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[2016] ZAGPPHC 554
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Skhosana and Others v S (A270/2015) [2016] ZAGPPHC 554 (25 January 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: A270/2015
In
the matter between:
JAMES
KLAAS
SKHOSANA
.....................................................................................
1stAPPLELANT
COLIN
MASILELA
NGWENYA
..............................................................................
2ND
APPELANT
SAKI
DAVID
MTSWENI
...........................................................................................
3RD
APPELANT
JAMES
KLAAS
SKHOSANA
.......................................................................................
4
th
APPELANT
AND
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT
KUBUSHI,
J
[1]
The appeal before us is on sentence
only. There are four appellants involved and they are each,
respectively, appealing the sentences
imposed against them. The
appellants were convicted in the High Court of South Africa, Gauteng
Division Pretoria, on various counts
of murder, robbery with
aggravating circumstances, illegal possession of firearms and
ammunition and attempted murder.
[2]
The factual matrix is that the four
appellants accosted the deceased and his co-workers in a shop owned
by the deceased with the
intention to rob them of money and cellular
phones. The perpetrators were armed with firearms. During the fracas
that ensued in
the shop the deceased was shot and killed by appellant
1. The appellants made off with a firearm, cellular phones and cash
in the
amount of R12 000. When appellants 1 and 2 were apprehended,
they were each illegally in possession of firearms and ammunition.
Appellant 1 shot and wounded another person in an unrelated incident.
[3]
Appellant 1 was convicted of murder,
robbery with aggravating circumstances, attempted murder, two counts
of illegal possession
of firearms, and two counts of illegal
possession of ammunition. He was as a result of the convictions
sentenced to life imprisonment
for the murder and determinative
sentences of fifteen years imprisonment for the robbery with
aggravating circumstances; ten years
imprisonment for attempted
murder; fifteen years imprisonment for the two counts of illegal
possession of firearms which were taken
together for purposes of
sentence; and five years for the two counts of the illegal possession
of ammunition which were also taken
together for purposes of
sentence. As is trite the determinative sentences were ordered to run
concurrently with the sentence of
life imprisonment imposed for
murder.
[4]
Appellant 2 was convicted of murder,
robbery with aggravating circumstances, two counts of illegal
possession of a firearm, and
two counts of illegal possession of
ammunition. He was sentenced to life imprisonment in respect of the
murder and to determinative
sentences in respect of the other
convictions, namely, fifteen years for robbery with aggravating
circumstances, fifteen years
for the two counts of the illegal
possession of firearms which were taken together for purposes of
sentence, and, five years for
the two counts of illegal possession of
ammunition also taken together for purposes of sentence. Ail the
determinative sentences
were ordered to run concurrently with the
sentence of life imprisonment imposed for murder.
[5]
Appellant 3 was convicted of murder,
robbery with aggravating circumstances, the illegal possession of a
firearm and the illegal
possession of ammunition. He was sentenced as
follows: eighteen years imprisonment for murder; twelve years for
robbery with aggravating
circumstances; the convictions for the
illegal possession of a firearm and the illegal possession of
ammunition were taken together
for purposes of sentence and he was as
a result sentenced to ten years imprisonment. The sentences for
robbery with aggravating
circumstances, the illegal possession of a
firearm and ammunition were ordered to run concurrently with the
sentence of eighteen
years imprisonment imposed for murder.
[6]
Appellant 4, like appellant3, was
convicted of murder, robbery with aggravating circumstances and the
unlawful possession of a firearm
and ammunition. The sentences meted
out against him are as follows: eighteen years imprisonment in
respect of the murder; twelve
years imprisonment for the robbery with
aggravating circumstances; and, ten years imprisonment for the
unlawful possession of a
firearm and the unlawful possession of
ammunition, which were taken together for purpose of sentence. The
sentences for robbery
with aggravating circumstances, the unlawful
possession of a firearm and ammunition were ordered to run
concurrently with the sentence
of eighteen years imprisonment imposed
for murder
[7]
The crux of the appellants’ appeal
against the sentences meted out against them is that when considering
their circumstances
cumulatively the sentences imposed are shocking
and inappropriate.
[8]
In respect of appellants 1 and 2, the
submission is that the trial court should have found substantial and
compelling circumstances
to exist justifying deviation from imposing
the prescribed minimum sentences. The argument before us was that
firstly, the trial
court failed to appreciate that the two appellants
spent about three years in custody awaiting trial. Counsel for the
two appellants
contends that from the record it does not appear as if
the trial court was aware of the length of time the two appellants
spent
in jail awaiting trial as same was never conveyed to the trial
court. Secondly, in respect of appellant 2, the trial court failed
to
take his relative youthfulness into account and instead
overemphasised his previous conviction of robbery which was not a
material
factor if compared with appellant 1’s previous
conviction of robbery.
[9]
It is not in dispute that when passing
sentence the trial court took into consideration the fact that,
appellants 1 and 2 spent
'some time’ in custody awaiting trial.
What is at issue is that the trial court was not aware of the length
of time they
spent. This is so because the appellants' counsel, when
addressing the trial court in mitigation of sentence did not state
that
period. The trial court was in that way not informed about the
period the appellants spent in custody awaiting trial and could not
have been otherwise aware of that period.
[10]
However, it has been held that the time
spent in custody awaiting trial is not in itself a substantial and
compelling circumstance
which would warrant deviation from the
prescribed minimum sentence. It is only but a factor which should go
into the basket with
other factors for consideration by the
sentencing court. This principle was enunciated in
Radebe
and Another v
S (726/12)
[2013] ZASCA 31
(27 March 2013) para 14 where the court in that case stated the
following:
“
A
better approach, in my view, is that the period in detention
pre-sentencing is but one of the
factors
that should be taken into account in determining whether the
effective period of
imprisonment
to be imposed is justified: whether it is proportionate to the crime
committed.
Such
an approach would take into account the conditions affecting the
accused in detention
and
the reason for a prolonged period of detention. And accordingly, in
determining, in respect of the charge of robbery with aggravating
circumstances, whether substantial and compelling circumstances
warrant a lesser sentence than that prescribed by the Criminal
Law
Amendment Act 105 of 1997 (15 years’ imprisonment for robbery),
the test is not whether on its own that period of detention
constitutes a substantial or compelling circumstance, but whether the
effective sentence proposed is proportionate to the crime
or crimes
committed: whether the sentence in all the circumstances, including
the period spent in detention prior to conviction
and sentencing, is
a just one.”
[11]
This is the only factor that was argued
in favour of appellant 1 and is in fact the only one that counts in
his favour. Even if
the trial court had been aware of the custodial
period it would not, in my view, have made any difference in the
sentence imposed
whether considered individually or cumulatively with
appellant 1’s other personal circumstances. Instead, the trial
court
considered the appellant's previous conviction of robbery and
lack of remorse to have aggravated sentence and as such, correctly
so, could not find any substantial and compelling circumstances to be
present.
[12]
It
has become trite that specified sentences are not to be departed from
lightly and for flimsy reasons which could not withstand
scrutiny.
[1]
[13]
Even in this instance, appellant 1’s
personal circumstances cannot withstand scrutiny. He was 28 years old
at the time of
sentencing and was 25 years old when the offences were
committed. His education goes as far as Grade 12 which he completed
in Kwaggafontein.
He was at the time of arrest unemployed, though he
sometimes did piece jobs. He was unmarried but had two children, ages
8 and
6, who stayed with their mother who was also not employed but
did a little bit of hairdressing on the side. His mother was 65 years
old and a pensioner. The appellant was in 2003 convicted of robbery
and sentenced to R3 000 or six months imprisonment which was
wholly
suspended for five years on condition that he is not convicted of
robbery during the period of suspension. The present offences
were
committed a few months before the expiry of his suspension. To my
mind, appellant 1’ personal circumstances are overshadowed
by
his moral blameworthiness in the commission of these offences. He is
the one who appeared to be the leader of the group. He
shot and
killed the deceased at point blank range, as the trial court found.
His sentence is aggravated by the previous conviction.
The trial
court correctly made a finding that the sentence imposed for the
previous conviction was not effective in that from a
simple robbery
appellant 1 has now graduated to a more serious offence of robbery in
the form of robbery with aggravating circumstances,
where a firearm
was used and another firearm found in his possession. And to add to
that he shot and killed a person. I am as a
result constrained to can
find that there are substantial factors which would have compelled
the trial court to deviate from the
prescribed minimum sentences
imposed in respect of him. The trial court did not misdirect itself
in this regard.
[14]
In respect of appellant 2, besides the
custodial period spent awaiting trial, the argument is that the trial
court should have considered
his youthfulness at the time of the
commission of the offences - he was 21 years old. Similarly as in the
custodial period, youthfulness
in itself is not a substantial and
compelling factor which would warrant deviation from the imposition
of the prescribed minimum
sentence. Counsel for the respondent
argued, correctly so, that there was no evidence before the trial
court that indicates the
immaturity of the appellant or that he was
influenced by the others and the trial court did not make such a
finding as well. I
am, however, inclined to think that if appellant
2’s circumstances are taken cumulatively, the trial court
should have found
substantial and compelling circumstances to exist
and should have deviated from imposing the prescribed minimum
sentence in his
case. And in failing to do so the trial court erred
in that it did not exercise its discretion judicially.
[15]
Appellant 2 was, as already stated, 21
years old at the time of the commission of the offence and was 24
years old when he was sentenced.
He went up to Grade 11 which he
completed in 2005 at Kwaggafontein. He could not go to school because
of financial problems. He
tried his hand at security studies. At the
time of the commission of the offences he was upgrading his education
at a college in
Middelburg. He also did piece jobs. The appellant’s
father passed away when he was still young. His mother was unemployed
and as such he assisted her to take care of his nieces, aged 11, 21
and 18 - one of them is still at school. In 2005 appellant
2 was
convicted of robbery and sentenced to six months imprisonment. It is
my view that the trial court erred in not finding substantial
and
compelling circumstances in respect of appellant 2. For, even though
appellant 2 was in possession of a firearm during the
commission of
the offences, which is a factor in aggravation of sentence, the fact
remains that he did not pull the trigger that
killed the deceased.
His oblique intent is a factor which should be considered as having
minimised his moral blameworthiness. I
do agree with the trial court
that individually taken, these factors are not substantial and
compelling, but, when they are considered
cumulatively they are
substantial and compelling and warrant deviation from the prescribed
minimum sentence. This court is therefore
at large to temper with the
sentences imposed by the trial court against appellant 2.
[16]
No argument was raised in respect of the
determinative sentences imposed on appellant 2, and I will have to
assume that the appellant’s
counsel was not concerned about the
other sentences imposed except that of life imprisonment. Counsel as
such, when asked, suggested
that a period of 20 years imprisonment be
imposed in place of the life imprisonment should this court find
substantial and compelling
circumstances to exist. I am of the view
that, in the circumstances of appellant
2,
a sentence as suggested by his counsel is just and appropriate and
all the other sentences should run concurrently with this sentence.
The new sentence should be ante dated to 26 September 2011 being the
date on which the initial sentence was imposed.
[17]
When arguing before us, counsel for
appellant 3 and 4 made no submissions pertaining to appellants 3 and
4. Counsel contended that
he has been instructed to appeal the
sentences on the basis of the grounds raised in the heads of argument
and did not have anything
more to add.
[18]
It appears from the evidence that lack
of previous convictions on the part of appellants 3 and 4 caused the
trial court to deviate
from the prescribed minimum sentence. It can
also be safely added that, even though they were each in possession
of firearms during
the commission of the offences, they, however, did
not discharge their firearms and were as a result found guilty of
murder on
the strength of the principles of common purpose. Their
oblique intent should be taken as a weighty mitigating factor.
[19]
But, I do not think that their sentences
should be tempered with. The trial court, in imposing sentence
against the two appellants,
considered all the factors which were in
their favour, and correctly so, found substantial and compelling
circumstances to exist
and thus deviated from the prescribed minimum
sentence. The sentences are, in their circumstances, just and
appropriate and not
shocking.
[20]
In the premises, I make the following
order:
1.
The appeal against the sentences imposed
against appellant 1 is dismissed.
2.
The appeal against the sentences imposed
against appellant 2 succeeds to the extent that the sentence of life
imprisonment is replaced
with a sentence of 20 years imprisonment and
that all the sentences are to run concurrently with the sentence of
20 years imprisonment.
3.
The sentence of life imprisonment
against appellant 2 is set aside and substituted with the following:
u
(a)
Accused 2 is sentenced to 20 years imprisonment.
(b)
The sentence is ante dated in terms of section 282 of Act 51 of 1977
to 26 September 2011."
4.
The appeal against the sentences imposed
against appellant 3 is dismissed.
5.
The appeal against the sentences imposed
against appellant 4 is dismissed.
E.M.
KUBU8HI
JUDGE
OF THE HIGH COURT
I
concur and it is so ordered
W.R.C
PRINSLOO JUDGE OF THE HIGH COURT
Appearances:
On
behalf of the appellants:
On
behalf of the respondent:
Adv.
A.L. ALBERTS Instructed by:
PRETORIA
JUSTICE CENTRE
2
nd
Floor FNB Building 206 Church Street Pretoria
Adv.
B.E MAOKE
Instructed
by:
DIRECTOR
OF PUBLIC PROSECUTIONS
Presidential
Building 28 Church Square PRETORIA 0001
MULLER.
AJ
[20]
This
is a minority judgment I will be brief in stating the reasons for my
dissent because it will not have any effect on the outcome
of the
appeal. I am in agreement with the majority that the appeal of the
appellant 1 3 and 4 in respect of the sentences imposed
on the
charges of murder and robbery with aggravating circumstances should
fail and also that the appeal of appellant 1 in respect
the sentence
for attempted murder should fail. I am also in agreement that the
appeal in respect of appellant 2 with regard to
the sentence of life
imprisonment should succeed to the extent suggested by my learned
sister.
[21]
I
part ways with regard to the appropriateness of the sentences imposed
on all the appellants in respect of the counts of unlawful
possession
of firearms and the unlawful possession of ammunition.
[22]I
am ever mindful that sentencing rests pre-eminently in the discretion
of the trial court
[2]
I am equally mindful that in the absence of a material misdirection
by the trial court, an appeal court cannot interfere with the
wide
discretion entrusted to the trial court only because the sentence is
not one that the court itself would have imposed.
[3]
To do so would amount to usurping the discretion of the trial
court
[4]
and it would erode the discretion of the trial court
[5]
An appeal court may be justified in interfering with the sentence
imposed by the trial court in the absence of a material misdirection,
when the disparity between the sentence of the trial court and that
which the appellate court would have imposed is so marked that
it can
properly be described as shockingly, startlingly or disturbingly
inappropriate.
[6]
[23]
The
learned trial Judge paid scant attention to the possession of the
firearms and ammunition charges in her judgment on sentence,
save to
state that the appellants were convicted of murder and robbery with
aggravating circumstances whilst being in possession
of
semi-automatic firearms. The learned trial judge deals with those
factors as follows:
“
The
sentences imposed, which were imposed were not effective in that from
simple robberies, they graduated to more serious robberies
in the
form of robbery with aggravating circumstances, where firearms
were
used and where firearms were found in their possession............
Taking
all factors into consideration, they deserve in my view, sentence as
prescribed for the offences.”
[24]
All
the appellants were charged of being collectively in unlawful
possession of firearms and ammunition on 14 June 2008 when the
murder
and robbery were committed. Appellant 1 (counts 6 and 7) and
appellant 2 (counts 8 and 9) in addition to counts 4 and 5,
were
charged, of the unlawful possession of firearms and ammunition found
in their possession on 1 July 2008 and 13 July 2008 respectively.
They were each sentenced to 15 years imprisonment in respect of the
unlawful possession of firearms charges taken together for
purpose of
sentence and 5 years imprisonment in respect of the possession of
ammunition also taken together. Appellant 3 and 4
were sentenced to
10 years imprisonment on counts 4 and 5 taken together for sentence.
[25]The
use of a firearm to kill the deceased to overcome resistance during
the robbery was, no doubt, taken into account in the
sentences passed
on the appellants in respect of the murder and robbery with
aggravating circumstances.
[7]
Those facts, in my respectful view, may not be taken into account
again when sentence is considered in respect of the unlawful
possession of firearms and ammunition charges. The aggravating facts,
namely, the use of firearms, had already been taken into
account in
respect of the sentences imposed for murder and robbery with
aggravating circumstances.
[8]
It is in my respectful view a misdirection to have done so.
[26]It
is also clear that the trial Judge was of the view that s 51
(2)(a)(i) of the Criminal Law Amendment Act 105 of 1997 (the
"Act”)
is applicable in respect of the unlawful possession of firearms and
ammunition
[9]
The Act came into operation on 13 November 1998. When the Act came
into operation the repealed Arms and Ammunition Act 75 of 1969
was
still in operation. The
Firearms Control Act, 60 of 2000
provides for
a maximum sentence of 15 years imprisonment for the unlawful
possession of a firearm (which includes a semi automatic
firearm),
whereas
s 51
(2) imposes a minimum sentence of 15 years imprisonment
in the absence of substantial and compelling circumstances for the
possession
of a semi automatic firearm.
[10]
[27]In
S
v
Baartman
u
the court held correctly in my respectful view, that the
Firearms
Control Act impliedly
repealed the minimum sentence regime in respect
of semi automatic firearms.
[11]
[28]In
S v
Thembalethu
[12]
the Supreme Court of Appeal stated the following with reference to s
51(2) of the Act and the provisions of the since repealed
Firearms
and Ammunition Act 75 of 1969:
‘
[6]
In my view properly construed the above provisions mean that a court
convicting an accused person of any offence referred to
therein is
obliged to impose a sentence of 15 years’ imprisonment unless
such court finds that substantial and compelling
circumstances
justifying the imposition of a lesser sentence than the prescribed
one are present.
The
prescribed minimum sentence of 15 years’ imprisonment applies
to first offenders only. The phrase “Notwithstanding
any other
law” in the section (ie s 51(2) clearly indicates that the
provisions supersede all other laws on sentence and
apply to all
offences listed in Part II of Schedule 2. That list includes an
offence referred to as the possession of a “semi-automatic
firearm”. The section’s wording is couched in unambiguous
and peremptory terms (shall), and the offences to which it
applies
are stipulated”.
[13]
[29]
The
appellants as stated earlier were charged under the provisions of the
Firearms Control Act.
[30]The
sentences of 15 years and 10 years imprisonment respectively imposed
by the learned trial judge are exceptional for the possession
of semi
automatic firearms
[14]
.
The sentences are disproportionate to the crimes, the criminals and
the interests of society. I am firmly of the view that the
disparity
between the sentences imposed in respect of their unlawful possession
of the firearms and ammunition and the sentences
which this court
would have imposed is so markedly different that the sentences can
rightly be described as startlingly inappropriate.
[31]
In
my view the appeal in respect of all the appellants should succeed in
respect of the sentences imposed on counts 4, 5, 6, 7,
8 and 9.
Appellant
1:
The
sentences imposed on counts 4, 5, 6 and 7 are set aside and replaced
by the following:
Counts
4 and 6 are taken together for purpose of sentence. 5 years
imprisonment.
Count
5 and 7 are taken together for purpose of sentence. 1 year
imprisonment.
Appellant
2:
The
sentences imposed on counts 4, 5, 8 and 9 are set aside and replaced
by the following:
Counts
4 and 8 are taken together for purpose of sentence. 5 years
imprisonment.
Count
5 and 9 are taken together for purpose of sentence. 1 years
imprisonment.
Appellant
3 and 4:
The
sentences imposed on counts 4 and 5 are set aside and replaced by the
following:
Counts
4 and 5 are taken together for purpose of sentence: 3 years
imprisonment.
MULLER
ACTING
JUDOE OP THE HIGH COURT
On
behalf of the appellants: Adv. A.L ALBERTS
Instructed
by: PRETORIA JUSTICE CENTRE
2
nd
Floor FNB Building 206 Church Street Pretoria
On
behalf of the respondent: Adv. B.E MAOKE
Instructed
by: DIRECTOR OP PUBLIC PROSECUTIONS
Presidential
Building 28 Church Square PRETORIA 0001
[1]
See S v Malgas
2001 (1) SACR 469
(SCA) 469 (SCA) ay 476 (e) to 476
<e) to 477 (b).
[2]
S i/ Barnard
2004 (1) SACR 191
(SCA) at 194 c - d.
[3]
S v Malgas
2001 (2) SA 1222
(SCA) para 12.
[4]
Ibid para 12.
[5]
S u Rabie 1975 (4) SA 855 (A).
[6]
S v Malgas (above) para 12.
[7]
'“aggravating circumstances', in relation to robbery or
attempted robbery, means- (i) the wielding of a fire-arm or any
other dangerous weapon; (ii) the infliction of grievous bodily harm;
or (iii) a threat to inflict grievous bodily harm, by the
offender
or an accomplice on the occasion when the offence is committed,
whether before or during or after the commission of
the offence;”
[8]
S v Bafeta and Another
1985 (1) SA 236
(AD) at 247 D-F.
[9]
"(2) Notwithstanding any other law but subject to subsections
(3) and (6) a regional court or a High Court shall sentence
a person
who has been convicted of an offence referred to in-
fa)
Part li of Schedule 2, in the case of-
(i)
first offender, to imprisonment for a
period not less than 15 years;
(ii)
a second offender of any such offence
to imprisonment for a period not less than 20 years; and
(Hi)
a third or subsequent offender of any such offence, to imprisonment
for a period not less than 25 years imprisonment.”
Part
II
of Schedule 2 refers, inter alia, to:
“
Any
offence relating to-
(a)
the dealing in or smuggling of
ammunition, firearms, explosives or armament: or
(b)
the possession of an automatic or
semi-automatic firearm, explosive or armament.”
[10]
s
3
provides: “No person may possess a firearm unless he or she
holds a licence permit or authorisation issued in terms of
the Act
for that firearm”.
[11]
S
v
Motaung
2015 (1) SACR 310
(GJ) at para
16-19
(Spilg J did not specifically disapprove of the judgment in
Baartman)
[12]
2009 (1) SACR 50 (SCA)
[13]
At 53 f-54 j.
[14]
S v Mofeme
1994 (1) SACR 1
(A); SvZondi
1995 (1) SACR 18
(A); S v
Mooieele
2003 (2) SACR 255
(T); S v
Manana
2007 (1) SACR 62
(T); S v Khonye
2002 (2) SACR 621
(T); S v Meyer
1992 (1) SACR 685
(E); S v
Ndwafame
1995 (2) SACR 697
(A); S v Madikane 2011 (2) SACR (ECG)