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[2016] ZAGPPHC 370
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Moodley v S (A526/15) [2016] ZAGPPHC 370 (10 May 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG. PRETORIA)
APPEAL
NO:A526/15
DATE:
10 MAY 2016
In the matter
between:
ALVINO
MOODLEY
........................................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT
MOLOPA-SETHOSA J
(RABIE and MEYER
JJ concurring)
Case Summary: An
appeal against a sentence of 43 years’ imprisonment imposed
by_the High Court of South Africa, Gauteng Division
(Circuit Local
Division of Vereeniging Circuit Division), held at Vereeniging
(Snyders J).
Order
The appeal against
sentence is upheld.
[1] The appellant in
this matter, Alvino Moodley (1st accused in the court a quo),
together with his co-accused, Nishan Garieb (2nd
accused in the court
a quo) and Grant Buchenroder (3 rd accused in the court a quo),
appeared in the High Court of South Africa,
Gauteng Division,
(Circuit Local Division of Vereeniging Circuit Division), held at
Vereeniging, on the following charges:
[1.1] Count 1:
Kidnapping;
[1.2] Count 2:
Murder;
[1.3] Count 3:
Robbery with aggravating circumstance;
[1.4] Count 4:
Unlawful possession of firearm; and
[ 1.5] Count 5:
Unlawful possession of ammunition.
[2] On the 20th of
February 2004 the appellant pleaded not guilty to all charges. During
the course of the trial the appellant amended
his plea in respect of
counts 4 and 5 to guilty on both counts. The appellant was
subsequently convicted of all charges on the
12th of March 2004.
[3] On the 13th
April 2004 the appellant was sentenced as follows:
[3.1] Count 1: 5
years’ imprisonment;
[3.2] Count 2: 20
years’ imprisonment;
[3.3] Count 3: 15
years’ imprisonment;
[3.4] Count 4: 3
years’ imprisonment;
[3.5] Count 5: 1
year imprisonment;
[4] The sentences in
counts 4 and 5 were ordered to run concurrently. The effective
sentence of the appellant is therefore 43 years’
imprisonment.
The erstwhile accused 2 and 3, who were adults, were inter alia
sentenced to life imprisonment for murder [count
2].
[5] The appellant
was legally represented during the proceedings in the court a quo.
[6] On the 20th
August 2008 the appellant brought an application for leave to appeal
against his convictions and sentences before
the learned judge a quo
(Snyders J). The application for leave to appeal was refused by the
learned judge a quo. The appellant
petitioned the SCA and on the 24th
April 2015 leave to appeal against the sentences imposed upon the
appellant only was granted.
The appellant now appeals against his
sentences only, and the factual findings of the court a quo are
therefore accepted.
[7] The genesis of
the convictions and the sentences arose from events which occurred on
26 May 2003. The appellant, together with
his co-accused and other
persons, hijacked the motor vehicle of the deceased [a Toyota
sedan]; using a
firearm. The deceased was kidnapped at gunpoint and taken to a
secluded/ deserted place where he was shot and killed.
Thereafter the
perpetrators removed sound equipment, as well as the other personal
belongings from the deceased’s vehicle
and distributed it
amongst themselves.
[8] It is so that
during the trial none of the accused was completely candid with their
versions and the court a quo found that
each accused attempted to
diminish his role in the offences. The trial court relied on the
doctrine of common purpose to attribute
the actions of the different
perpetrators to the individual accused.
[9] The appellant
admitted that he had procured the firearm from his uncle’s
room, but claimed that it was for an innocuous
purpose. The appellant
belatedly amended his plea to guilty in respect of counts 4 and 5,
i.e. possession of firearm and ammunition
respectively.
[10] The appellant
claimed that the erstwhile accused 2 took possession of the firearm
and threatened the deceased to surrender
control of his motor
vehicle, inter alia by discharging a gunshot in the vehicle.
Thereafter they first collected a person by the
name of Bruce, who in
turn collected the erstwhile accused 3 from his place of employment.
Bruce then drove the vehicle to a secluded
spot where accused 2 and 3
removed the deceased from the vehicle and took him away. The deceased
did not return to the vehicle
before they drove away. It is common
cause that his body was later found at that spot.
[11] The erstwhile
accused 2 attributed the actions the appellant claims to have been
performed by him (accused 2) to the person
known as Bruce.
Accused 3 also
claimed that Bruce removed the deceased from the vehicle without his
involvement, although he admitted in his confession
that it was done
by him and accused 2, whereupon accused 2, according to accused 3,
shot the deceased.
[12] From the
evidence on record it seems that Bruce was a known gangster and an
intimidating unsavoury character. He was, in addition,
older than any
of the accused. The trial court however did not find that Bruce had
any influence on the appellant and his co-accused.
[13] The court a quo
found that the inference is justified that all the members of this
group actively participated in the robbery,
kidnapping and murder;
and held that their intention in the form of dolus directus had been
proved.
[14] In the
judgement on sentence the court a quo correctly mentioned the fact
that none of the accused provided any context to
their motive,
reasoning or feelings pertaining to the events, and this left the
court a quo at a disadvantage in establishing each
accused’s
moral blameworthiness.
[15] The state
proved no previous convictions against the Appellant.
[16] The following
personal circumstances of the Appellant were placed on record:
[16.1] the appellant
was 17 years old at the time of the commission of the offences, and
about a month away from his 18th birthday
at the time he was
sentenced;
[ 16.2] the
appellant was not married but had a young child;
[16.3] the appellant
went to school up to grade 9 during 2001 (he did not continue with
his studies as he had impregnated his girlfriend
and he wanted to
look for a job to provide for his baby but he was registered for
grade 12 at the time of his arrest);
[16.4] the appellant
was employed at Sappi as a filing clerk on a part time basis at the
time of the commission of the offences;
[16.5] he lived with
his mother. His parents divorced when he was 4 years old. The parents
remarried and both have two children
each in their second marriages.
He did not have a good relationship with his father.
[16.6] he and his
family belonged to the Hindu religion and they attended and practised
their religion regularly; and
[16.7] the appellant
was a first offender.
[17] The Appellant
in essence appeals against the severity of the sentences and submits
that the sentence is shocking and not justified
in the circumstances;
that an effective term of 43 years’ imprisonment is not in
harmony with the notion that a custodial
sentence should be the last
resort
in the case of
juvenile offenders and should then only be imposed for the shortest
appropriate period.
[ 18] Counsel for
the appellant submitted that the court a quo misdirected itself in
not having sufficient regard to the fact that
the appellant was a
child at the time of the commission of the offences; with specific
reference to the severity of the individual
sentences, which he
submitted were excessive and shockingly inappropriate considering the
appellant’s age.
[19] Further that
the court a quo misdirected itself in not ameliorating the cumulative
effect of the sentences; particularly considering
that the offences
were closely related in time and place and had their origin in the
same continuous transaction.
[20] Counsel for the
respondent, on the other hand, submitted that the court a quo found
substantial and compelling circumstances
to exist in the age of the
appellant, and thus did not impose life imprisonment, as it did with
the appellant’s co-accused.
[21] Counsel for the
respondent further submitted that the appellant, at that age
of 17 years, acted
like an adult; that the appellant is the one that brought the firearm
and the ammunition that was used to commit
the offences herein; and
that the appellant did not show any remorse.
[22] However,
although counsel for the respondent did not formally concede that 43
years’ imprisonment was too excessive for
a youthful offender
like the appellant, he correctly acknowledged that 43 years’
imprisonment was too harsh, and that the
court a quo could have
ordered the sentences imposed to run concurrently, to ameliorate the
cumulative effect of the sentences.
[23] The imposition
of a sentence is pre-eminently for the sentencing court. It is trite
that a court of appeal does not lightly
interfere with a sentence
imposed by the court of first instance; see R v Lindley
1957 (2) SA
235
(N). A court of appeal will interfere with the sentence only if
there is a material misdirection or if the court could not, in the
circumstances of the case, reasonably have imposed the particular
sentence. In S v Salzwedel 1999 (2) SACR 586 (SCA) at 591F-G
it was
held that:
“A court of
appeal was entitled to interfere with a sentence imposed by a trial
court in a case where the sentence is ‘disturbingly
inappropriate’, or totally out of proportion to the gravity or
magnitude of the offence, or sufficiently disparate, or vitiated
by
misdirection of a nature which shows that the trial court did not
exercise its discretion reasonably. ”
[24] The general
approach to be followed by a Court of Appeal with regards to sentence
is set out as follows in S v Pieters
1987 (3) SA 717
(A) at 727:
“Met
betrekking tot appelle teen vonnis in die algemeen is daar
herhaaldelik in talle uitsprake van hierdie Hof beklemtoon
dat
vonnis-oplegging berus by die diskresie van die Verhoorregter. Juis
omdat dit so is, kan en sal hierdie Hof nie ingryp en die
vonnis van
'n Verhoorregter verander nie, tensy dit blyk dat hy die diskresie
wat aan horn toevertrou is nie op 'n behoorlike of
redelike wyse
uitgeoefen het nie. Om dit andersom te stel: daar is ruimte vir
hierdie Hof om 'n Verhoorregter se vonnis te verander
alleenlik as
dit blyk dat hy sy diskresie op 'n onbehoorlike of onredelike wyse
uitgeoefen het. Dit is die grondbeginsel wat alle
appelle teen vonnis
beheers. ”
Therefore the issue
of sentence is always a matter for the discretion of the trial court.
In Kgosimore v S
1999 (2) SACR 238
(SCA) at par [10], the Supreme
Court of Appeal held that:
“It is trite
law that sentence is a matter for the discretion of the court
burdened with the task of imposing the sentence.
Various tests have
been formulated as to when a court of appeal may interfere. These
include, whether the reasoning of the trial
court is vitiated by
misdirection or whether the sentence imposed can be said to be
startlingly inappropriate or to induce a sense
of shock or whether
there is a striking disparity between the sentence imposed and the
sentence the court of appeal would have
imposed. All these
formulations, however, are aimed at determining the same thing; viz.
whether there was a proper and reasonable
exercise of the discretion
bestowed upon the court imposing sentence. In the ultimate analysis
this is the true inquiry.... Either
the discretion was properly and
reasonably exercised or it was not. If it was, a court of appeal has
no power to interfere; if
it was not, it is free to do so. I can
accordingly see no juridical basis for the stricter test suggested by
counsel; nor is there
anything in section 316B of the Criminal
Procedure Act, or for that matter section 310A, to suggest
otherwise... It follows that,
in my view, whether it is the attorney
-general (now the Director of Public Prosecutions) or an
accused who appeals
against a sentence, the power of a court of appeal to interfere is
the same. ”
[25] It became clear
that the main issue in this appeal is whether the court a quo erred
in not further taking into account the
young age of the appellant in
imposing a harsh sentence of 43 years’ imprisonment to the 17
year old appellant, as he then
was, [though the court did find that
because of the youthful age of the appellant at the time of the
commission of the offences,
it could not impose life imprisonment, as
it did with the appellant’s co-accused].
[26] In arriving at
the sentence she imposed the learned judge a quo did give cognizance
to the principles set out in S' v Nkosi
2002 (1) SA 135
(W) at 136F -
137E. The principles informing the sentencing of child offenders have
now been crystalized [after the sentence herein
was imposed]. See S v
B 2006 (1) SACR 311 (SCA); Centre for Child Law v Minister of Justice
and Constitutional Development and
others
2009 (6) SA 632
(CC).
[27] The principle
that a child offender should only be deprived of his liberty as a
measure of last resort; and then only for the
shortest possible time
is now well entrenched in our law and the application thereof
militates against lengthy terms of imprisonment
for child offenders.
Where imprisonment is unavoidable not only the duration, but also the
form of imprisonment should be tempered.
See: SvN
[2008] ZASCA 30
;
2008 (2) SACR 135
(SCA) para [39].
[28] In arriving at
an appropriate sentence however, even in cases where the offender is
under the age of 18 years old, as in this
case, it is still
appropriate that aggravating factors also be taken into account. The
court a quo correctly found that the appellant
and his co-accused had
direct intent to murder the deceased. The court a quo also correctly
found that the offences were pre-planned.
The firearm that was used
in the commission of the offences was obtained by the appellant. The
appellant knew the deceased. The
deceased, who was 20 years old at
the time he was murdered, was executed with a bullet to the head. It
can only be correct that
these aggravating factors should also be
taken into account in arriving at an appropriate sentence; of course
balancing all the
factors and taking into account the youthful age of
the appellant at the time of the commission of the offences herein.
[29] No doubt, 43
years’ imprisonment is harsh and excessive, especially for a 17
year old boy; also taking into account that
the convictions originate
from the same events, which was a continuous transaction.
This alone, should
have ameliorated the cumulative effect of the sentences imposed.
[31] I now consider
whether the sentences should be ordered to run wholly concurrently.
It is to be recalled that the trial court
ordered only the 1 year
sentence in count 5 to run concurrently with the sentence in count 4.
In this regard the position can be
summarised as follows. Where an
accused person is convicted of more than one offence, it is a
salutary practice for a sentencing
court to consider the cumulative
effect of the respective sentences. In this regard, an order that the
sentences should run concurrently
may be used to prevent an accused
person from undergoing a severe and unjustifiably long effective term
of imprisonment. See S
v Whitehead
1970 (4) SA 424
(A); S v Kwenamore
2004 (1) SACR 385
(SCA).
[32] An order that
sentences should run concurrently is called for where the evidence
shows that the relevant offences are ‘inextricably
linked in
terms of the locality, time, protagonists and, importantly, the fact
that they were committed with one common intent’;
see S v
Mokela
2012 (1) SACR 431
(SCA) para [11]. Put differently, where
there is a close link between offences, and where the elements of one
are closely bound
up with the elements of another, the concurrence of
sentences in particular should be considered. See S v Mate
2000 (1)
SACR 552
(T).
[33] In the present
case, there was indeed an inextricable link between all the offences
in terms of the locality, time and the
protagonists.
There was also a
substantial overlap in the overall intent in respect of the crimes.
In my view, the failure of the trial court
to take these factors into
consideration resulted in the cumulative effect of the sentences
being disturbingly inappropriate. These
factors justified an order of
concurrence in the sentences. This on its own is a basis for
interference by this court. In my considered
view the learned judge a
quo misdirected herself in not taking into account the cumulative
effect of the sentences imposed; especially
also taking into account
the age of the appellant at the time of the commission of the
offences.
[34] Where more than
one offence is committed during the same incident, the court should
already have regard to the aggravating
features when imposing
sentence for the primary offence, including other offences being
committed at the
same time; and that the sentences for these attendant offences should
be ordered to run concurrently with the sentence
for the primary
offence. See S v Moloto\9%2 (1) SA 844 (SCA) at 854 E - H
[35] In the
circumstances the appeal on sentence should be upheld. Regard being
had to all the relevant factors present in this
case, including the
age of the appellant at the time of the commission of the offences
herein, the aggravating and mitigating circumstances,
the following
order is made:
1. The appeal
against sentence is upheld and the sentences of the court a quo are
set aside and replaced with the following order:
“[1.1] Count
1: 5 years’ imprisonment;
[1.2] Count 2: 18
years’ imprisonment;
[1.3] Count 3:15
years’ imprisonment;
[1.4] Count 4: 3
years’ imprisonment;
[1.5] Count 5: 1
year imprisonment.
2. The sentences in
counts 1, 3, 4 and 5 are ordered to run concurrently with the
sentence in count 2. The effective sentence of
the appellant is
therefore 18 years’ imprisonment”.
3. In terms of
section 282
of the
Criminal Procedure Act 51 of 1977
, as amended, the
substituted sentence is ante-dated to 13th April 2004, being the date
on which the appellant was sentenced.
L M MOKPA-SETHOSA
JUDGE OF THE HIGH COURT
I agree
CP RABIE
JUDGE OF THE HIGH
COURT
I agree
P A MEYER JUDGE
OF THE HIGH COURT