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[2016] ZAGPPHC 343
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Dlamini v S (A735/2015) [2016] ZAGPPHC 343 (11 March 2016)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
no. A735/2015
DATE:
11 MARCH 2016
In the matter
between:
F.O.
DLAMINI
..........................................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
1. The appellant
appeals to this court by leave of the trial court against the
sentence of 50 years' imprisonment imposed upon him
in the Circuit
Court of Vereeniging on 9 November 1998.
2. The appellant was
part of a criminal gang which broke into a shopping centre during the
night of 5 April 1997 and stole four
shot gun rifles, a number of
firearm magazines and cartridges as well as certain other items. A
few days later on 9 April 1997
the appellant was again part of a gang
which intended to rob certain shops in the shopping centre. This
time, however, the security
guards were alerted and two of them went
to investigate. The two security guards confronted members of the
gang but were shot and
killed. Their firearms were also stolen.
3. The appellant
stood trial with two of the gang members. The appellant was convicted
of the following crimes: two counts of murder;
robbery with
aggravating circumstances; housebreaking with the intent to steal and
theft; two counts of the unlawful possession
of firearms; and one
count of unlawful possession of ammunition. The appellant was
sentenced as follows: 25 years' imprisonment
in respect of each of
the murder charges which were ordered to be served concurrently; 15
years' imprisonment in respect of the
robbery and house¬breaking
charges respectively which were ordered to be served concurrently; 7
years' and 5 years' imprisonment
respectively in respect of the two
unlawful possession of firearms charges of which three years of the
five-year sentence were
ordered to run concurrently with the sentence
of seven years; 1 year imprisonment in respect of the charge for the
unlawful possession
of ammunition. The effective sentence was
therefor one of 50 years imprisonment.
4. It was submitted
on behalf of the appellant that the effective sentence of 50 years
imprisonment was a shockingly harsh sentence
and negated the
principle of rehabilitation of the appellant.
5. On behalf of the
State it was submitted that the sentence was not vitiated by
irregularity or misdirection and that it was not
disturbingly
inappropriate. In the heads of argument reference was made to
decisions by our courts which emphasised the need for
heavier
sentences for violent and premeditated crimes to serve the interests
of the public and to avoid bringing the administration
of justice
into disrepute.
6. The personal
circumstances of the appellant referred to in the judgement on
sentence by the trial court were the following: the
accused was 19
years of age when the offences were committed and 21 years at the
time of sentencing. According to a welfare report
the appellant
passed standard 8 at school and thereafter worked as a security
official on a part-time basis at a security firm
in Vereeniging. The
appellant was the product of a broken home, his parents having been
divorced when he was still in his early
teens. The appellant had
three previous convictions dating from 19 August 1994. These
convictions emanated from one event which
constituted housebreaking
with the intent to steal and theft of firearms from a safe in a
private residence.
7. In aggravation of
sentence the trial court considered the seriousness of the offences
and the fact that the actions of the appellant
and his cohorts had
been meticulously planned. This was proved, inter alia, by the theft
of firearms, which consisted of shotguns,
a few days prior to the
main heist when the security guards were killed as well as the fact
that the appellant wore a bullet-proof
vest on the night in question.
The appellant and the others waited for the security guards in the
dark when they went to investigate
the barking of a dog and shot them
down in cold blood. In mitigation the court considered the factors
mentioned above as well as
the youth of the appellant and the
possibility of rehabilitation.
8. Since the
imposition by the trial court of the sentence of 50 years'
imprisonment the Supreme Court of Appeal has in a number
of cases
pronounced on the undesirability of excessively long sentences being
imposed by trial courts. In granting leave to appeal
to this court
the trial court acknowledged this fact and referred to the then
latest judgement of the Supreme Court of Appeal in
the matter of
Zondo v S (627/12)
[2012J ZASCA 51
(28 March 2013)], It is
appropriate to refer to the following finding by that court:
This court has
repeatedly warned against excessively long sentences being imposed by
trial courts. In S v Mhlakaza
[1997 (1) SACR 515
SCA at 519 g] the
court had to consider whether sentences of imprisonment, which are
cumulatively far in excess of 25 years, are
proper. Harms JA, dealing
with the element of deterrence, noted that although it remained,
according to judicial precedent, an
important consideration when
imposing sentence, its effectiveness in deterring others from
committing (similar) offences was unclear.
He further stated
that '(a)s far as deterring the accused is concerned, it should be bo
me in mind that there is no reason to believe
that the deterrent
effect of a prison sentence is always proportionate to its length'
before going on to state that a lengthy term
of imprisonment would
serve none of the purposes of punishment and would simply serve to
appease public opinion. He pointed out,
accordingly, that sentences
of imprisonment ought to be realistic and should not be open to the
interpretation that they have been
designed for public consumption.
See also: S v Skenjana
1985 (3) SA 51
(A) at 55 C-D; S v Siluale
1999
(2) SACR 102
(SCA) at 106g-107a; S v Bull; S v ChavuHa
2001 (2) SACR
681
(SCA) para 22 and S v Maitafa
2003 (1) SACR 80
(SCA) para 7-3/
9. I respectfully
agree with the sentiments expressed in the aforementioned cases. It
is not necessary, in my view, to refer to
other authority which
espoused the same principles. Although every case should be
considered on its own merits, I am of the view
that the term of
imprisonment imposed upon the appellant was too lengthy to serve the
purposes of punishment. It also does not
cater sufficiently for the
youthfulness of the appellant when he committed the offences in
question nor of the possibility of his
rehabilitation. It was not
suggested that the appellant could not be rehabilitated.
10. I am fully aware
of the seriousness of the offences committed by the appellant. I am
also deeply aware of the callousness of
the murders where two
security guards were shot dead in cold blood. However, in my view a
lesser sentence would equally serve the
purposes of punishment having
regard to the nature of the crimes, the circumstances attending its
commission, the legitimate interests
of society and the interests of
the victims. On the other hand, a sentence of 50 years' imprisonment
would, for somebody of the
age of the appellant, create a sense of
helplessness rather than result in his possible rehabilitation.
11. On behalf of the
appellant it was submitted that the present sentence of 50 years
should be replaced by a sentence of 38 years.
In my view, however, a
sentence of 35 years' imprisonment would be adequate punishment for
the crimes committed and would offer
the appellant an opportunity to
become a useful member of society.
12. In my view the
individual sentences imposed in respect of the separate offences
should not be varied for they reflect the seriousness
of the offences
and the legitimate responses thereto. It would be just and
justifiable, however, to soften the cumulative effect
thereof by
ordering some thereof to be served concurrently.
13. In the result
the following order is made:
1. The appeal
against sentence is successful and the sentences imposed by the trial
court is set aside and replaced with the following:
"Count one, 25
years' imprisonment; count two, 25 years' imprisonment. It is ordered
that the sentences on count one and count
two be served concurrently.
Count three, 15 years' imprisonment; count four, 15 years'
imprisonment. It is
ordered that 10 years of each of the sentences in respect of count
three and count four be served concurrently
with the sentence in
respect of count one. Count five, 7 years' imprisonment; count six, 1
year imprisonment; and count 7, five
years' imprisonment. It is
ordered that the whole of the sentences imposed in respect of count
five, six and seven be served concurrently
with the sentence in
respect of count one. The effective sentence of the appellant is
therefore 35 years' imprisonment."
2. The sentence of
the appellant is ante-dated in terms of section 282 of the Criminal
Procedure Act, Act 51 of 1977, to 9 November
1998.
C.P. RABIE
JUDGE OF THE HIGH
COURT
I agree
N.M MAVUNDLA
JUDGE OF THE HIGH
COURT
I agree
M.H.E. ISMAIL
JUDGE OF THE HIGH
COURT