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[2015] ZANCHC 9
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Eland v S (CA & R 118/14) [2015] ZANCHC 9 (20 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division, Kimberley)
Case
No: CA & R 118/14
DATE:
20 MARCH 2015
In
the matter between:
BAZIL
ELAND
..........................................................................................................................
Applicant
v
THE
STATE
............................................................................................................................
Respondent
Coram:
Tlaletsi AJP et Phatshoane J
JUDGMENT
ON APPEAL
Heard:01/12/2014
Delivered:20/03/2015
Tlaletsi
AJP
[1]
The appellant appeared in the Regional
Court, Pofadder (before Mr View) on 29 August 2014 on three counts of
culpable homicide.
He pleaded guilty to the charges. He was found
guilty. For purposes of sentence the three charges were taken
together and he was
sentenced to 7 years imprisonment two years of
which were suspended for a period of five years on condition that he
is not found
guilty on a charge of culpable homicide in which the
negligent handling of a motor vehicle is an element of the offence
committed
during the period of suspension.
[2]
The appellant is appealing against his
sentence with leave of the court
a quo
.
The grounds upon which the appellant is challenging his sentence are
briefly that the Regional Magistrate erred by overemphasising
the
seriousness of the offence, interests of the community, paid little
or no regard to the appellant’s personal circumstances
and
further that he erred in not attaching sufficient weight to the
reports prepared by the social worker and the probation officer,
respectively.
[3]
The
factual matrix on which the appellant was convicted is contained in a
handwritten statement prepared by the appellant’s
legal
representative in terms of s 112(2) of the Criminal Procedure Act
[1]
which was admitted as Exhibit A at the trial. The contents were
accepted by the respondent. He admitted that he wrongfully
and
negligently caused the death of the deceased women. As to how
the motor collision happened the appellant stated that
he was driving
his Nissan Sentra G……. motor vehicle along the N14 road
from Springbok, following a BMW motor vehicle.
He set the motor
vehicle into a low gear in order to overtake the said BMW motor
vehicle. In the process he lost control of the
motor vehicle and the
two motor vehicles “rolled”.
[4]
The
appellant sustained head injuries and was admitted at a hospital
where he stayed for a period of a month for treatment for these
injuries. He was 29 years old, unmarried and had one minor child born
on 05 September 2007. He is making a monthly contribution
of
R750.00 towards maintenance of the child. He passed grade 12.
He studied for an audit qualification which he abandoned
after 18
Months due to lack of funds. He was previously employed at ABSA
Bank as a Teller. At the time of the trial,
he was no longer
employed having lost his employment because of his poor concentration
capacity as a result of the motor collusion
and the deaths he has
caused. The only previous conviction that the appellant had was the
contravention of s 4(b) of the Drugs
and Drug Trafficking Act
[2]
,
in that he was found in possession of dagga on 11 July 2009. The
appellant was also paying a monthly instalment in the amount
of
R200-00 for the BMW repair costs. He had also approached the families
of the deceased women to show his remorse and regret for
the grief he
had caused them. The two families had indicated that they had
forgiven him.
[5]
It was common course between the appellant
and the respondent that the concentration of alcohol on a specimen of
his blood was measured
at 0.01 grams per 100 millilitres at the time
of the collusion. Furthermore, the report on the reconstruction of
the accident prepared
for the respondent indicated that the
appellant’s motor vehicle was travelling at the speed of about
112 km/h and the BMW
at 108 km/h. The maximum speed limit on this
stretch of the road is 120 km/h. There was no evidence concerning the
condition of
the two motor vehicles’ mechanical breaking
systems.
[6]
After
the appellant’s legal representative addressed the court
a
quo
in mitigation of sentence, the respondent, (in an unusual manner)
[3]
,
tendered the evidence of Mr B D Schmidt, the father of two of the
deceased women. He indicated that he was also testifying on
behalf of
the family of the victim on their request. He testified that it was
the feeling of the two families that since the appellant
reached out
to them and apologised for what he did, that he asked for
forgiveness, and further that he acknowledged that he was
the cause
of the fatal collusion, it brought a lot of comfort and relieved them
of the dark cloud that hung over their heads and
the heavy burden
that was on their shoulders. They indeed appreciated that what he did
showed that he was man enough to accept
his deeds. He mentioned
further that although it was not for them to decide on the type of
sentence to be imposed, they held the
view that since he was a young
man who had shown remorse, he deserved to be given another chance in
life. He added that since he
was already carrying the heavy burden on
his conscience for life, that he had lost his employment and has a
child to maintain,
it would not be appropriate for him to receive a
custodial sentence.
[7]
In response to questions by the court the
witness testified that the two women were his only children. They
were lovely and always
friendly.
[8]
The Regional Magistrate called Edna Irene
Cloete, the mother of the other victim, who had been in Court. She
testified that the
deceased was 18 years old and a first year
Financial Management student at a Technicon. She has two children, a
son and a daughter
aged 35 and 33 years, respectively. She mentioned
that the deceased was a lovely and very friendly child. When asked
how she felt
about her loss, she replied that it was still difficult
for them, but also felt sorry for the appellant. She mentioned that
what
happened to him could have happened to their son as well and
they would also have expected that he be forgiven. She testified that
although she does not know the kind of person the appellant is,
because he reached out to them and expressed his feelings and asked
for forgiveness, he did not deserve harsh punishment. She described
him as a person already living in a prison of his conscience
and felt
that he should not be imprisoned.
[9]
After the evidence of the two witnesses the
respondent’s representative addressed the court in regard to
sentence. He indicated
that he abided the request made by the
victims’ parents and agreed with the appellant’s counsel
that he deserved to
be given a second chance and not be sentenced to
direct imprisonment. In an unprecedented move, the Regional
Magistrate requested
the appellant to stand up and indicated that
since he did not testify there were certain questions that he would
like to ask him
directly unless there was any objection or problems
in doing so. The appellant’s representatives replied that he
had no objection.
After this response the Regional Magistrate
addressed the appellant at length as follows:
“
Hof:
Goed so. Mnr Eland, dit is wat die ouers sê. Die Schmidt
ouers sê vir my nee, hulle sal nie graag wil hê
u moet
tronk toe gaan nie en die Cloete moeder sê vir my nee, hulle
wil nie graag hê nie want hulle het jou vergewe.
Die
vergiffenis wat u gaan soek het, die het u gekry, nê?
Maar kom ek wees eerlik met jou, ek oorweeg om jou direck
tronk toe
te stuur om die volgende redes, kom ek sê vir u. Dit is
deel van my hier in my kop in. Die rede is onder
andere, hier was
drie jong meisiekinders soos uself weet wat hulle lewens verloor het
in die fleur van hulle jeug. Hulle
was studente, klaar
afgestudeer, 18, 19 and enetjie is 13 jaar oud. Een ouerpaar
die hele kinders wat hulle het, die twee
wat hulle het die het hulle
verloor, al daardie aspekte omdat u nalatiglik was
.
Dit blyk vir my
te wees u het nie judgment gehad toe u die ander kar nader nie.
Dit lyk my wat het hier gebeur, reg?
Nou sê u nou vir my
vandag, die wat hulle vir my sê dit is hulle gevoel. Dit
hof moet aan die einde van die dag
moet ek `n gebalanseerde vonnis
maak. Ek moet gaan kyk na u. Ek moet gaan kyk hoe voel
die slagoffers se ouers.
Ek moet gaan kyk hoe voel die
gemeenskap daarbuite en dan moet ek gaan kyk wat is in belang van
goeie regspleging.
So
ek kan nie toelaat dat die ouers vir my kom voorskryf wat hier moet
gedoen word nie en nog minder die gemeenskap
.
Dit moet `n objektiewe vonnis wees en dit is waarom ek nou vir u ook
`n kans gee, want hulle het hulle sê kom sê.
Mnr
Conzalis het namens u ook gepraat.
Die
verslae het ook names u gepraat, maar u het nog niks vir my ges
ê
nie en dit sit in my kop. Hoekom moet ek u nie tronk to stuur
nie, meneer
. Enige mens
gaan nadat so iets gebeur dan sal hy mos nou geskok wees. Hy
sal nou geskrik wees want hy besef nou, haai
ek kan nou tronk toe
gaan nou, verstaan u. Enige mens gaan daarna so voel want die
reliteit is mos nou daar. Dan sien
ek hier in die verslag van
die maatskaplike verslae sê u blyk nie `n persoon te wees wat
wil in die tronk wees nie.
Wil in die tronk sê nie vir my
u moet nie gaan nie. Wie wil in die tronk wees om mee te begin,
nè? So
het ek nou vir u `n goeie aanduiding gegee wat ek
nou vir u vra.
U het nou
die kans om my toe te spreek en my te sê hoekom moet ek jou nie
tronk toe stuur nie, u het drie jongmense se lewens
weggevat
.
Conzalis gevra, dit is u keuse.
As
u voel u wil nie vir my antwoord nie, want u antwoord sommer nou van
die bank af, dan is dit ook oukei, dit is u keuse, nè
.
Beskuldigde:
Dit is vir my moelik om te sê ek weet nie so reg wat om te sê
nie. Wat ek kan sê is ek
is by die mense, hulle vind dit
om, dink om my te vergewe.
Hof:
Nie hulle dink nie, hulle het jou klaar
vergewe, ja?
Beskuldigde:
Volgens my sal ek my seker nooit kan vergewe wat gebeur het nie.
Soos u sê dit was … (tussenbei).
Hof:
Ek kan nie hoor nie, meneer. Sê u:
volgens my sal ek myself nie kan ooit vergewe vir wat gebeur het nie?
Beskuldigde:
Ja, ja.
Hof:
So jy kan jouself nie vergewe vir dit wat jy
aan hulle gedoen het nie, is dit was u sê.
Beskuldigde:
Ja.
Hof:
Is dit wat u sê. Ja?
Beskuldigde:
Ek sê dit was nie eintlik my doel of
… (onduidelik) dat die ongeluk moes gebeur het nie.
Hof
:
Nee, u is skuldig bevind aan
nalatighied, nè
?
Beskuldigde:
(Geen hoorbare antwoord).
Hof:
Ons is klaar verby daardie aspekte. Dit
gaan nou net oor hoe jou toekoms lyk en ek moet daardie besluit
neem. Dit is
hoekom ek jou `n kans gee, Mnr Eland.
Ek
gee jou `n kans want soos ek u sê dit sit in my kop in, dit sit
ook in my kop om dit te doen
.
Dit is hoekom u kan uself nie vergewe nie, is daar iets anders wat u
nog wil sê?
Beskuldigde:
(Geen antwoord).” [Emphasis provided]
[10]
The Regional Magistrate continued by asking
the appellant whether he had received counselling as recommended by
the social workers,
whether he was employed, whether the appellant
had siblings and whether he had any promise for prospective
employment. Having
obtained this information he continued thus:
“
HOF
:
So as die hof jou vandag tronk
toe stuur dan sal ek nie jou werk kanse belemer nie, is dit reg
?
BESKULDIGDE
:
(Geen antwoord)
HOF:
As ek jou tronk toe stuur sal dit nie jou ma
belemer nie, want sy werk en jou sustertjie en jou ma is saam, is ek
reg
?
BESKULDIGDE
:
(Geen antwoord)
HOF
:
En as ek jou tronk toe stuur dan kan jy berading in die tronk ook
gaan kry want daar is beraders binne – in die tronk
want
u het nog nie een keer eens begin om te gaan hulp soek nie. Dit is
die vrae wat ek nou vir u gevra het
.
Ek probeer nou kyk hoekom kan u nie gevangenis toe gaan nie
.
Al die goed wat ek u gevra het,
as ek jou gevangenis toe stuur, dan sal dit jou glad nie benadeel
nie, dit sal jou eerder bevoordeel.
Verstaan u, Mnr Eland?
BESKULDIGDE:
Ja.
HOF
:
Oukei” [Emphasis provided]
[11]
The Regional Magistrate asked the appellant whether he had anything
to add to what has been said. He mentioned that he had
a child to
maintain and loans to pay. The Regional Magistrate remarked that he
could not be cross-examined because he did not testify.
His legal
representative was given another opportunity to address the court and
he reiterated his submission that the appellant
not be sentenced to
direct imprisonment.
[12]
In addition to the reports compiled by the Social Worker on the
impact of the offence on the appellant as well as the victims’
families, the court
a quo
ordered and obtained a report by the Correctional Probation Officer.
The recommendation by the Probation Officer was that the appellant
be
sentenced to correctional supervision in terms of section 276 (1) (i)
of the Criminal Procedure Act. Direct imprisonment was
recommended as
a second option. The appellant’s counsel was once more given
an opportunity to address the court in
mitigation of sentence and
took this opportunity by addressing the court at length, pleading
that the appellant not be sentenced
to direct imprisonment.
[13]
In his reasons for sentence the Court
a
quo
referred to the appellant’s
personal circumstances, the offence itself as well as the interests
of the society. The court
a quo
was satisfied that the appellant was indeed remorseful and that he
did not plead guilty because the State case against him was
strong
and as such he stood no chance but to plead guilty. The court
a
quo
remarked further that:
“
Gaan
kyk ons na hierdie spesifiekte geval, sedert 8 Augustus, sedert die
dat toe daar betoog is vir vonnis, was dit vir my
alreeds moelik
gewees op daardie stadium om u vonnis op te lê en
dit
is waarom ek vir u gesê het in Pofader, kom ek sê vir u
ek oorweg ook dierkte gevangenisstraf. Dit was nie
op daardie
stadium gewees om vir u te sê ek het klaar daardie besluit
geneem nie. Ek het toe nie ‘n besluit geneem
nie
.
Ek wou gehoor het wat sê u as beskuldigde vir my van die
beskuldigdebank af as ek sekere vrae aan u vra. My rede daarvoor
was,
soos hulle sal sê,
ek het
gekyk of ek die magic words kan kry vanaf die beskuldigde self, nie
vanaf sy prokureur nie, nie wat hy vir sy sê of
wat die
prokureur vir my kom sê nie, kom ek hoor dit uit sy mond uit
self.
U
het toe vir my die magic words gegee. Ek is baie jammer ek het ‘n
kind, ek wou dit nooit gehad het, het u gesê, daar
moes nie ‘n
dood gewees het nie. Maar daardie berouvolnis van u het weer
deurgeskemer uit die vrae wat ek aan u gestel het
en dit is van die
redes hoekom ek dan persone somtyds direk vra wat is sy
gevoel
.” [Emphasis
provided]
[14] The court
a
quo
emphsised (repeatedly) that a motor vehicle is an extremely
dangerous weapon that a person can handle and for that reason one
requires
to be tested before being licenced to handle it. That the
manner in which the appellant handled “
this dangerous weapon
is extremely aggravating because it resulted in the death of three
people”
. He remarked that the sentence to be imposed
should deter other people who handle “
dangerous weapons
”
like motor vehicles from acting negligently; that it is not for other
people, particularly the parents of the deceased as
well as the
social workers and correctional officers, to prescribe to the court
what sentence to impose. He concluded that a non-custodial
sentence
will only cater for the appellant’s personal circumstances and
not cater for the seriousness of the offence and
the interest of the
community and that only a sentence of direct imprisonment would in
the court
a quo’s
view be fair and justifiable.
[15]
In this Court counsel for the appellant contended that the court
a
quo
misdirected itself by
overemphasising the seriousness of the offence as well as the
interest of the community and failed to attach
sufficient weight to
the appellant’s favourable personal circumstances and further
that the sentence imposed is shockingly
inappropriate, alternatively,
is so unreasonable that a Court acting reasonably would not have
imposed it and warrants interference
by this Court.
[16]
It is a trite principle of our law that an appellate Court is not
free to interfere with a sentence imposed by a trial Court
unless it
is satisfied that the trial Court committed a material misdirection.
The appellate Court may also in the absence of a
material
misdirection be justified to interfere with sentence if the disparity
between the sentence of the trial Court and the
sentence which the
appellate Court would have imposed had it been the trial Court is so
marked that it can be said to be shocking,
startling or disturbingly
inappropriate.
[4]
[17]
There is no doubt in my mind that culpable homicide is a serious
offence. However, it is important to take into account the
circumstances in which it was committed. In
S
v Naidoo and others
[5]
the Supreme Court of Appeal (the SCA) recognised that culpable
homicide may be committed across a wide spectrum of circumstances:
that at one end is the case where a momentary lapse in concentration
on the task at hand has a tragic result, like in this case
where
three lives have been lost; neither the lapse nor the failure to
foresee the consequences thereof is deliberate. The SCA
held that
sentencing fairly and appropriately in such a case is one of the
law’s most difficult tasks because among others,
balancing the
need for a sentence that, on the one hand , will not appear to rate
the loss of life with all the attendant trauma
to those to whom the
deceased was near and dear as not too serious against, on the other,
the need to calibrate the degree to which
the accused’s conduct
deviated from the standard of care expected of a reasonable
person and, if it is found to be
slight, also to reflect that
adequately in the sentence to be imposed, is inherently difficult.
The outcome will not satisfy those
close to the accused and those
close to the deceased at the same time since the sentence would be
perceived to be either too lenient
or too harsh depending on the side
one views it. That however, the SCA held, does not absolve the Court
from its duty to strive
as best as it can to achieve a proper balance
between those objectives.
[18] At the other
end of the culpable homicide spectrum, the SCA held, is the type of
cases where the accused has deliberately assaulted
the deceased but
has not been convicted of murder because the State has failed to
prove beyond reasonable doubt that death was
actually foreseen as a
reasonable possible consequence of the assault. In such a case
dolus
in the form of deliberate attack upon a person’s bodily
integrity which was intended to harm has resulted in the most
irremediable
harm of all, namely, death. The SCA concluded thus:
”
Few
would quibble at the justness of substantial custodial sentences for
that type of culpable homicide. But even within that class
of cases
there are distinctions to be drawn. Was a weapon used? How obviously
potentially lethal was it? Was there provocation?
How great was the
negligence in failing to foresee that death might result?
”
[19]
In this case the Regional Magistrate was correct in taking into
account the fact that the negligent driving of the motor vehicle
resulted in the loss of three lives. However, the Regional Magistrate
was also obliged to take into account what the Appellate
Division
authoritatively stated in
S
v Nxumalo
:
[6]
“
It
seems to me that in determining an appropriate sentence in such cases
the basic criterion to which a court must have regard is
the degree
of culpability or blameworthiness exhibited by the accused in
committing the negligent act. Relevant to such culpability
and
blameworthiness would be the extent of the accused’s deviation
from the norms of reasonable conduct in the circumstances
and the
foreseeability of the accused’s negligence. At the same time
the actual consequences of the accused’s negligence
cannot be
disregarded. If they have been serious and particularly if the
accused’s negligence has resulted in serious injury
to others
or loss of life, such consequence will almost inevitably constitute
an aggravating factor, warranting a more severe sentence
than might
otherwise have been imposed. It is here that the deterrent purpose in
sentencing comes to the fore. Nevertheless, this
factor, though
relevant and important, should not be overemphasised or be allowed to
obscure the true nature and extent of the
accused’s
culpability. As always in cases of sentencing, where different and
sometimes warring factors come into play, it
is necessary to strike a
balance which will do justice to both the accused himself and the
interest of the society
.”
[20]
It is important to note that the appellant’s culpability which
formed the factual matrix for his conviction should only
be as
contained in his statement in terms of sec 112 (2) of the Act as well
as any clarification made by the appellant and/or his
counsel on his
behalf which were all accepted by the State before and up to the
moment the court a quo arrived at the verdict
[7]
.
In that statement the appellant only stated that he tried to overtake
the BMW motor vehicle. In the process he engaged his motor
vehicle to
a lower gear, lost control of it and collided with the BMW motor
vehicle and both motor vehicles “rolled”.
In response to
questions by the Regional Magistrate his legal representative
explained that in the process of passing the motor
vehicle he lost
control of his vehicle and it turned and collided with the BMW on the
right rear side.
[21]
The court
a quo
did not confine itself to the factual matrix which formed the basis
for the conviction when considering the culpability of the
appellant
for the purpose of sentence. In its reasons for sentence the court
a
quo
stated that it regarded the manner
in which the crime was committed as extremely aggravating in that the
appellant drove his motor
vehicle so close to the back of the other
motor vehicle and thereafter decided to overtake it; that he failed
to keep a proper
look-out and proper distance as he was taught and
trained to do when he obtained his driver’s licence and as such
killed
people; that he overtook the BMW motor vehicle when it was
inopportune to do so. All these factual details found to be
aggravating
were not part of the factual matrix upon which the
appellant was convicted. In addition there was neither an admission
by the appellant
nor evidence tendered to suggest that it was
inappropriate or dangerous for the appellant to overtake the BMW
motor vehicle. By
taking these matters as aggravating in the
determination of sentence the Regional Magistrate committed a
material misdirection
which played a huge role in the determination
of sentence that was ultimately imposed.
[22]
It is in my view not unreasonable for one to conclude that the court
a
quo
did not exhibit a mind open to persuasion in the determination of an
appropriate sentence. It is abundantly clear from the record,
despite
a remark by the regional magistrate that he had not yet decided on
the type of sentence to be imposed when the court sat
in Pofadder,
that he had in fact already formed a view that the appellant had to
undergo a term of direct imprisonment. He in fact
called upon the
appellant to give him reasons why he should not be sentenced to
direct imprisonment. Although the Court is permitted
to adopt an
inquisitorial and active role in the process of gathering information
or evidence for the purpose of determining an
appropriate sentence,
such role must be limited to procedures which are “
fair
in terms of common-law rules and principles, statutory provisions and
constitutional requirements”
.
[8]
In this case the Regional Magistrate wrongly disregarded the
right of the appellant and his counsel to present the mitigating
factors as they deem appropriate. They had elected to conduct
their case by addressing the court from the bar in mitigation
of
sentence. However, this approach did not go well with the Regional
Magistrate who demanded that the appellant should respond
directly to
the questions he wanted to ask in order to get what he called the
“
magic
words
”
from him personally. This conduct of the presiding officer seems to
be a common occurrence because he says that this is
his preferred
manner of dealing with the accused persons during the sentencing
proceedings. It is impermissible that a presiding
officer be
addressed by an accused who is legally represented. See:
S
v Maasdorp
[9]
.
Such conduct in my view is a material irregularity on the part of the
Regional Magistrate. It cannot be a justification to say
that the
appellant and his legal representative did not object. They
were left with no option but to allow the Regional Magistrate
to do
what he wanted to do since the appellant was already alerted that he
is facing a strong possibility of imprisonment.
[23]
It is not a duty of a presiding officer to preach to the accused
person during the course of the trial. This Court has on a
previous
occasion warned the Regional Magistrate to desist from this conduct.
See generally
S
v Thenga
.
[10]
[24]
The learned Regional Magistrate, in my view, overemphasised the
seriousness of the offence by repeatedly remarking that three
lives
including that of what he referred to as “ ‘
n
laatlammetjie
” had been lost;
that the appellant had an extremely dangerous weapon in his
possession which he handled in an extremely negligent
manner; that
the sentence to be imposed should deter other people who handle
extremely dangerous weapons like motor vehicles as
the appellant had
done; that the sentence should also deter the appellant and teach him
not to handle the dangerous weapon as he
did, in the future. His
remark that he would not allow the public, the parents of the
victims, the social workers as well as probation
officers to
prescribe to him, as a court, what type of sentences should be
imposed is further support of the view that the learned
Regional
Magistrate did not exhibit a mind open to persuasion. It is correct
that the reports are not binding and are mere recommendations
to the
Courts in the determination of an appropriate sentence. However, they
deserve to be accorded serious consideration and weight
especially in
that they are prepared by experts in their respective fields.
[25]
It is a fundamental principle of our law that in the determination of
an appropriate sentence a court should strive to strike
a judicious
counterbalance between the elements relevant to sentencing to ensure
that one element is not unduly accentuated at
the expense of, and to
the exclusion of other elements. This judicious counterbalance should
be evident in the proceedings, the
reasoning process as well as the
outcome of the sentencing proceedings. It should, in my view, be
clear that the sentencing court
did apply its mind and had not paid
lip service to all the elements relevant to sentencing. The
ipse
dixit
by the Magistrate that all
these elements have been considered and taken into account without
any justification for that remark
being evident in the process
adopted and in the outcome or the result, is in my view, not
sufficient. The sentence arrived at should
somehow show that factors
relevant to sentence in a particular set of circumstances have indeed
been taken into account.
[26]
It seems that the Regional Magistrate approached the sentencing
proceedings on the basis that direct imprisonment is a prescribed
sentence in a case of culpable homicide which resulted in the death
of three people. To this end he eliminated all other forms
of
punishment that could possibly be appropriate.
[27]
Deterrence is an important factor to be taken into account in the
determination of an appropriate sentence. However, it would
also be
unfair to destroy the accused on the altar of general deterrence and
retribution in cases not deserving such treatment.
The following
authoritative view by the majority of the Court in
S
v RO
[11]
should always be taken into account:
“
Nevertheless,
in sentencing, individualisation, and not collective responsibility
for the prevalence of serious crime, remains the
court’s
primary focus. While there is no misplaced sympathy in dealing with
offenders, one should never divorce determination
of the appropriate
punishment from the quality of the human material, nor the reasons
for its frailty. Even here mercy can find
a place in almost all
cases
.”
[28]
Previous cases in which the courts have sentenced offenders for
culpable homicide involving the driving of a motor vehicle
vary
according to the degree of culpability. Some have aggravating factors
such as driving under the influence of alcohol, disobeying
road
traffic signs, overtaking contrary to the road markings and in
dangerous circumstances, etc. Each case has been decided according
to
its unique circumstances. Having regard to such cases, I am of the
view that the sentence imposed by the court
a
quo
in casu is excessive to the extent
that it induces a sense of shock and warrant interference by this
Court.
[29]
In casu
,
both counsel were in agreement that should this Court find in favour
of interfering with the sentence of the court
a
quo
, it is in as good a position to
impose sentence as the trial court since all the material facts are
fully before us. It would also
serve no meaningful purpose to refer
the matter back to the trial court for redetermination of sentence
given the approach already
adopted by that court. The following
factors are relevant in the determination of an appropriate sentence;
Regarding
the appellant:
a)
he is a first offender for this type of
offence;
b)
he pleaded guilty which has been accepted
as a true sign of remorse;
c)
he was not under the influence of alcohol
at the time of the collision;
d)
there is no evidence that his negligence
was gross as was the position in other cases. He lost control of his
motor vehicle whilst
in the process of overtaking another motor
vehicle;
e)
he reached out to the families of the
victims and they have forgiven him;
f)
he is a productive member of society who,
given a chance, would discharge his obligations to his child;
g)
it is clear from the social worker and
probation officers’ reports that he is capable of being
rehabilitated;
h)
there is no indication that he would repeat
this type of offence;
The
offence:
a)
the offence is serious in that three lives
have been lost.
b)
it is prevalent in the Republic.
c)
Road accidents in general are straining in
the economy of this country.
d)
there is no evidence that the traffic signs
and rules were disregarded.
The
interests of the society and the victims’ families:
Although
there is no evidence of public outcry about the appellants’
negligent conduct and its consequences, it would be inappropriate
not
to conclude that his actions would not be countenanced by the society
and that the society would expect from the Court to impose
a sentence
that reflects its rejection of the appellant’s conduct. Failure
to do so would result in loss of confidence in
the judicial system.
This incident, no doubt, had a devastating effect on the two
families. The one family lost two of its only
children, and the other
lost a daughter. The two families had to go through a difficult time
and understandably they will never
forget what this incident caused
them. They have however forgiven the appellant who has shown and
expressed his remorse to them.
The magnitude of the tragedy
resulting from negligence should not be allowed to obscure the true
nature of a crime which
is that of negligence.
[12]
The two families are at peace and have accepted what has happened and
that nothing would undo what has happened to them. The other
parent
was even not prepared to testify on the sentence to be imposed and
she only testified because she was called by the Regional
Magistrate
to testify.
[30]
The court
a quo
was correct in taking the three counts of culpable homicide together
for purposes of sentence. The same approach will be adopted
in this
Court. A report by the probation officer prepared in terms of sec 276
(1) (a) of the Act requested by the court
a
quo
recommends as a first option a
sentence of correctional supervision in terms of sec 276 (1 ) (i) of
the Act and a sentence of direct
imprisonment as an alternative
sentence. In my view a sentence of correctional supervision in terms
of sec 276(1)(i) would strike
a balance between the appellant’s
personal circumstance, the interests of victims’ families
and the society and
the seriousness of the offence.
[31] In the result
the following order is made:
The
appeal against sentence succeeds and the sentence imposed by the
court
a quo
is set aside and replaced with the following sentence:
“
The
appellant is sentenced to three (3) years imprisonment in terms of
section 276(1)(i) of the Criminal Procedure Act 51 of1977”
.
L P TLALETSI
ACTING JUDGE
PRESIDENT
High Court of
South Africa
Northern Cape
Division
I
concur.
V M PHATSHOANE
JUDGE
High Court of
South Africa
Northern Cape
Division
On
behalf of the Applicant
:
Adv.
A. D Olivier
(Fletcher’s
Attorneys)
On
behalf of the Respondent:
Adv. T
Kelaotswe
(Director
Public Prosecutions)
[1]
Act 51 of 1977
[2]
Act,
140
of 1992,
[3]
It is unusual because the practice is to allow all the parties to
tender oral evidence first if they choose to do so and to deal
with
all the issues raised in their address at once thereby avoid
piecemeal addresses.
[4]
S v Malgas
2001 (1) SACR 469
(SCA) at 478C-H.
[5]
2003 (1) SACR 347
(SCA) at para 45 -46.
[6]
1982 (3) SA 856
(AD) at 861G-862A:
S
v Humphreys
2013 (2) SACR 1
(SCA) para [22]
[7]
S
v Khumalo
2013 (1) SACR 96
(KZP),
S
v Thole
2012 (2) SACR 306
(FB);
S
v Van der Merwe &
others
2011 (2) SACR 509
(FB).
Du
Toit et al: Commentary on the Criminal Procedure Act
,
vol 2 at p28-6A. [Service 52, 2014].
[8]
See: Do Toit et al (supra) at p28-3; S v Mbhele
2008 (1) SACR 123
(N).
[9]
2008(2)
SACR 296 (NC) at 302 para [15].
[10]
2012(2)
SACR 628 (NCK).
[11]
2010 (2) SACR 248
(SCA) at para [41].
[12]
S V Naicker
1996 (2) SACR 557
(A).