demanding payment of the sum of R400 000-00 failing
which their daughter would be killed. The phone
at the time the
message was sent through was being charged and was off, so the SMS
could not be read. The following day she was
phoned by her husband
who related the SMS to her. They then went about retracing the
deceased's steps. The friend whom the deceased
had indicated she was
to visit to do homework, stated that the deceased never arrived at
her place. They were devastated and kept
looking for the deceased. At
some point the accused even came to their home and asked one of her
daughters if the deceased had
returned. This she stated was cruelty
on the part of the accused for he knew very well that he had killed
their daughter. The police
eventually traced a cellphone to the
accused who led them to the body of the deceased. Her entire family
has been traumatized by
the death of her daughter. The family is
receiving counseling once a week.
[7]
The accused is 22 years old. At the time of the murder he was 16
years old turning 17 in about 24 days time. He is the last
born child
in a family of three siblings. He stayed with his parents until the
incident after which his parents moved him to a
different place in an
attempt to shield the family of the deceased from trauma as they were
neighbors. He was brought up by both
his parents who tried to instill
Christian values in his upbringing. He attended formal schooling and
passed grade 8. He attended
grade 9 but failed it and had to repeat.
He eventually dropped out of school.
[8]
He has no dependents and is unemployed. The Probation Officer reports
that the accused spends his free time with friends who
are abusing
substances. She records, without expanding or substantiating, that
drugs contributed to the·offense. She states
further that she
was informed by the accused that when the offense was committed he
was intoxicated.
[9]
While awaiting trial, the accused spent 7 months in custody. Mr.
Pilusa, his counsel, asked the court to take into account the
fact
that the accused pleaded guilty and therefore did not waste the
court's time. He submitted further that the accused is remorseful
of
his conduct. He had wanted to speak with the family of the deceased
to ask for forgiveness however the bail conditions made
it impossible
for him to do so. His family contributed R10 000-00 towards the
funeral service of the deceased which must count
in his favour, it
was submitted.
[10]
The Probation Officer is further of the view that the environment in
which the accused lived contributed to the commission
of the offense
in that the township is characterized by substance abuse and has a
high crime rate. There is also high unemployment
in the area. The
basic needs of the offender, were well taken care of by his parents.
It is further reported that the offender
prays about the incident and
has asked for forgiveness. He claims that he had a romantic
relationship with the deceased and that
on the day of the incident
things happened so fast. He wishes he could turn back the clock and
act differently.
[11]
The Probation Officer discusses the various sentences at this court's
disposal. She states that crimes such as the one the
accused has been
convicted of should not be tolerated by society and that relevant
punishment should follow. She is of the view,
that the accused has
shown remorse about the offense. She is further of the view, in
discussing the various sentencing options,
that the most suitable
sentence is one in terms of
section 276(
1
)(b) of the
Criminal
Procedure Act, that
of direct imprisonment. Sentences in terms of
section 276(1)(h)
and
276
(1)(i) are characterized by her as
unsuitable and lenient in the circumstances of this case.
[12]
Mr. Pilusa submits that an appropriate sentence would be one in terms
of
section 276(1)(i)
or that the accused be sentenced to 6 years
imprisonment, in that he has pleaded guilty and even took the police
to where the body
of the deceased was dumped, has shown remorse, has
been affected by the incident and had to drop out of school. It was
further
submitted that the accused is remorseful.
[13]
For the State Mr. Van der Merwe submits that the accused was just a
few days shy of his 17th birthday therefore that he was
much closer
to being 17. He argues that the accused has shown no remorse in that
he had many opportunities to apologize for his
actions but failed.
The first of such opportunities was when he pleaded. Mr. Van der
Merwe further argues that the accused could
have handed himself over
to the police soon after the incident. The failure to do so, it is
argued, is inconsistent with a person
who is remorseful. He had
another opportunity to enter the witness box in mitigation of
sentence and tender an apology. His failure,
it is submitted, is
telling.
[14]
The state is of the view that the defence has failed to place any
facts before court why a sentence in terms of
section 276(1)(i)
would
be a suitable sentence. It was further submitted that given the
impact of the murder on the family, the fact that the crime
is
prevalent in this area and the fact that the accused has shown no
remorse, a sentence of 6 years imprisonment, if imposed, will
send a
wrong message. The state argues that ordinarily a sentence of 15
years imprisonment would be imposed for crimes of this
nature and
that the court should use that as a benchmark and impose a
sentence of 12 years imprisonment.
[15]
Below, is my analysis of the mitigating factors as well as argument
advanced in aggravation of sentence. This exercise entails
a
reflection on the approach in
S
v Zinn.
A. THE CRIME
15.1
I now return to the facts of this case. As stated
above the facts of this case although accepted by the state are in my
view cryptic.
All that the accused stated in his
section 112(2)
statement is that he had an argument with the deceased, fought with
her, overpowered her then strangled her. On these facts the
court is
expected to rely in imposing an appropriate sentence. I am afraid
these facts are inadequate. The accused does not state
what the
argument he had with the deceased was all about. It is also not
stated what is meant by the statement that the accused
and the
deceased "fought". The court is not taken into the
accused's confidence how the strangulation took place and
whether any
instrument was used. What the court can discern from the tendered
evidence, cryptic as it is, is that when the body
of the deceased was
recovered it had started to decompose. The area where the body
appeared to have been recovered, according to
the photo album, is
consistent with an attempt to hide the body, yet nothing is said by
the accused.
15.2
Murder is a very serious crime. The life of the
deceased who was at the time only 14 years old was taken senselessly.
The deceased
must have died a horrific death. In the absence of
factors which seriously mitigate against the imposition of maximum
sentence
possible, the court must oblige and impose such a sentence.
B. THE OFFENDER
15.1
The accused comes from a loving family and was
brought up within a very stable family environment. He appears to
have gone off the
rails and was prone to using substances. The court
accepts that the accused is very young. There was no submission
before me that
age played a role in the commission of the offense. It
was simply said that he is a youthful offender. Susceptibility to
influence,
pliability and immaturity were not advanced as factors
that should in the circumstances of this case be considered as
factors that
should temper the court's approach to sentencing.
However case law dictate that youthful offenders deserve to be given
a second
c hance a nd a re t herefore given spe cial consideration.
In the case of
S v Mabuza
&
Others
2009 (2) SACR 435
(SCA)
at
paragraph 23, the learned Cachalia JA stated that;
"...So
while youthfulness is, in the case of juveniles who
have attained the age of 18, no longer per se
a
substantial and compelling factor justifying
a
departure from the prescribed sentence, it
often will be, particularly when other factors are present. A court
cannot therefore,
lawfully discharge its sentencing function by
disregarding the youthfulness of an offender in deciding on an
appropriate sentence,
especially when imposing
a
sentence of life imprisonment, for in doing so
it would deny the youthful offender the human dignity to be
considered capable of
redemption."
15.2
In
S v Matyityi
2011
(1) SACR 40
(SCA)
at paragraph 14 the
learned Ponnan JA stated in respect to 'relative youthfulness'
"It is trite that
a
teenager is prima
facie to be regarded as immature and that the youthfulness of an
offender will invariably be
a
mitigating
factor, unless it appears that the viciousness of his deeds rule out
immaturity...the offender's immaturity, lack of
experience,
indiscretion and susceptibility to being influenced by others reduce
his blameworthiness. Thus whilst someone under
the age of 18 years is
to be regarded as naturally immature
the
same does not hold true for an adult".
15.3
In the case of the
Centre
for Child Law v Minister of Justice and Constitutional Development
and others
2009
(2)
SACR 477
(CC)
the learned Cameron J
recognised that youthful offenders may be in more need of protection
and that their crimes may stem from immature
judgment, however at
paragraph [29] he stated;
"...the
children's rights provision itself envisages that child offenders may
have to be detained. The constitutional injunction
that "(a)
child's best interests are of paramount importance in every matter
concerning the child" does not preclude
sending child offenders
to jail".
15.4
The accused's youthfulness is a factor that
weighs heavily against imposition of a long term of imprisonment.
Other factors that
count in favour of the accused are that he spent 7
months in custody awaiting trial and that he is first offender.
15.5
I am however not persuaded that the accused is
remorseful of his conduct. His plea of guilty is not on its own a
pointer to remorse.
More is expected of a remorseful individual.
Ponnan JA, in
S v Matyityi
2011 (1) SACR 40
(SCA),
para 13, had the following to say
about remorse;
"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".
From the above it is
clear that the accused has failed to open up to the court, as the
state correctly pointed out. This court has
not been told by the
accused what motivated him to commit the murder and he did not
disclose to this court whether he has a true
appreciation of the
consequences of his actions, a hurdle he must clear if he wants to
not only express but also demonstrate true
remorse.
15.6
The Probation Officer points out in her report
that the use of substances by the accused contributed to the offense.
She states
that the accused started using substances in 2010. The
accused in his
section 112(2)
statement stated that he had smoked
dagga on the day of the incident. In the address in mitigation the
use substances was not accentuated
as having played a role on the
day.
C. INTEREST OF SOCIETY
15.1
Murder is one of the most prevalent crimes in our
country. Society expects this court to protect it from people who
roam the streets
at night ready to pounce at defenseless women. It is
for this reason that the sentences that courts impose must have an
element
that speaks to the plight of society.
R
v Karg
1961 (1) SA 231
(A) at 236G-H,
Schreiner
JA had the following to say in a passage appearing at 2368:
"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"
See also :
S v
Flanagan 1995(1) SACR13(A) at 17 d-e.
15.2
Vivier JA writing for the unanimous Appellate
Court said the following in
S v Di Blasi
1996(1) SACR 1 (A) at 10 f-g :
"............................................................
The requirements
of society demand that
a
premeditated, callous murder such as the present should not be
punished too leniently lest the administration of justice be
brought
into disrepute. The punishment should not only
reflect the shock and indignation of interested persons and of
the community at large and to serve as
a
just retribution
for the crime but should also deter others from similar conduct."
[16]
I must, in considering the question of whether the punishment meted
out to the accused is fair and just, approach the issue
at hand in
these sentencing proceedings in a spirit of calmness, guided by what
Corbbet JA, as he then was, said in in
S v Rabie
1975 (4) SA
855
(A) at 866 A C;
“
A judicial
officer should not approach punishment in a spirit of anger because
being human that will make it difficult for him to
achieve that
delicate balance between the crime, the criminal and the interests of
society which his task and the objects of punishment
demand of him.
Nor should he strive after severity nor on the other hand surrender
to misplaced pity. While not flinching from
firmness, where firmness
is called for, he should approach his task with a human and
compassionate understanding of human frailties
and pressure of
society which contribute to criminality. It is in the context of this
attitude of mind that I see mercy as an element
in the determination
of an appropriate punishment in the light of all the circumstances of
the particular case."
[17]
Mr. Pilusa argued that the accused can still be rehabilitated. While
agreeing with this submission I remain of the view that
retribution
and deterrence, should not recede to the background. Rehabilitation
can still be achieved even where direct imprisonment
is imposed. In
S
v Mhlakaza and Another
1997 (1) SACR 515
(SCA) at 519d-e;
the
following is said;
"Given the
current levels of violence and serious crimes in this country, it
seems proper that, in sentencing especially such
crimes, the emphasis
should be on retribution and deterrence (cf Windlesham' Life
Sentences: The Paradox of Indeterminacy' [1989]
Crim LR at 244, 251).
Retribution may even be decisive
(S
v Nkwanyana and Others
[1990] ZASCA
95
;
1990 (4) SA 735
(A) at 749C-D)."
[18]
It is my judgment that the elements of retribution and deterrence
must come to the fore in order to bring it home to the accused
that
serious crime is not treated leniently by our courts but rather
harshly, so that those who may be inclined to commit serious
crimes
know what fate would befall them when the law catches up with them. I
am however not suggesting that the accused is being
sacrificed at the
altar of deterrence. See in this regard:
S v Sobanda
1992 (2)
SACR 613
(AD).
Nor is it to say that individualisation has no
role to play when it comes to sentencing of a particular type of
crime. It is rather
more to re-affirm the trite legal principle that
sentences that courts impose must also reflect the gravity of the
offence committed,
though tempered with a measure of mercy according
to the circumstances. A sentence of direct imprisonment is in my view
unavoidable.
[19]
In the result after weighing all the relevant and applicable factors,
the accused is sentenced as follows;
1.
The accused is sentenced to 12 (twelve) years
imprisonment.
____________________
SA
THOBANE
ACTING
JUDGE OF THE HIGH COURT
HEARD :
23/01/2017
SENTENCE :
24/01/2017
ON
BEHALF OF THE STATE :
ADV. Van Der MERWE
ON
BEHALF OF THE ACCUSED :
MR. PILUSA