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[2017] ZAGPPHC 170
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Mphuthi v S (A648/2015) [2017] ZAGPPHC 170 (17 February 2017)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
17/2/2017
CASE NO.: A648/2015
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
REVISED
SAMUEL MPHUTHI
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
THOBANE AJ
,
[1] The appellant was arraigned in the
Regional Court sitting at Sebokeng on two counts;
Count 1. Unlawful
possession of 3 firearms,
Count 2. Unlawful
possession of ammunition.
[2] The appellant, who was legally
represented throughout the trial proceedings, pleaded not guilty to
both counts but was nevertheless
found guilty as charged and
sentenced as follows,
Count 1. 10 years
imprisonment,
Count 2. 5 years
imprisonment.
He was further declared
unfit to possess a firearm.
[3] Leave to appeal against the
sentenced was granted by the court a
quo
.
The events giving rise to the
appellant's conviction are briefly as follows: The police were
responding to a business robbery. They
were given names of possible
perpetrators by their informer. Using the information given to them,
they proceeded to the appellant's
place of residence. They forcibly
opened the door and entered. They were not in possession of a search
warrant but were granted
permission by the appellant to search the
premises. It was during this search that three firearms were
recovered, namely, a Victor
rifle, a semi-automatic 9mm Baretta as
well as a semi-automatic 9mm Norinco pistols. These firearms had the
following rounds of
ammunition respectively, 10, 8 and 6. The
appellant did not have a license to possess any of these firearms nor
the ammunition.
The Victor rifle was found tucked under a bed whereas
the Norinco and the Baretta pistols were found in a purple bag.
[4] The appellant is of the view that
the sentence imposed induces a sense of shock and on that basis
argues that this court is
at liberty to intervene. It is particularly
contended that the sentencing court overemphasized the seriousness of
the offense as
well as the interest of society at the expense and to
the exclusion of the appellant's personal circumstances.
[5] The following personal
circumstances of the appellant were presented to the sentencing
court;
-that he is 32 years of age;
- has attended formal schooling up to
grade 11;
-he is single; he has three minor
children aged 9, 6 and 3 years, whom he was maintaining and that
being this young, they need parental
guidance;
-his 6. years old child suffers from
epilepsy;
- his partner is unemployed and has a
"heart problem";
- that he is a first offender and that
there is no evidence to suggest he is incapable of rehabilitation;
-that he suffers from arthritis;
-he did not have formal source of
income but relied on informally lending people money as well as
selling goods;
-that he co-operated with the police;
-he has been in custody for a period
of 16 months before sentence was imposed.
[6] The respondent's counsel submitted
that the court a
quo
delivered a balanced sentence having
considered the personal circumstances of the appellant, the nature
and seriousness of the offences,
and the interests of society.
Counsel contends that the aggravating factors far outweigh the
mitigating factors and that as a result,
the manner in which the
magistrate approached sentencing as well as the sentences imposed
cannot be faulted when one considers
inter
alia
, the fact that the
offences are prevalent and also the fact that the appellant's name
had been mentioned or linked with two robberies
in the area.
[7] The basic approach in
every appeal against sentence was set out in
S v Rabie
1975 (4) SA 855
(A)
at
857D-F
to be the following:
"The court hearing
the appeal -
"(a) should be
guided by the principle that punishment is 'pre-eminently a matter
for the discretion of the trial court', and
(b) should be careful not
to erode such discretion: hence the further principle that the
sentence should only be altered if the
discretion has not been
judicially and properly' exercised.
"The test under (b)
is whether the sentence is vitiated by any irregularity or
misdirection or is disturbingly inappropriate",
(see also
S
v Giannoulis
1975 (4) SA 869
(A)
,
S v Barnard
2004
(1) SACR 191
(SCA)
at
194C-D
,
S v Mayisela
2013
(2) SACR 129
(GNP) at [13]
.)
[8] The court in
S
v Malgas
2001 (1) SACR 469
(SCA)
at 478E-H said the appeal court can only interfere with
the sentence imposed by the trial court where it is vitiated by a
material
misdirection or where the disparity between the sentence of
the trial court and the sentence that the appellate court would have
imposed had it been the trial court, is so marked that it be
described as 'shocking', 'startling' or 'disturbingly' inappropriate
(see also
Madiba v S
[2015]
JOL 33686
(SCA)
).
[9]. Having studied the
record, it was noted that the court a quo firstly failed to forewarn
the appellant about the applicability
of the minimum sentences
legislative framework to the charges and secondly that the appellant
was charged with one count of unlawful
possession of firearms despite
the fact that three firearms were found in his possession. The record
reflects that at the commencement
of proceedings just before the
charges were put to the appellant, the magistrate, alive to the fact
that the charge sheet was silent
on the invocation of the provisions
of
section 51(2)
of the
Criminal Law Amendment Act 105 of 1997
, by
the State, said the following;
"
Court
:
Before the plea I must indicate to them that the state has not
invoked the provisions of
Section 51(2)
of Act 38 of 2007 (sic),
which deals with prescribed sentences. Be that as it may I must warn
them that both counts are punishable
with 15 years' imprisonment
unless they can show the existence of substantial and compelling
circumstances, but if at the time
of the commission of the offense
they were less than 18 years of age then they do not qualify for 15
years' imprisonment. I must
further indicate that although the state
has not invoked that provision, the state itself, that is Firearms
Control Act, also imposes
15 years' imprisonment for these
offenses......" (Record page 26 line 11 to 20).
[10] From the above it
seems clear that there was a failure on the part of the State,
bearing in mind that the state is dominis
litis, to forewarn the
appellant. It is trite that such a failure vitiates the proceedings.
See
S v Makatu
2006
(2)
SACR 582
(SCA)
where
the following is stated:-
"[7] As a general
rule, where the State charges an accused with an offence governed bys
51(1) of the Act, such as premeditated
murder, it should state this
in the indictment. This rule is clearly neither absolute nor
inflexible. However, an accused faced
with life imprisonment - the
most serious sentence that can be imposed - must from the outset know
what the implications and consequences
of the charge are. Such
knowledge inevitably dictates decisions made by an accused, such as
whether to conduct his or her own defence;
whether to apply for legal
aid; whether to testify; what witnesses to call; and any other factor
that may affect his or her right
to a fair trial. If during the
course of a trial the State wishes to amend the indictment it may
apply to do so, subject to the
usual rules in relation to prejudice."
See also:
S
v Legoa
2003 (1) SACR13 (SCA),
Kgantsi
v S
(732111)
[2012] ZASCA 76
(2515112)
PN v S (828/13) [2014] ZASCA (2713/14)
[11] In
S v
Machongo
2014 JDR 2472 (SCA
)
the
following is stated:-
'[10] It is settled
law that failure to forewarn or to mention the applicability of the
minimum sentence is a fatal irregularity
resulting in an unfair trial
in respect of sentence. The question is, having come to the
conclusion that a misdirection has been
committed, what next should
the appeal court do? The answer is and has always been that the
appeal court must consider the sentence
afresh. What then does
considering the sentence afresh mean?”.
[12] Furthermore, forewarning an
accused person about the applicability of minimum sentences is
grounded in the Constitution of
this country. That much was said in
S
v Kolea
2013 (1) SACR 409
(SCA),
where the Supreme
Court of Appeal located such forewarning in the Constitution when the
following was said;
''The accused's right
to be informed of the charge he is facing, and which must contain
sufficient detail to enable him or her to
answer it, is underpinned
by s35(3)(a) of the Constitution, which provides that every accused
person has a right to a fair trial.
The objective is not only to
avoid a trial by ambush, but also to enable the accused to prepare
adequately for trial and to decide,
inter a/ia, whether or not to
engage legal representation, how to plead to the charge and which
witnesses to call. It follows that,
if the State intends to rely on
the minimum-sentencing regime created in the Act, this should be
brought to the attention of the
accused at the outset of the
trial...".
[13] Possession of a semi-automatic
firearm, such as the ones the appellant possessed, is an offense
contemplated in section 51(2)
(a) of Act 105 of 1997, therefore it
attracts the minimum sentence of 15 years. In
Swartz v S
[2014] ZAWCHC 113
(4 August 2014)
Rogers J discusses in detail
jurisprudence pertaining to minimum sentences as it applies to
possession of semi-automatic firearms.
He said the following;
“
[39]....Even for a first
offender, s 51(2)(a) requires a sentence of 15 years' imprisonment
for unlawful possession of a semi-automatic
firearm. The inclusion of
this offence in Part II of Schedule 2 reflects the lawmaker's
determination to tackle, by way of severe
sentences, a particular
scourge in our society (gun crime). The magistrate treated the
appellant as a first offender for purposes
of s 51(2)(a), presumably
in the absence of any evidence that his 2001 conviction involved
possession of a semi-automatic weapon.
Nevertheless, the appellant
was not, when it came to the assessment of substantial and compelling
circumstances, entitled to be
treated as a man without relevant prior
convictions.
…
…
[41] Unlicensed
possession of semi-automatic firearms is a very serious matter.
Violent crime involving the use of such weapons
has not diminished
since Thembalethu was decided. I have no doubt that the lawmaker, in
requiring a minimum sentence of 15 years'
imprisonment to be imposed
in the absence of substantial and compelling circumstances, had in
mind that generally an unlicensed
weapon of that kind is possessed
for use (whether by the possessor himself or by one to whom he passes
the weapon) in other serious
crimes such as murder, robbery with
aggravating circumstances, hijacking and the like. Very often the
perpetrators of violent crime
are not apprehended.
[42] Crimes such as
rape and robbery with aggravating circumstances cover a wide range of
criminal conduct. In such cases, the criminal
conduct itself (i.e.
quite apart from the personal circumstances of the accused) can be
regarded as lying on a continuum from the
less serious to the truly
heinous. It is more difficult to view unlawful possession of an
automatic or semi-automatic firearm in
this way. The lawmaker has
said that, in the absence of substantial and compelling
circumstances, a first offender should be sentenced
to 15 years'
imprisonment for unlawfully possessing a semi-automatic firearm. If
the accused person is also convicted of a crime
relating to the use
of the firearm (eg murder), he would be separately sentenced for that
crime. In the absence of special circumstances
explaining how the
unlawful possession came about or in the absence of compelling
personal circumstances relating to the accused,
how can the unlawful
possession of a semi-automatic firearm per se be regarded as not
justifying the prescribed 15-year sentence
except on the premise that
the lawmaker was wrong to lay down 15 years as the minimum sentence?
That is not a premise on which
a court is entitled to act.”
See (
S
v Madikane
2011 (2) SACR 11
(ECG),
S
v Dube
2012 (2) SACR 579
(ECG),
S
v Khoza and Others
2010 (2) SACR 207
(SCA)
and
S v
Maseola
2010(2) SACR 311 (SCA).
)
In
casu
the appellant was charged with unlawful possession of
firearms "as per annexure". In the annexure would have been
listed
all three firearms. The charge sheet however comprises one
count of possession of three firearms.
[14] For purposes of this
appeal I accepts that the sentencing court was hampered by the
failure to forewarn the appellant. This
meant that the provisions of
section 51(2) would not find application. Further, that the failure
to charge the appellant with three
counts of possession of the three
firearms, meant that the sentencing court could not properly deal
with, inter alia, issues of
the cumulative nature of the sentences as
well as proportionality. This is a second issue that is of concern to
this court. This
court however accepts that it cannot take into
account that which was not placed and argued before the court a quo
and not part
of the record of the sentencing court. This court can
therefore do no better than to highlight issues, arising from the
sentencing
court, that are of concern to it.
[15] Mr. Matlapeng on
behalf of the appellant argued that although a sentence of 15 years
imprisonment is competent for possession
of an unlicensed firearm and
ammunition, it is rarely imposed and is reserved for serious
offences. We debated with him whether
the facts of this case do not
make this matter a "serious offense", in light of the fact
that instead of imposing the
sentence of 15 years imprisonment in
count one, the magistrate imposed only 10 years and in respect of
count two, that of possession
of ammunition, 5 years imprisonment was
imposed. He was constrained to concede that viewed from that angle,
the contention that
the effective sentence of 15 years is shockingly
inappropriate, would not gain much traction as to be persuasive.
[16] Ms. van der
Westhuizen argued on behalf of the respondent that when one considers
the fact that the appellant was sought in
connection with two
aggravated robberies, and that the firearms discovered could have
been used during the robbery, further argued
that in any event, the
minimum sentence for contraventions of section 3 and
section 90
of
the
Firearms Control Act, No. 60 of 2000
, is 15 years' imprisonment
in each case, therefore that given the gravity of the offences, the
sentences of 10 and 5 years' imprisonment
respectively, do not induce
a sense of shock, and are not disproportionate to the offences.
[17] I can find no
misdirection in the court a
quo
's
approach to sentencing. The record reflects that the magistrate had
regard to
S v Zinn
1969(2)
SA 537 (A)
, and accounted for both mitigating
and aggravating circumstances. He further dealt with the cumulative
effect of the sentences
and arrived at the conclusion, correctly in
my view, that if the court were to impose the minimum prescribed in
the
Firearms Control Act, No. 60 of 2000
, being 15 years per charge,
it would be shockingly inappropriate.
[18] I therefore propose
the following order;
1.The appeal against
sentence is dismissed.
_______________________
T THOBANE
ACTING JUDGE OF THE
HIGH COURT
I agree and it is so
ordered
_______________________
D MOLEFE
JUDGE OF THE HIGH
COURT
APPEARANCES
Heard: 29 January 2017
Delivered: 17 February
2017
Counsel for Appellant:
R.S Matlapeng
Counsel for Defendant:
Adv. J.P. van der Westhuysen