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[2016] ZAGPPHC 1101
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Mosoma v S (A843/2014) [2016] ZAGPPHC 1101 (14 December 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
NORTH
GAUTENG DIVISION, PRETORIA
CASE
NO: A843/2014
14/12/2016
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
In
the matter between:
SIMON
MAYISHANE
MOSOMA
Appellant
and
THE
STATE
Respondent
JUDGMENT
MSIMEKI
J.
INTRODUCTION
[1]
On 21 May 2010, the appellant appeared before Matojane J, charged
with:
Count 1:Murder,
Count 2: rape; and
Count 3: Robbery with aggravating
circumstances.
[2]
He, on the same day, pleaded guilty to the charges and the Court a
quo
sentenced him as follows:
1. Murder: 25 years imprisonment;
2. Rape:16 years imprisonment;
3. Robbery with aggravating
circumstances: 8 years Imprisonment
4. years of Count 3 were ordered to
run concurrently with the 16 years on Count 2. Effectively, the
appellant was sentenced to 45
years imprisonment.
[3]
On 6 August 2013 the appellant applied for leave to appeal against
the sentence. The Court a
quo
acceded to the application and
granted the appellant the leave that he applied for. The appellant,
in the main, is appealing against
the sentence.
[4]
Advocate J. Van Vuuren and Mr Kgakgara represented the State and the
appellant when the appeal was argued.
[5]
The appeal, in a nutshell, is based on the ground that the sentence
is severe and inappropriate.
BRIEF
BACKGROUND FACTS
[6]
The deceased and the appellant worked for the same employer, the
deceased as a domestic worker and the appellant as a gardener.
The
two, prior to the incident that led to this case, had a
misunderstanding which developed into an altercation. The appellant,
after the incident, relocated to Dennilton where he committed an
offence which resulted in his being sentenced to a term of
imprisonment.
Upon his release from jail, after serving 9 months, the
appellant decided to go to his employer to get the deceased to
apologise
for her conduct which, according to him had been offensive;
The deceased did not take the appellants approach kindly. She was
upset.
The appellant took a garden fork from the garage and stabbed
the deceased therewith in her back. He then forced the deceased into
the garage where 'he proceeded to assault her by trampling on her. He
raped the deceased who, at the time, was bleeding. The appellant
thereafter hit the deceased on her head with an iron rod and left her
for dead. In the process, the appellant, before leaving,
stole the
items which are listed in the indictment. A panel of three senior
specialist psychiatrics, in the employ of Mankweng
Hospital in
Poiokwane, after observing the appellant, found him fit to stand
trial and being a person who had the capacity to appreciate
the
wrongfulness of his actions when the offences were committed. He was
found not to be mentally impaired or having any mental
defect.
[7]
The appellant called Dr Chabalala, a psychiatrist, to testify in
mitigation of the sentence which the Court a
quo
was to pass.
THE
APPELLANT'S PERSONAL CIRCUMSTANCES
[8]
The following personal circumstances are worth noting.
1. The appellant was 32 years old when
he committed the offences;
2. He was not married and had no
children;
3. His highest level of education was
standard 2;
4. The appellant did odd jobs, such as
car painting, brick making and gardening;
5. The appellant spent 4 years in
custody awaiting trial;
6. He pleaded guilty and did not waste
the Court a quo's time;
7. He Is remorseful and sorry for what
he did and apologised to the deceased's family members, the community
and the Court
[9]
In S v Pieters
1987 (3) SA 717
(A) at 720C the Court said:
"The
Appellate Division
will not lightly substitute
its
own judgment regarding
a
suitable
sentence
for that of
a
trial Judge.”
At
720E the court further said:
“
...It is essential to stress
that the final, crucial question still remains: could the trial Judge
reasonably have imposed the death
sentence? It would accordingly only
make sense for the Appellate Division to put it on record that it
would not have imposed the
death penalty in the first instance, if
the circumstances of the case were of such a nature that that finding
leads to the further
finding that the Appellate division is convinced
that the trial Judge could not reasonably have imposed the death
penalty.”
( my emphasis).
[10]
Webster J in
S v Makena
2011 (2) SACR 294
at [13]
said:
"What has been said about
rehabilitation and reformation applies to·the·period of
the appellants' rehabilitation
viewed from the appropriateness or
otherwise of the imprisonment for fifty (50) years.
It is
my considered view based on the sentences emanating from the Supreme
Court of Appeal that effective sentences exceeding 25
years’
imprisonment are not confirmed lightly. Again the basis for this may
be the emphasis on reformation and rehabilitation
based inter alia on
the constitutional precepts that punishment should not be cruel or be
deemed to be such.
This statement is made with the full
knowledge and appreciation of the gravity and devastating effects
that the loss of the victim's
life has inevitably inflicted on his
family, society and the country. The need to have regard for a
convicted person's personal
circumstances serve precisely to balance
the principles that must be considered when sentencing…”
(my emphasis),
[11]
In
S v Rabie 1975 (4) SA (A) 855 at 8570-E
Holmes JA said:
“
1. In every appeal against
sentence, whether imposed by a magistrate or a Judge, the Court
hearing the appeal-
(a)
should be guided by the principle that punishment is
“
pre-eminently a
matter for the discretion of the
trial Court";
And
(b)
should be careful not to erode such discretion: hence the further
principle that the sentence should only be altered if the
discretion has not been “judicially and properly exercised.”
2. The test under (b) is whether
the sentence is vitiated by irregularity or misdirection or is
disturbingly inappropriate".
(my emphasis).
[12]
Scott JA in·
S v Kgoalmore 19S9
(2)
SACR 238 (SCA) at
241 [10]
said:
"
It is trite law
that Sentence is a matter for the discretion at 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 vitiated
by misdirection or
whether the sentence imposed can be said to be startlingly
inappropriate or to induce a sense of shock 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 enquiry
. (Compare S v Pieters
1987 (3) SA 717
(A) at 727G-I). Either the discretion was property
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.”
(my emphasis).
[13]
The Court, dealing with the purpose of punishment, in
S v Rable
(supra) at 862A
said:
"(f) The main purpose of
punishment are deterrent, preventive,
reformative
and retributive”
(my emphasis).
Again
at
862G in S v Rabie (supra),
Holmes JA said:
“
To
sum up: in
general: Punishment should fit the criminal as well
as
the
crime, be fair to society,
and be blended with a measure of
mercy,
according to the circumstances"
.
(my emphasis).
[14]
Mr Van Vuuren submitted that the case was replete with aggravating
circumstances which the trial Court had duly considered.
These
according- to him, are:
1. That the offences were prevalent in
the area;
2. That the offences were serious with
the level of violent offences being high in the country;
3. The interests of society;
4. The fact that the deceased was a
vulnerable victim who was incapable of defending herself against the
appellant;
5. That the death of the deceased
impacted very badly on :her family;
6. That the appellant did not care
about the well-being of the deceased whilst he raped her and
satisfying his own needs i.e.: whether
she bled to death or not
7.
That the Injuries at the deceased sustained were very serious.
[15]
To counter Mr Kgakgara’s submission that the time spent in
custody, as it was held in
S v Vilikazi
[2008] ZASCA 76
;
2009 (1) SACR 165
(SCA) at
[13]
where the Court said:
“
[13] In my view there should
be no rule of thumb in respect of the calculation of the weight to be
given to the period spent by
an accused awaiting trial. (See also S v
Seboko
2009 (2) SACR 573
(NCK) para 22) A mechanical formula to
determine the extent to which the proposed sentence should be
reduced, by reason of the
period of detention prior to conviction, is
unhelpful.”
At
[14], the court said: ·
“
[14] 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 Procedure 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
.”
(my emphasis).
[16]
In
S v Matyityi
2011 (1) SACR 40
(SCA) at 47a-d,
when dealing
with regret and remorse, the Court said:
"There is
,
moreover, a
chasm between regret and remorse.
Many accused persons well
regret their conduct, but that does not without more translate to
genuine remorse. Remorse is a gnawing
pain of conscience tor the
plight of another. Thus genuine contrition can only come from an
appreciation and acknowledgement of
the extent of one's error
.
Whether the offender is sincerely remorseful, and not simply
feeling sorry for himself or herself at having been caught, is
a
factual question. It is to the surrounding actions of the accused,
rather than what he says in court, that one should rather look.
In
order for the remorse to be a valid consideration, the penitence must
be sincere and the accused must take the court fully into
his or her
confidence. Until and unless that happens, the genuineness of the
contrition·
alleged to exist cannot be determined.
After all, before a court can find that an accused person Is
genuinely remorseful, it needs
to have a
proper appreciation
of, inter alia: what motivated the accused to
commit the deed:
what has since provoked his or her change of heart and whether he or
she does indeed have a true appreciation of
the consequences of those
actions.
(my emphasis).
[17]
Mr Van Vuuren submitted that the appellant demonstrated no real
contrition for his actions when he explained the events of
this day
in question to psychiatrists and the probation officer. It is said
that the appellant was smiling when he narrated the
events. of the
day to Dr. Chabalala. This, in my view, does not only mean that the
appellant did not see what transpired In a serious
light. This could
also mean that the appellant is someone who genuinely needs medical
as well as other relevant assistance. Surely,
the appellant's
behaviour leaves a·number of things to be desired. In this
regard, what happened concerning the deceased
and himself speaks
volumes. The facts of the case properly considered, in my view,
clearly demonstrate that the appellant's behaviour
in this case is no
ordinary conduct. What the appellant did, after being away from the
deceased for 9 months, should be clear enough
that the appellant may
well have behaved as Dr Chabalala explained in his report.
[18]
Dr J Chabalala, a psychiatrist, examined the appellant after the
conviction. According to Dr Chabalala the appellant is mentally
retarded to a minor extent with features of anti-social personality
disorder, emotionally immature lacking empathy and with no
emotional
resource to control his anger. According to Dr Chabalala the
appellant acted without thinking of the consequences.
[19]
The probation officer, Muroa J. V in the report which forms pages 125
to 131 of Volume 2 of the Court record at paragraph 18
discloses that
"1. It appears as if the
accused lack a clear understanding of the consequences of his actions
and often fails to take responsibility.
He freely and confidently
explained what transpired during the Incident as if he had to defend
himself even if it meant taking
another person's life".
(my
emphasis).
2. The appellant has no ability to
control himself.
3. With intensive therapy the
appellant
"can learn to respect human
dignity,
have self-control, to be assertive". to be able to control his
temper, realise his potentials, develop better conflict
management
skills and as such manage to live in peace with other people
".
(my emphasis).
4. The appellant has skills such as
brick making, gardening and painting which if improved might assist
the appellant feel important
[19]
The three psychiatrists, Dr C. Grobler, Principal Specialist; D E
Weiss, Chief Specialist and Dr J. J Bothma, Senior Specialist,
after
observing the appellant found that:
1. The appellant would be able to
follow court proceedings;
2. Had no mental illness;
3. Was fit to stand trial md that he
had the capacity to appreciate the wrongfulness of his action at the
time of the alleged offence
and his ability to act accordingly was
not impaired by mental illness or defect.
[20]
The evidence of Dr Chabalala and that of the Probation Officer is
more or less the same: They, however, both .saw the appellant
at
different intervals. The fact that the three psychiatrists found that
the appellant would follow court proceedings and that
he was fit to
stand trial, in my view, does not negate Dr Chabalala's evidence as
well as that of the Probation Officer. The facts
of the case, in my
view, seem to confirm the evidence. One should not stop the enquiry
at the stage where it appears that the person
interviewed knows what
rape is because this, in my view, should not be enough. One does not
easily come by the facts of this case
where the appellant, Indeed,
behaved in a very strange way. One would have expected the appellant
to have been satisfied with the
fact that he had relocated. The
altercation between the deceased and the appellant, under normal
circumstances, ought not to have
led to the death of the deceased.
The behaviour; in my view, seems to confirm the Probation Officer's
observation as well as that
of Dr Chabalala.
[21]
Going back to Dr Chabalala's report, it is important to note that he
describes the appellant as someone who:
1. is mentally retarded to a minor
extent (Borderline rerdation).
2. Has features of Antisocial
Personality Disorder. The appellant according to him lacks empathy
and is very reactionary over trivials.
It appeared strange to Dr
Chabalala that the appellant: could get sexually aroused by a person
who was lying on the floor and bleeding
from her head and dying.
3. Lacked inner ego strength - the
ability to take frustrations and move on as shown by his return 9
months later ·to avenge
himself. He took advantage of the weak
to bolster his ego where circumstances permit. This, according to
Dr.Chabalala, is borne
out by the appellant getting sexually aroused
when he saw a weak and defenceless deceased.
This
is the kind of unusual behaviour I referred to above.
[22]
Mr Van Vuuren submitted that the aggravating circumstances were such
that the appeal ought to fail. I do not think that it
is enough to
consider the· aggravating circumstances and then submit as·Mr
Van Vuuren did; the tests laid down by
our case law have to determine
the outcome of an issue.
[23]
The State relied on Section 67 of Act 105 of 1997-the Criminal Law
Amendment Act The sentence for murder, in terms of Section
57, is
imprisonment for life. The Court a
quo,
as correctly submitted
by Mr Kgakgara, did not make any finding, regarding the presence of
substantial and compelling circumstances
or the absence thereof. It
nevertheless did not pass the sentence of imprisonment for life or 15
years imprisonment in respect
of robbery. One can only assume that
the Court a
quo
had in its mind, the presence of substantial
and compelling circumstances.
[24]
The question that needs to be answered is whether or not the
sentences in respect of the three counts are appropriate.
[25]
It was argued on behalf of the respondent that the appellant was not
remorseful. Mr Van Vuuren specifically said that the fact
that the
appellant regretted his actions and that he asked for forgiveness
could not be viewed as remorse as that was
"arguable".
Being “
arguable",
in my view, does not mean
that the appellant is not remorseful. It may well be so that the
appellant, indeed, was genuinely remorseful.
I do not think that
there is enough evidence to demonstrate that the appellant was not
remorseful. Besides, the appellant 'pleaded
guilty and this cannot be
ignored when sentence is passed. The behaviour of the appellant is
such that the Court needs to be very
cautious when sentencing him.
[26]
The Court a
quo
when granting leave to appeal against sentence
said:
“
I have had an opportunity to
look through the judgment again,
I am of the view that
another Court may arrive at a different sentence and accordingly
leave to appeal against sentence is granted
to the Full Bench of this
Division.
”
(my emphasis).
This
clearly shows that the Court a
quo,
simply by reason of the
severity of the sentence, at the very outset realised that the
sentence induced a sense of shock. The effective
sentence of 45
years, in my .view, is disturbingly inappropriate.
[27]
Having concluded that the Court a quo avoided passing the minimum
sentences possibly because it was satisfied that substantial
and
compelling circumstances existed the question which then comes to
mind is whether the sentences are appropriate.
[28]
Having regard to the fact that the appellant was in custody .for 4
years awaiting trial; the fact that he pleaded guilty and
apologised
to the Court, the family members of the deceased and the community;
the fact that the three offences arose from acts
of the same place
and date and that the offences are closely linked, as correctly
submitted by Mr Kgakgara, to mitigate the severity
of the cumulative
effect of the sentences, the Court a
quo
ought to have ordered
that the three sentences run .concurrently. Regard being had to the
facts of the case particularly what I
say in this paragraph, the
sentences In Counts 1 and 2 deserve to be tampered with.
[29]
The Court a
quo,
in its judgment on sentence, expressed the
wish to mitigate the harshness of the cumulative effect of the
sentences but, unfortunately
ordered that “
4 years of the
sentence
imposed in respect of Count 3 shall run concurrently
with the
sentence
imposed in respect .of count 2”.
This, in my view, did not help in any way as the effective
sentence remained disturbingly inappropriate. The sentences in
respect
of murder and rape deserve to be reduced. The appeal against
sentence should therefore be upheld.
ORDER
[30]
The following order is made:
1. The appeal against sentence is
upheld.
2. The sentence in Count 1 is set
aside and replaced as follows:
"The
accused is sentenced to 22 years imprisonment ".
3. The sentence In Count 2 is set
aside and replaced. as follows:
"The
accused is sentenced to 12 years imprisonment' '.
4. The sentence in Count 3 is
confirmed.
5. To mitigate the harshness of the
cumulative effect of the sentences, it is ordered that the sentences
in Counts 1, 2 and 3 shall
run concurrently. Effectively, the
appellant shall serve 22 years Imprisonment.
6. The sentences are antedated to 21
September 2011, the date of sentence by the Court a
quo.
________________________
M.
W. MSIMEKI
JUDGE
OF THE HIGH COURT
I
agree,
________________________
A.
M. L. PHATUDI
JUDGE
OF THE HIGH COURT
I
agree,
_________________________
C.
P. RABIE
JUDGE
OF THE HIGH COURT
DATE
HEARD: 14 AUGUST 2015
DATE
OF JUDGMENT: 14- DECEMBER 2016
FOR
THE APPELANT: MR M. B. KGAGARA
FOR
THE RESPONDENT: ADV. M. J. VAN VUUREN