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[2016] ZAFSHC 18
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Dlodlo v S (A209/2015) [2016] ZAFSHC 18 (18 February 2016)
FREE
STATE
HIGH
COURT, BLOEMFONTEIN
REPUBLIC
OF
SOUTH AFRICA
Appeal
No.: A209/2015
In
the appeal between:-
MANDLA
DLODLO
Appellant
and
THE
STATE
Respondent
CORAM:
VAN
DER MERWE, J
et
REINDERS,J
HEARD
ON:
15
FEBRUARY 2016
JUDGMENT:
REINDERS,
J
DELIVERED
ON:
18
FEBRUARY 2016
[1]
The appellant was convicted on 24 November 2014 in the Regional Court
for the Free State Division (held at Welkom) of contraventions
of
Sections 3
and
90
of the
Firearms Control Act 60 of 2000
, in that he
was in unlawful possession of a firearm (Count 3: 9mm Parabellum
Vector Semi-Auto) and ammunition (Count 4: five 9mm
Parabellum
Cartridges). Subsequently appellant was sentenced on 1 December 2014
to respectively nine and three years’ imprisonment
for unlawful
possession of a firearm and ammunition. It was ordered that two years
of the latter sentence would run concurrently
with the sentence of
nine years, totalling an effective sentence of ten years
imprisonment. Appellant was granted leave to
appeal against his
sentence by the court
a
quo
.
[2]
The attack on the sentences imposed may be summarized as follows:
2.1
The effective term of ten years imprisonment is strikingly
inappropriate and out of proportion to the totality of accepted
facts
in mitigation and it disregards the time period of 29 months that
appellant had spent in custody awaiting trail;
2.2
The court
a
quo
had erred by not imposing a shorter term of imprisonment due to the
absence of previous convictions, the absence of planning, appellant’s
age and personal circumstances and “other” mitigating
factors;
2.3
The court
a
quo
over emphasized the seriousness of the offence, the interest of
society and the prevalence of the offence;
2.4
The court
a
quo
erred in not sufficiently taking into account that the appellant was
a first offender caring for his five children residing with
their
grandmother.
[3]
The sentence imposed was supported by Mr Hoffman on behalf of the
state who submitted that the court
a
quo
correctly balanced the triad of factors and even showed mercy by
deviating from the prescribed minimum sentence. According to him
the
trial court considered the following mitigating factors: The
appellant was 28 years of age and had a grade 12 qualification.
He was unmarried and had five children. He was unemployed but did
casual jobs prior to his arrest. Of specific importance is that
he
was a first offender and incarcerated for two years and five months
awaiting finalisation of the case.
[4]
He pointed out the aggravating circumstances taken into account by
the court
a
quo
,
viz
a
lack of remorse; the availability of illegal firearms; that the
recovery of the firearms were not due to the assistance of the
appellant but to the police investigating a charge of robbery; that
the public need to feel safe and that a minimum sentence is
prescribed for the unlawful possession of a semi-automatic firearm.
[5]
The Supreme Court of Appeal ruled in
S
v Thembalethu
[2008]
3 All SA 417
(SCA) that conviction on the unlawful possession of a
semi-automatic firearm invoked the prescribed minimum sentences as
envisaged
in
Section 51
(2) of the
Criminal Law Amendment Act 105 of
1997
read with
Part 11
of Schedule 2. From the record it appears that
Mr Du Toit on behalf of appellant pressed hard upon the learned
regional magistrate
to deviate from the prescribed minimum sentence
of fifteen years, referring her to
S
v Malgas
2001 (2) SA 1222
(SCA) at 1235F – 1236C. Although no specific
mention is made by the trial court in handing down sentencing that
substantial
and compelling circumstances were found by her to exist
and thus warranted a deviation from the prescribed minimum of fifteen
years
imprisonment, it appears from the lesser sentence of nine years
imposed that such circumstances were indeed found by her.
[6]
When it comes to interfering with the sentence imposed by the Court
a
quo
, it is trite law that the jurisdiction of the Court of Appeal
is not discretionary and in fact very limited, as was stated in
S
v Matlala
2003 (1) SACR 80
SCA at 83e-f. The discretion
in imposing a sentence lies with the trial court. In determining if a
sentence is unreasonable,
the court of appeal asks itself which
sentence it would have imposed as original sentencing court. If the
difference between its
sentence and that actually imposed is so great
that the inference can be drawn that the trial court acted
unreasonably, the sentence
will be replaced with a lighter one.
See:
S
v Wilken
1971 (3) SA 488
(A).
[7]
Should it be found that there is a striking disparity in the sentence
imposed by the trial court and that which the court of
appeal would
have imposed, the latter has the power, and duty, to interfere with
the sentence.
See:
S
v Giannoulis
1975 (4) SA 867
(A).
The
essential question to be determined remains whether the trial court
could reasonably have imposed the sentence it did.
See:
S
v Pieters
1987 (3) SA 717
(A) at 734C-H.
[9]
Mr van der Merwe on behalf of appellant, even though not referring us
to any case law in respect of appropriate sentences for
conviction of
illegal possession of a semi-automatic firearm and ammunition,
indicated that in his experience, much more lenient
custodial
sentences are the practise in all divisions.
[10]
In
S
v Madikane
2011 (2) SACR 11
(ECG) Plasket J did a thorough search on cases on
sentence for the unlawful possession of semi-automatic pistols and
concluded
that apart from
Thembalethu
supra
he
could find no reported decisions in which an accused was sentenced to
more than three years’ imprisonment. Although dismissing
the
appeal, he found the sentence imposed by the court
a
quo
of
five years (unlawful possession of semi-automatic weapon) and three
years (unlawful possession of ammunition) running concurrently,
to be
just.
[11]
On counts of murder and unlawful possession of a firearm and
ammunition Spilg J recently took the convictions for unlawful
possession of a semi-automatic firearm and ammunition together for
sentencing purposes and imposed a sentence of six years imprisonment,
half of which were suspended on conditions.
See:
S
v Motloung
2015 (1) SACR 310
(GP).
[10]
I am bound by the Supreme Court of Appeal’s ruling in
Thembalethu
supra
.
However, in
S
v Malgas
supra
it was stressed by Marais JA that
Section 51
has limited but not
eliminated the court’s discretion in imposing sentence in
respect of offences referred to in Schedule
2. In determining whether
the sentence imposed by the trial court is proportionate to the
offence, I am taking all of the factors
as mentioned above into
consideration.
[11]
Appellant was acquitted on a charge of robbery with aggravating
circumstances and unlawful possession of four 9mm Parabellum
cartridges. The facts on which appellant was convicted on Counts 3
and 4 entailed the following: On 12 June 2012 he was approached
by a
police officer whilst standing about a hundred metres from a Uno
vehicle on the road between Wesselsbron and Odendaalsrus.
A Vector
Z88 9mm semi-automatic pistol was found hidden in his pants. One
cartridge was still in the chamber and four in the magazine
of the
pistol. On these facts it cannot be said that this is a particularly
serious case such as those for instance where a murder
was committed
with the unlawfully possessed semi-automatic firearm.
[12]
In determining the proportionality of the length of a sentence to the
offence, all relevant circumstances which could have
a bearing on the
offender should be considered.
In
S
v Dodo
[2001] ZACC 16
;
2001 (1) SACR 594
(CC) Ackerman J held as follows at paragraph [38]:
“
To
attempt to justify any period of penal incarceration…without
inquiring into the proportionality between the offence and
the period
of imprisonment, is to ignore, if not deny, that which lies at the
very heart of human dignity”.
[11]
I am of the view that the sentence imposed by the court
a
quo
was too harsh and is strikingly inappropriate. Even though the
learned regional magistrate indicated that she had balanced all
of
these factors in arriving at an appropriate sentence, there is a
striking disparity in the effective sentence of ten years
imprisonment imposed and the sentence that I would have imposed. In
my view too much reliance was placed on the prevalence
of the crime,
the interests of society and seriousness of the crime in question in
relation to the personal circumstances of the
appellant as a first
offender, having spent a lengthy time in prison and the circumstances
of the crime as eluded to above. This
culminated in a sentence that
was too harsh in the circumstances, rendering the imposed sentence
injust.
[12]
To my mind a sentence of six years imprisonment on count three and
two years’ imprisonment on count four is one that
would be
proportionate to the crime, the criminal and the legitimate needs of
society, and I would have imposed it as such. I would
have ordered it
to run concurrently. The effective sentence by the trial court is ten
years imprisonment. The disparity between
these sentences is
accordingly of such a nature that the sentence imposed by the trial
court stands to be set aside and replaced
with the sentence of this
court.
[13]
In the result, the appeal is upheld and the sentences on Counts 3 and
4 set aside and replaced with the following order:
1.
Count
3: six years imprisonment.
2.
Count
4: two years imprisonment.
3.
The
sentence imposed on Count 4 shall run concurrently with that in Count
3.
[14]
This sentence should be deemed to have been imposed on 1 December
2014.
_______________
C. REINDERS, J
I
agree.
________________________
C.H.G.
VAN DER MERWE, J
On behalf of
appellant:
Mr P van der Merwe
Instructed
by:
Bloemfontein
Justice Centre
Legal
Aid SA
BLOEMFONTEIN
On behalf of
respondent:
Adv R Hoffman
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN