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[2016] ZAKZPHC 51
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Mfeka v S (AR 612/15) [2016] ZAKZPHC 51 (7 June 2016)
IN THE HIGH COURT
OF SOUTH AFRICA
KWAZULU NATAL
DIVISION, PIETERMARITZBURG
Case No: AR
612/15
DATE: 07 JUNE
2016
In
the matter between:
THULISANI
TREVOR
MFEKA
.....................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
Coram
: Seegobin, Poyo Dlwati JJ et Hemraj AJ
Heard
: 27 May 2016
Delivered
: 07 June 2016
ORDER
On
appeal from the Durban High Court, Phoswa AJ sitting as a court of
first instance:
The
appeal against sentence is upheld. The sentence imposed by the court
a quo
is set aside and substituted with the following
sentence:
(a)
On count 1the accused is sentenced to five years imprisonment.
(b)
On count 2 the accused is sentenced to twelve years imprisonment.
(c)
The sentence on count 1 is to run concurrently with the sentence in
count 2. The sentences are ante dated to 4 June 2010.
JUDGMENT
POYO
DLWATI J
[1]
The appellant pleaded guilty before Phoswa AJ to one count of theft
and one count in contravention of section 31(1), read with
sections
1, 103, 120(1) (a) and 121 and Schedule 4 of Act 60 of 2000
[1]
and with section 94 of Act 51 of 1977
[2]
(the Act) and with section 51 and Schedule 2 of Act 105 of 1997
[3]
– unlicensed trading in firearms. He was sentenced to twenty
years imprisonment. This appeal comes before us by way of leave
to
appeal against sentence granted by Balton J.
[2]
The facts upon which the appellant pleaded guilty are briefly as
follows:
(a)
The appellant was employed as an exhibit clerk at the South African
Police Service Station in Inanda since November 2002. His
duties
included the control of the exhibit room where items entered in the
SAP13 register at the police station were kept. These
included
numerous firearms which had been recovered from criminal suspects and
/ or crime scenes.
(b)
During August 2009 and March 2010, the appellant, upon being
approached by some police officers began selling some of the firearms
that were in the exhibit room. Although he initially sold these
firearms to police officers he later also sold them to the members
of
the public. The prices varied between R800 to R2500for each firearm
sold. In total, 98 firearms were sold during this period.
(c)
In his plea explanation, tendered to the court
a
quo
in terms of 112(2) of the Act and
accepted by the state, he stated that he did this because he wanted
to supplement his income
which was R2200 per month after deductions.
Upon arrest by the police on 25 May 2010 he made a full disclosure
and co-operated
with the police. He made a confession before a
magistrate on 26 May 2010 and on 3 June 2010 he pleaded guilty to the
charges.
[3]
At issue in this appeal is whether the learned Acting Judge erred in
taking the two offences as one for purposes of sentence
in view of
the fact that count 1 (the theft) did not attract a minimum sentence
yet count 2 attracted a minimum sentence. The other
issue is whether
the learned Acting Judge misdirected himself in failing to pronounce
on whether substantial and compelling circumstances
existed that
justified the imposition of a less severe sentence than the one
prescribed.
[4]
It is trite that a court of appeal will not readily interfere with
the sentence imposed by the court
a
quo
unless
the sentence is vitiated by misdirection or it is manifestly
inappropriate and induces a sense of shock or is such that a
patent
disparity exists between the sentence that was imposed and the
sentence that the court of appeal would have imposed.
[4]
If there is a misdirection, it must be of such a nature, degree or
seriousness, that it shows, directly or inferentially, that
that
court did not exercise its discretion at all or exercised it
improperly or unreasonably. Such a misdirection is usually and
conveniently termed one that vitiates the court’s decision on
sentence.
[5]
[5]
In sentencing the appellant, the learned Acting Judge did not
indicate whether he found or did not find substantial and compelling
circumstances that justified the imposition of a lesser sentence than
the one prescribed as count 2 attracted a minimum sentence
of 15
years imprisonment and a maximum of twenty five years. All that the
learned Judge said was:
[6]
‘
as
a show of mercy, I have decided to treat both counts as one for the
purpose of sentence and further, with regard to the conduct
of the
accused in this matter in the investigations of the matter, a show of
remorse, his co-operation with the police which has
resulted in some
people being arrested, some firearms, about five being recovered, his
willingness in future to give evidence against
his customers, I’ve
decided not to impose the maximum terms of imprisonment prescribed
with regard to the contravention of
section 31(1) Act 60 of 2000’.
[6]
In my view, the learned Acting Judge misdirected himself when he did
not pronounce whether he found substantial and compelling
circumstances justifying the imposition of a less severe sentence. An
enquiry as to whether such circumstances exist must be conducted
by
the court in order to arrive at a just and balanced sentence. As held
in
S v Mthethwa
2015 (1) SACR 302
(GP) at para 15, it is one thing to recite the
personal circumstances of an accused but it is another to fuse those
circumstances
in the consideration of sentence. As a result one is
not able to conclude that the learned Acting Judge weighed the
personal circumstances
against the seriousness of the offence and the
interests of society. It seems to me that the learned Acting Judge
placed more emphasis
on the seriousness of the offence and the
interests of society and failed to balance those with the appellant’s
personal
circumstance.
[7]
Furthermore, he also misdirected himself when he took the two
offences as one for the purpose of sentence. As held in
S
v Haymen
1988 (1) SA 831
(NC), although
a magistrate or Judge can, for the purpose of sentence, take charges
together, he is not authorised to impose a
sentence which is
competent in respect of one offence and incompetent in respect of
another offence when taking the two together
as one offence for the
purposes of sentencing. In the present matter, the sentence given to
the appellant has the effect of imposing
a sentence of 15 or 20 years
imprisonment for theft when the offence does not attract a minimum
sentence. Our interference is therefore
warranted based on these two
factors and we are at large to impose a fresh sentence.
[8]
The personal circumstances of the appellant were that:
(a)
He was 30 years old and had completed a diploma in business
management which he obtained in 2003;
(b)
He was employed as an administrative clerk by the Inanda SAPS and was
earning a salary of R2200 per month which he used to support
himself
and his family;
(c)
He was unmarried but had a girlfriend with whom he had four children.
He also had a fifth child from another woman;
(d)
He was a first offender;
(e)
He was remorseful for his actions, hence he pleaded guilty;
(f)
He co-operated with the police on arrest and still intends assisting
in any future proceedings relating to the firearms.
[9]
It cannot be underestimated that the offences with which the
appellant was convicted are very serious. He was in a position
of
trust as he was in charge of the exhibit room which is very
important, not only in the work of the police, but also in the
administration of justice. These firearms were illegal and the police
were doing their best to ensure that they rid our communities
of
them. The appellant, however, chose to put them back on the streets,
where they may have been used to probably commit even more
serious
crimes than those they were initially seized for. He must have known
what would happen if caught but he still continued
with his dubious
deeds and I shudder to think what could have happened if he was not
caught. However, I agree with what Leach JA
said with regard to
sentence in
S v
Muller
:
[7]
“
When dealing
with multiple offences, a sentencing court must have regard to the
totality of the offender's criminal conduct and
moral blameworthiness
in determining what effective sentence should be imposed, in
order to ensure that the aggregate penalty
is not too severe. In
doing so, while punishment and deterrence indeed come to the fore
when imposing sentences for armed robbery,
it must be remembered, as
Holmes JA pointed out in his inimitable style, that mercy, and not a
sledgehammer, is the concomitant
of justice. And while a
judicial officer must not hesitate to be firm when necessary, 'he
should approach his task with
a humane and compassionate
understanding of human frailties and the pressures of society which
contribute to criminality'. In addition,
although it is in the
interest of the general public that a sentence for armed robbery
should act as a deterrent to others, an
offender should not be
sacrificed on the altar of deterrence. As Nicholas JA observed in
S
v Skenjana
:
'A
sentence of 20 years' imprisonment is undoubtedly very severe . . . .
My personal view is that the public interest is not necessarily
best
served by the imposition of very long sentences of imprisonment. So
far as deterrence is concerned, there is no reason to
believe that
the deterrent effect of a prison sentence is always
proportionate to its length. Indeed, it would seem to be
likely that
in this field there operates a law of diminishing returns: a point is
reached after which additions to the length of
a sentence produce
progressively smaller increases in deterrent effect, so that, for
example, the marginal deterrent value of a
sentence of 20 years over
one of say 15 years may not be significant.
.
. .
Nor
is it in the public interest that potentially valuable human material
should be seriously damaged by long incarceration. As
I observed in
S
v Khumalo and Another
[1984] ZASCA 30
;
1984 (3) SA 327
(A) at 331, it is the
experience of prison administrators that unduly prolonged
imprisonment brings about the complete mental and
physical
deterioration of the prisoner. Wrongdoers must not be
visited with punishments to the point of being broken.
(
Per
Holmes JA in
S v Sparks and Another
1972 (3) SA 396
(A) at
410G.)'”
[10]
In my view the personal circumstances of the appellant taken
cumulatively constitute substantial and compelling circumstances
that
justify the imposition of a less severe sentence than the one
prescribed. Furthermore the plea of guilty coupled with the
youthfulness of the appellant indicate that the appellant is a good
candidate for rehabilitation. Justice will still be served
if a
sentence of less than 20 years imprisonment is imposed. That sentence
will still serve as a deterrent to the appellant and
other would be
offenders.
[11]
Accordingly, I propose the following order:
‘
The
appeal against sentence is upheld. The sentence imposed by the court
a quo
is
set aside and substituted with the following sentence:
(a)
On count 1 the accused is sentenced to five years imprisonment.
(b)
On count 2 the accused is sentenced to twelve years imprisonment.
(c)
The sentence on count 1 is to run concurrently with the sentence in
count 2. The sentences are ante dated to 4 June 2010.
POYO
DLWATI J
I
agree
SEEGOBIN
J
HEMRAJ
AJ
Date
of Hearing : 27 May 2016
Date
of Judgment : 02 June 2016
Counsel
for Appellant : Mr A Matlamela
Instructed
by : Shireen Amod and Company
Counsel
for Respondent : Ms K Essack
Instructed
by : The Director of Public Prosecutions
[1]
Firearms
Control Act 60 of 2000
.
[2]
Criminal
Procedure Act 51 of 1977
.
[3]
Criminal
Law Amendment Act 105 of 1997
also known as the minimum sentencing
legislation.
[4]
S
v Kruger
2012 (1) SACR 369
(SCA) para 8.
[5]
S
v Pillay
1977(4) SA 531 (A) at 535E - F
[6]
Page 37 of the record from line 12 to line 19
[7]
2012
(2) SACR 545
(SCA) para 9 at 549-550.