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[2014] ZAFSHC 79
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Dail v S (A145/2012) [2014] ZAFSHC 79 (12 June 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No. : A145/2012
In
the matter between:-
MVULA
SAMUEL DAIL
….....................................................................................................
Appellant
and
THE
STATE
…........................................................................................................................
Respondent
CORAM:
RAMPAI, AJP
et
VAN
DER MERWE, J
et
MBHELE,
AJ
HEARD
ON:
2 JUNE 2014
JUDGMENT
BY:
RAMPAI, AJP
DELIVERED
ON:
12 JUNE 2014
[1]
This is an appeal against sentence only. The appellant was
sentenced to 20 years imprisonment on 12 September 2011 following
his
conviction on a charge of murder. He was aggrieved by the
sentence. He successfully applied for leave to appeal.
He
now comes to us on appeal with the leave of C.J. Musi, J granted on 1
June 2012. The respondent opposes the appeal.
[2]
The charge against the appellant was one of murder. The
respondent alleged that he murdered Ms Dilahloane Maria Ditsoatlise,
a woman 34 years of age at Bultfontein on 24 August 2010 by stabbing
her with a knife.
[3]
The appellant was tried by Mathebula, AJ in Bloemfontein. On 12
September 2011 he pleaded guilty to the charge.
He was legally
represented by Ms S. Kruger, a local public defender. Mr M.
Strauss appeared for the respondent. The
appellant was then
convicted on his plea.
[4]
On the same day a custodial sentence of 20 years imprisonment was
imposed on the appellant. He was aggrieved. He
later
applied for leave to appeal, which application was granted by C.J.
Musi, J seeing that Mathebula, AJ was no longer on the
bench.
[5]
The notice of appeal was filed on 7 June 2012 on behalf of the
appellant. His grounds of appeal were, among others:
5.1 that the court
a
quo
erred in that it did not find that substantial and compelling
circumstances existed to justify the imposition of a sentence less
than the prescribed minimum sentence –
vide
rule 2.1
notice of appeal;
5.2 that the court
a
quo
erred in that it failed to record its reasons for its
incremental deviation from the prescribed minimum sentence of 15
years for
a first offender in respect of the crime of murder –
vide
2.3 notice of appeal;
5.3
that the court
a quo
erred in that it failed to attach proper and due weight to the
cumulative extenuating factors of the appellant’s profile
as an
individual offender –
vide
2.2 notice of appeal.
[6]
The sentencing of an offender is first and foremost the prerogative
of the trial court –
S v
Giannoulis
1975 (4) SA 867
(A).
Sitting as we are in an appellate mode, we cannot, in the absence of
a material misdirection by the trial court, approach
the question of
sentence as if we were the trial court and then substitute the
original sentence with a different sentence of our
own simply because
we reckon it is more preferable than the one imposed by the trial
court –
S v Malgas
2001 (1) SACR 469
(A) at 478d – e.
[7]
Our judicial power to exercise appellate interference is limited and
for sound reasons. Where the original sentence imposed
by a
trial court is in all circumstances shockingly severe and thus
inappropriate, a court exercising appellate jurisdiction can
also
interfere with the sentencing discretion of a trial court –
S
v De Jager
1965 (2) SA 612
(A).
[8]
A court constituted, as we are, to exercise appellate jurisdiction,
is in essence called upon to oversee the fairness of the
proceedings
in the court
a quo
and to determine whether the ultimate outcome was underpinned by the
dictates of justice or not. We have to ensure that the
personal
circumstances of an aggrieved individual offender have been properly
taken into account and that his profile has been
evenly balanced
against the backdrop of the crime committed as well as the interest
of society offended. The delicate balancing
act demands careful
and objective measure of restraint. Great care has to be taken
in order to see to it that no cornerstone
of the triad is
overemphasised or underemphasised at the expense of another –
S
v Zinn
1969 (2) SA 537
(A).
[9]
On behalf of the appellant Ms Kruger submitted that the court
a
quo
committed material misdirection by
increasing the already severe prescribed minimum sentence of 15 years
imprisonment by an additional
five long more years without giving
reasons for such an adverse deviation. Accordingly counsel
submitted, on the strength
of the sharpening of the sentence, that we
have to interfere. She urged us to uphold the appeal on those
grounds.
[10]
Mr Strauss, counsel for the respondent, sharply differed. He
submitted that the provisions of section 51
Criminal Law Amendment
Act 105 of 1997
, as amended, provide that a minimum sentence of 15
years imprisonment in the case of a first murder offender permissive
and not
prohibitive. He stressed that such a sentence was and
remains a guideline which in no way limits the discretion of a trial
judge, in an appropriate case, to impose a sentence heavier than the
prescribed minimum sentence.
[11]
In developing that argument further, counsel contended that seeing
that the court
a quo
,
in any event, had correctly found that there were no substantial and
compelling circumstances in favour of the appellant to warrant
a
lighter sentence than the prescribed minimum sentence, it was
entitled to up the punishment to a level above the prescribed minimum
sentence as the trial judge did. He conceded that the sentence
of 20 years imprisonment was indeed a stiff punishment.
Nonetheless he submitted that it met the demands of the time.
He further submitted that the absence of reasons for the loaded
or
higher sentence in itself constituted no misdirection at all that
could trigger off any appellate interference. He urged
us to
dismiss the appeal and to confirm the sentence.
[12]
In considering the appeal we have to take into account the
appellant’s personal profile as an individual offender. The
first component of the triad concerns the profile of an individual
offender. The mitigating factors were:
·
that the appellant was about 37 years of
age at the time he committed the fatal crime;
·
that he was 38 years of age at the time he
was sentenced;
·
that he and the victim lived together as
husband and wife in accordance with the customary regime of marriage;
·
that he had two dependent minor children
who were eight years of age and three years of age;
·
that those children were in the custody and
care of his mother;
·
that his formal education came to an end
when he was in standard five;
·
that beyond such level he could not proceed
as a result of his learning difficulties;
·
that he was suffering from epilepsy;
·
that he was arrested on 24 August 2010; and
·
that he remained incarcerated until he was
sentenced on 12 September 2011.
[13]
On the other hand, in considering an appeal, we also have to take
into account the gravity of the crime committed. The second
component
of the triad concerns one dimension of the aggravating factors.
“
The
crimes which the appellant committed are extremely serious. We
live in a society which is becoming increasingly lawless...
Persons who perpetrate such crimes must be punished severely. Society
demands this and it is absolutely necessary that the message
go out
to the world that people who commit these sorts of crimes will be
dealt with severely.”
S
v Valley
1998 (1) SACR 417
(W) at
420B – D per Hoffman AJ.
[14]
In
S v Reay
1987 (1) SA 873
(A) at 877C Galgut AJA, said the following about the
gravity of a crime as an aggravating factor:
“
Where
a crime is prevalent a severe sentence may be justified in order that
it may act as a deterrent to others.”
No
crime can be more serious than murder. Family murders are
disturbingly not only on the increase in this province, but all
over
the country. More often than not male spouses are implicated.
[15]
Moreover we further have to take into account the interest of society
in considering sentence on appeal. The third component
of the triad
also concerns another dimension of aggravating factors.
[16]
The interest of society demands that offenders be deterrently
punished. The deterrent objective of sentencing is an element
of the sentencing process which needs to be seriously considered in
the interest of society. Our courts must be mindful that
when
offenders are lightly punished for serious offences, the respect
which society has for law and order would be undermined –
S
v Du Toit
1979 (3) SA 846
(A).
[17]
The following circumstances constituted aggravating factors in this
case:
·
The victim was a defenceless woman and the
appellant’s wife.
·
She was brutally attacked and knifed to
death in the comfort of her own family sanctuary.
·
The appellant inflicted 38 stab wounds on
the helpless woman.
·
The appellant had on a previous occasion
attacked and assaulted the victim.
·
The victim feared the appellant so much
that she even obtained a family violence interdict against him.
·
The appellant’s aggressive conduct
towards the victim seemed to have forced her to leave the common
home.
·
The appellant’s previous convictions
are indicative of his violent nature.
[18]
In the light of the aforegoing and on the strength of a comparative
analysis between the aggravating circumstances and the
mitigating
circumstances I am persuaded that the court
a
quo
correctly found that no substantial
and compelling circumstances existed in this matter to justify
decremental deviation from the
prescribed minimum sentence. The
mitigating factors were eclipsed by the aggravating factors. On
the facts, the finding
of the court
a
quo
that there were no circumstances
which substantially compelled downward deviation, was one which I
could not, on appeal, hold to
be wrong. I am not
persuaded that the cumulative impact of the personal circumstances of
the appellant including but
not limited to his personal profile, his
plea, his voluntarily surrender, the period of his incarceration or
his poor intellectual
capacity together could be considered as
substantial and compelling circumstances.
[19]
I am not persuaded that the failure of the trial judge to record
reasons that persuaded him to sharpen the punishment over
and above
the prescribed minimum sentence constituted a misdirection so
material as to justify appellate interference. Where
a judge,
in the exercise of his or her discretion, decrementally deviates from
the prescribed minimum sentence, he or she is required
to record his
reasons for such deviation. However, where a judge in the
exercise of his discretion deems it appropriate to
deviate from the
prescribed minimum sentence by imposing a sentence in excess of that
statutory margin he or she is not obliged
to give reasons. It
is perhaps desirable but certainly not peremptory to do so. I
would, therefore, refrain from concluding
that an omission to give
reasons in that context, constituted a material and appealable
misdirection. I found the argument
of Mr Strauss in this regard
persuasive.
[20]
Notwithstanding the vicious and brutal attack of the victim, the
appellant could not be properly described as a coldblooded
murderer
or an animal. Upon my reading of the judgment, the impression I
got was that it was this characterisation of the
appellant by the
trial court which impelled the trial judge to punish the appellant in
that way. In my view the punishment
of 20 years imprisonment
was retributively excessive.
[21]
What we do know about the appellant is that after this gruesome
murder of his wife, he surrendered himself to the police.
On
his appearance in the court
a
quo
he pleaded guilty. He could not go any further beyond standard
5 at school. It would seem that he was intellectually
impaired. He had a learning disability. We cannot tell
with certainty as to what adverse impact the ailment of epilepsy
had
on his learning ability or his ability to control his temperament.
But above all these factors, it must not be forgotten
that this
unfortunate incident was a crime of passion
criminis
passionale
. I think his brutal
actions were abnormal. The aggression he displayed by
repeatedly stabbing his spouse, as he did,
was probably a
manifestation of deep-seated emotional turmoil and hurt. It may
well be that his epileptic condition was implicated
in the brutal
force he unleashed on the victim.
[22]
Upon consideration of all these factors I am inclined to think that
the court
a quo
committed a material and appealable misdirection by overstepping the
mark of the prescribed minimum sentence to the extent of five
years
imprisonment. In view of that misdirection appellate
interference is warranted. In a case of premeditated murder
of
a wife, which was not the case here, the sentence ultimately imposed
on the guilty husband by the Appellate Division, now the
Supreme
Court of Appeal was 16 years imprisonment. See
S
v Di Blasi
1996 (1) SACR 1
(AD).
Having considered all the relevant factors, I am of the view that a
reduction of five years from the sentence imposed
would be a fitting
and appropriate punishment for the appellant for what he did.
[23] Accordingly I
make the following order:
23.1
The appeal succeeds.
23.2
The conviction stands.
23.3
The sentence of 20 years imprisonment imposed on the appellant is set
aside and it is substituted with one of 15 years
imprisonment
antedated to 12 September 2011.
_________________
M.
H. RAMPAI, AJP
I
agree.
________________________
C.
H. G. VAN DER MERWE, J
I
concur.
________________
N.
M. MBHELE, AJ
On
behalf of appellant: Ms S. Kruger
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of respondent: Mr M. Strauss
Instructed
by:
Director
Public Prosecutions
BLOEMFONTEIN