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[2016] ZAGPPHC 1084
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Ponti v S (A290/2016) [2016] ZAGPPHC 1084 (14 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION,PRETORIA)
Case
number: A290/2016
Date:
14/12/2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
LENNOX
PONTI APPELLANT
Versus
THE
STATE RESPONDENT
JUDGMENT
TOLMAY.
J:
[1]
The Appellant (accused no 3 in the trial Court) was charged with and
convicted of one count of murder and one of robbery with
aggravating
circumstances. He was sentenced on the murder charge to imprisonment
for life and on the robbery with aggravated circumstances
charge to
15 years imprisonment.
[2]
Leave to appeal was granted by the Supreme Court of Appeal against
sentence only. It was not argued by counsel for Appellant
that we
should intervene as far as the sentence on the robbery charge is
concerned. The argument was limited to the sentence of
life
imprisonment on the murder charge.
[3]
A short summary of the facts is essential. Accused 1 was employed by
the deceased. On the day of the incident Appellant was
accompanied by
the other accused to the house of the deceased, where the deceased
was brutally murdered and robbed of some of his
property. Accused 1
was arrested and he pointed out the appellant who in turn pointed out
accused 2. A bag containing head phones
was found in appellant's
possession and it was subsequently identified as the deceased's
property. It later transpired that the
appellant had also taken a
radio.
[4]
The J88 indicated the cause of death as strangulation, a broken neck
and head injuries.
[5]
Most of the evidence is not in dispute. The appellant however
disputed being found in possession of the head phones. The accused,
including the appellant, made substantial admissions at the onset of
the trial and all three of them consented to the handing in
of
statements made after their arrest.
[6]
According to Appellant's admitted statement, he arrived at the
deceased's home, spoke to the deceased, and then left. He also
states
that he took a radio and a bag from the premises. He admits that in
his presence accused 1 grabbed the deceased by the throat.
The
deceased was screaming, and he saw the deceased being locked in the
garage.
[7]
The content of extra-curial statements (confessions or admissions) by
one accused is not admissible against another.
[1]
As a result the statement made by Appellant is the only statement
that may be used against him to determine his involvement in
the
crimes committed. According to his statement he was not present when
the deceased was strangled. When he arrived back the deceased
was
already tied up. However after completing his statement the following
was added:
"
The deponent informs
me
that he left something we (sic) want
to add. DEPONENT: When Stanley called
me
for the second time,
after I took
a
bag and radio. The white was screaming, Stanley
grabbed him on
(sic) the throat, they took him into the garage
and they locked him inside the garage. That is all I know."
[8]
The other accused and the appellant did not testify and no witnesses
were called on their behalf consequently the only evidence
against
the Appellant is that contained in his statement. His involvement in
the crimes that were committed on that day is clear.
[9]
It was argued that Appellant played a minor role in the murder and
that this aspect would constitute compelling and substantial
circumstances.
[10]
The Appellant may not have been present during the actual murder of
the deceased but he never disassociated himself from what
was
happening.
[11]
The following personal circumstances pertaining to the Appellant were
considered by the Court a
quo
and is set out in the judgment
as follows:
"Accused
3 is also a first offender. He is 24 years old and did not receive
any formal education. He was taught to read and
write by his sister.
He arrived in Gauteng from the Transkei in 1996 in order to seek
employment. For about a year he worked in
Alexandria, thereafter he
worked in Brakpan as a painter, painting houses for about a year and
three months. Thereafter he was
unemployed. He then moved to a house
in Geluksdal and was paid R300-00 a month to take care of it. Then he
became involved in a
relationship with a woman called Mary and he has
fathered one child. His own father is dead and his mother lives in
the Transkei."
[12]
The Court a
quo
found that the murder and robbery were
premeditated and found that the manner in which the deceased died was
inconsistent with
dolus eventualis,
but indicated
dolus
directus.
[13]
The Court a
quo
found that no substantial and compelling
circumstances exist which would allow for a deviation from the
mandatory sentence of life
imprisonment.
[14]
It is trite that sentencing falls ultimately in the discretion of the
trial Court and that unless there is a misdirection or
the sentence
is shockingly inappropriate the Court of Appeal should not intervene.
[15]
Life imprisonment is the ultimate sentence that a court can impose.
In
S
v GN
[2]
the
Court held that life imprisonment must not be imposed lightly even
when it is the prescribed minimum sentence. The court held
that:
"It
is
axiomatic that, in order for it to arrive at
a
just
sentence,
a
court must have
a
balanced regard to the
nature and
seriousness
of the crime, the personal
circumstances of the accused and the legitimate
interests of
society. The result thereof is
that justice demands that, even
for similar crimes, different
sentences
must often be
imposed.”
And
further:
"It follows that,
even where the Act prescribes
a
minimum sentence, the courts
must still seek to differentiate between sentences in accordance
with the dictates of justice. Where the prescribed minimum
sentences is less than life imprisonment, such differentiation is
possible
either by imposing
a
heavier sentence than the
prescribed minimum or, where there are substantial and compelling
circumstances
so
to do, impose
a
lesser sentence.
Where the minimum prescribed sentence is life
imprisonment. it is impossible to differentiate otherwise
than by imposing
a
lesser sentence. Thus. where
the Act prescribes imprisonment for life
as a
minimum
sentence. the fact that it is the
ultimate
sentence must
be
taken into account.
Accordingly. in its quest to do justice, a court will
more
readily impose
a
lesser sentence where
the prescribed minimum sentence is imprisonment for life.
Put differently, where the prescribed minimum is life
imprisonment,
a
court
will more readily conclude that
the circumstances peculiar to the case
are substantial and
compelling, to the extent that justice requires
a
lesser
sentence than life imprisonment."
(My emphasis)
[16]
One is obliged in the light of the aforementioned authority to take
into consideration that life imprisonment is the ultimate
sentence
that our Courts can impose. However, to deviate from the prescribed
minimum sentence, one still have to find that there
are compelling
and substantial circumstances to do so. In this case the only
circumstances that may assist the Appellant is
his youth at the
time of the incident, the fact that he was a first offender and to a
much lesser extent the fact that, according
to his statement, he
didn't assist in the actual murder.
[17]
I acknowledge that due to his youth a greater possibility of
rehabilitation may exist. It is trite that with younger offenders
our
Courts consider the possibility of rehabilitation as an important
consideration in determining an appropriate sentence. The
fact that
the Appellant is young and a first offender must consequently be
given sufficient weight.
[18]
The suffering of victims and their families should also be given due
consideration. Even young people should take responsibility
for their
actions and one should guard against a too sympathetic approach
towards the young. That is why one should always return
to the ever
appropriate triad of balancing the rights of the accused, the rights
if the victim and the interest of society when
considering a
sentence. This was a brutal murder of an elderly man by three young
men.
[19]
In the light the all the circumstances I am of the view that the fact
that the Appellant was a first offender, and relatively
young
constitute substantial and compelling circumstances and that the
Court a
quo
misdirected itself by not finding so, consequently
this Court should intervene and impose a lesser sentence, but
Appellant should
serve a very long term of imprisonment.
[20]
Consequently I propose the following order:
1. The sentences on count
1is set aside;
2. The Appellant is
sentenced to 25 years imprisonment on count 1;
3. The sentence of 15
years on count 2, robbery with aggravating circumstances is
confirmed;
4. It is ordered that 10
years on count 1 will run concurrently with the sentence on count 2;
5. The effective sentence
is thus 30 years imprisonment; and
6. The sentence is
ante
dated to 27 February 2001.
_____________________
R
G TOLMAY
JUDGE
OF THE HIGH COURT
I
agree and it is so ordered:
_____________________
C
PRETORIUS
JUDGE
OF THE HIGH COURT
I
agree:
_____________________
N
TUCHTEN
JUDGE
OF THE HIGH COURT
[1]
S v Litako and others
2014 (2) SACR 431
(SCA) S v Mhlongo, S v Nkosi
2015 (2) SACR 323
(CC)
[2]
2010(1) SACR 93 (T)