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Draai v S (A60/2014) [2014] ZAFSHC 188 (11 November 2014)

80 Reportability
Criminal Law
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Brief Summary

Criminal Law — Sentencing — Life imprisonment — Appeal against sentence of life imprisonment for murder — Appellant contended trial court erred in finding no substantial and compelling circumstances for deviation from mandatory sentence — Appellant's personal circumstances considered but found insufficient to warrant lesser sentence — Trial court properly addressed principles of sentencing, including seriousness of the offence and appellant's prior convictions — Appeal dismissed and life sentence upheld.

Comprehensive Summary

Summary of Judgment


1. Introduction


This matter concerned a criminal appeal against sentence in the Free State High Court, Bloemfontein. The appellant, Daniel Ntsikelo Draai, appealed against a sentence of life imprisonment imposed following his conviction for murder in the Bloemfontein Regional Court. The respondent was the State.


The appeal was brought with leave of the trial court and was directed only against sentence, not against conviction. The central complaint on appeal was that the regional court allegedly erred in finding no substantial and compelling circumstances justifying a deviation from the prescribed sentence of life imprisonment, and that the sentence was asserted to be disproportionate and to overemphasise the seriousness of the offence and societal interests at the expense of the appellant’s personal circumstances.


The general subject-matter of the dispute was therefore the appellate standard for interference with sentence, and the proper application of the minimum-sentence framework (expressed in the judgment as the “mandatory” life sentence) to the appellant’s circumstances and the facts of the offence.


2. Material Facts


The material facts, as relied upon by the court, began on 9 February 2008 when the appellant met the deceased, the deceased’s brother, and two friends at a tavern. The appellant informed them of a traditional feast at his home celebrating his brother’s successful completion of initiation. The deceased and his companions attended the gathering, which was also attended by many others.


At some stage, the appellant’s mother bought a case of bottled beer. Conflict arose when multiple people started taking bottles from the case. The appellant reprimanded those taking beer and instructed them to return the bottles. The court recorded that everyone complied except the deceased, and this refusal led to a quarrel between the appellant and the deceased. Following the quarrel, the appellant left his home.


On the appellant’s return, he was accompanied by Brown, Mojanke, Stuart, and several others. Brown then quarrelled with the deceased and accused him, among other things, of recruiting initiates for a rival initiation school. The appellant’s mother intervened and asked those involved in the altercation to leave her home.


As the deceased and his companions were leaving, the appellant stabbed the deceased in the chest with a knife. The deceased was then surrounded by the appellant’s associates. Brown and Stuart also stabbed the deceased, Mojanke struck the deceased with the barrel of a firearm, and others chased the deceased’s brother and the two friends. The deceased sustained 16 stab wounds. The post-mortem findings recorded that the deceased died from multiple incisive wounds causing damage to blood vessels and the lung.


The judgment proceeded on the basis of these facts as the foundation for evaluating sentence. The court did not treat the appeal as turning on contested factual disputes about the incident, but rather on the sentencing implications flowing from the seriousness of the attack, the appellant’s role, and the presence or absence of circumstances justifying deviation from life imprisonment.


3. Legal Issues


The central legal questions were whether the appeal court was entitled to interfere with the sentence imposed by the trial court, and, if so, whether life imprisonment was inappropriate in the circumstances.


More particularly, the court was required to determine whether the regional court committed a material misdirection or irregularity in its sentencing discretion, or whether the sentence was disturbingly inappropriate. Closely linked to that inquiry was whether the appellant’s personal circumstances (including his youthfulness and other mitigating features relied upon) cumulatively amounted to substantial and compelling circumstances warranting a departure from the prescribed sentence.


The dispute primarily concerned the application of legal principles to fact (namely the appellate test for interference and the evaluation of substantial and compelling circumstances), together with an element of value judgment inherent in sentencing (balancing seriousness, the interests of society, and the offender’s personal circumstances).


4. Court’s Reasoning


The court approached the matter from the established principle that sentencing lies pre-eminently within the discretion of the trial court, and that an appellate court may interfere only where the sentence is vitiated by misdirection or irregularity, or where it is disturbingly inappropriate. In this regard, the court relied on the appellate sentencing approach articulated in the authorities it cited, emphasising that an appeal court may not simply substitute a sentence because it would have preferred a different outcome.


The court further reiterated that, in determining an appropriate sentence, a sentencing court must consider the triad and the objectives of punishment, including deterrence, prevention, rehabilitation, and retribution. The court noted that the record showed the trial court to have been mindful of the relevant circumstances, and to have properly considered these sentencing considerations.


In assessing whether substantial and compelling circumstances existed, the court accepted that the trial court took into account mitigating considerations relevant to the appellant. These included the appellant’s youthfulness at the time of the offence, his level of education, employment, income, and the existence of a dependant he supported. The appellate court was satisfied that these mitigating factors were considered.


However, the court held that the trial court also correctly found weighty aggravating features. These included the seriousness and prevalence of murder, the appellant’s previous conviction (an indecent assault with a suspended sentence and correctional supervision conditions), and, importantly, the appellant’s leading role in the events. The court highlighted that the appellant had enlisted the presence of those who later participated, was the first to stab the deceased, and continued the assault despite intervention. The offence occurred publicly and had an impact on witnesses and the deceased’s family, and the appellant was found to have shown a lack of remorse. The circumstances were also regarded as demonstrating a measure of premeditation.


A key aspect of the court’s reasoning was evaluative: it described the killing as vicious, senseless, and barbaric, reflecting a disregard for the sanctity of human life, and emphasised that such conduct was inconsistent with constitutional protections of life and dignity. While the appellant’s age was acknowledged as a significant mitigatory factor, the court reasoned that youthfulness did not outweigh the appellant’s prominent role in the attack and the fact that the offence was committed within a relatively short time after the imposition of a suspended sentence, indicating that the prior sentence did not deter further offending.


The court considered the argument relating to alcohol consumption, but treated it as a factor that had to be considered cumulatively with other mitigating features, and found that it did not detract from the circumstances militating against a departure from life imprisonment. In this context, the court endorsed the approach that in cases of serious crime, personal circumstances often recede in significance once it is clear that a substantial term of imprisonment is warranted, and it treated certain personal circumstances as being of limited weight in that setting.


Ultimately, the court concluded that what was shocking was not the sentence but the brutality and callousness of the offence. It held that the trial court’s conclusion—namely that the appellant’s personal circumstances did not constitute substantial and compelling circumstances—was justified, and that there was no basis for appellate interference.


5. Outcome and Relief


The appeal against sentence was dismissed. The High Court confirmed the sentence of life imprisonment imposed by the regional court.


The judgment, as recorded, did not make a separate costs order in relation to the appeal.


Cases Cited


S v Rabie 1975 (4) SA 875 (AD)


S v Salzwedel and Others 1999 (2) SACR 586 (SCA)


S v Malgas 2001 (1) SACR 469 (SCA)


R v Karg 1961 (1) SA 231 (A)


S v Banda 1991 (2) SACR 352 (BGD)


Director of Public Prosecutions, Kwazulu-Natal v Ngcobo and Others 2009 (2) SACR 361 (SCA)


S v Vilakazi 2009 (1) SACR 552 (SCA)


Legislation Cited


Constitution of the Republic of South Africa, 1996


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The High Court held that the regional court committed no material misdirection in sentencing the appellant to life imprisonment for murder. It held further that the appellant’s personal circumstances, even when considered cumulatively (including his youthfulness and the involvement of liquor), did not amount to substantial and compelling circumstances justifying deviation from the prescribed sentence. The sentence was not disturbingly inappropriate, and the appeal court therefore had no basis to interfere. The appeal against sentence was dismissed and the sentence of life imprisonment confirmed.


LEGAL PRINCIPLES


The judgment applied the principle that punishment is primarily within the discretion of the trial court, and an appellate court may interfere only where there is a material misdirection, irregularity, or where the sentence is disturbingly inappropriate or disproportionate to the offence.


The judgment applied the approach that sentencing must reflect the triad and the objectives of punishment, namely deterrence, prevention, rehabilitation, and retribution, while maintaining a balanced consideration of the seriousness of the offence, societal interests, and the offender’s personal circumstances.


In the context of serious violent crime, the judgment applied the principle that personal circumstances may carry reduced weight once a court is satisfied that a substantial term of imprisonment is justified, and that courts should avoid reliance on insubstantial considerations when assessing whether a departure from a prescribed severe sentence is warranted.


The judgment further applied the principle that youthfulness is a mitigating consideration but is not decisive where the offender played a leading role in a brutal killing, demonstrated a lack of remorse, and where aggravating factors substantially outweigh mitigation in the assessment of whether substantial and compelling circumstances exist.

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[2014] ZAFSHC 188
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Draai v S (A60/2014) [2014] ZAFSHC 188 (11 November 2014)

FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No.: A60/2014
In
the matter of:
DANIEL
NTSIKELO DRAAI
…..............................................................................................
Appellant
and
THE
STATE
…........................................................................................................................
Respondent
CORAM:
MOLEMELA, J
et
TSATSI, AJ
JUDGEMENT
BY:
MOLEMELA, J
HEARD
ON:
11 AUGUST 2014
DELIVERED
ON:
11 NOVEMBER 2014
[1]
This is an appeal against the sentence of life imprisonment imposed
on the appellant pursuant to his conviction by the Bloemfontein

Regional Court on a charge of murder.  The appeal is brought
with leave of the trial court and is directed against sentence
only.
[2]
The notice of appeal filed on behalf of the appellant reflects the
following grounds of appeal:-
(i) that the trial
court erred in finding that there were no substantial and compelling
circumstances warranting a deviation from
the mandatory life
imprisonment sentence;
(ii) that the life
imprisonment sentence imposed on the appellant is strikingly
inappropriate and induces a sense of shock;
(iii)
that the trial court over-emphasised the seriousness of the offence
as well as the interests of society at the expense of
the appellant’s
personal circumstances.
[3]
The facts that led to the appellant’s prosecution are as
follows.  On the 9
th
February 2008 the appellant met, the deceased, the deceased’s
brother and his two friends at a tavern.  The appellant
informed
them that there was a traditional feast at his home in celebration of
his brother’s successful completion of his
initiation.
The deceased and his three afore-mentioned companions ended up
attending the traditional ceremony, which was
apparently attended by
many other people.
[4]
At some point the appellant’s mother purchased a case of
bottled beer.  The trouble started when all and sundry started

grabbing bottles of beer from the case.  The appellant
reprimanded these people and instructed them to return the bottles

they had grabbed.  Everyone complied except the deceased.
The deceased’s refusal to return the bottle of beer
led to a
quarrel between the appellant and the deceased, after which the
appellant hurriedly left his home.
[5]
On his return, the appellant was in the company of one Brown,
Mojanke, Stuart and several other persons.  Brown started

quarrelling with the deceased,
inter
alia
accusing the deceased of
recruiting prospective initiates for the leader of a rival initiation
school.
[6]
The appellant’s mother intervened and asked all the people that
were involved in the altercation to leave her house. As
the deceased
and his companions were leaving the premises, the appellant stabbed
the deceased with a knife on the chest.
The deceased was then
surrounded by the appellant’s cohorts, with Brown and Stuart
also stabbing the deceased; Mojanke hit
the deceased with the barrel
of a gun while the rest of the group chased after the deceased’s
brother and his two friends.
The deceased sustained 16
stab-wounds.  The post mortem report revealed that the deceased
died from multiple incisive wounds
which caused damage to the blood
vessels and the lung.
[7]
It is trite law that the appeal court will only interfere with
sentence if it is of the opinion that it is vitiated by an
irregularity
or where the trial court misdirected itself.  In
S
v Rabie
1975 (4) SA 875
(AD) the
court stated as follows:-
“
It is
trite that, in every appeal against sentence 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’
The test under (b) is whether the sentence is vitiated by
irregularity or misdirection or is disturbingly inappropriate.”

In
S v Salzwedel
& others 1999(2) SACR 586 (SCA) at 591 H:
“
An
appeal court is 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
misdirections of a nature which shows that the trial court did not
exercise its discretion reasonably.”
[8]
In
S v Malgas
2001 (1) SACR 469
(SCA) at 478 Marais J remarked as follows:
“
A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it.
To do
so would be to usurp the sentencing discretion of the trial court.
Where material misdirection by the trial court vitiates
its exercise
of that discretion an appellate court is of course entitled to
consider the question of sentence afresh.”
[9]
In the assessment of an appropriate sentence, regard must be had,
inter alia
to the triad of sentence as well as the objectives of punishment,
namely deterrence, prevention, rehabilitation and retribution.

See
R v Karg
1961 (1) SA 231
(A) at 236A-B.
[10]
In the case of
S v Banda
1991 (2) SACR 352
(BGD), it was reiterated that court decisions must
promote respect for the law and must reflect the seriousness of the
offence
and provide just punishment for the offender while taking
into account the personal circumstances of the offender.
[11]
The conspectus of the record of the trial court’s proceedings
reveals that the trial court was mindful of all the circumstances
of
the case.  It properly considered the triad of sentence as well
as the afore-mentioned objectives of sentencing. I’m
satisfied
that it properly addressed itself to all the principles applicable to
sentencing.
[12]
In considering whether there were substantial and compelling
circumstances that warranted imposition of a lesser sentence the

trial court correctly considered the following mitigating factors:
that the deceased was 21 years old at the time of commission
of the
offence, that he had studied up to grade 10 level; that he was
employed, earning R1 600 per month; that he had a dependant
that
he was supporting.
[13]
The trial court also correctly considered the following factors to be
aggravating:  the seriousness of the offence and
its prevalence;
that the appellant was not a first offender as he had a previous
conviction of indecent assault which was suspended
for three years on
condition that he did not commit a similar offence and also on
condition that he underwent correctional supervision;
that the
appellant played a leading role in the commission of the offence in
that he was the one who enlisted the presence of the
people that
subsequently participated in the stabbing; he was in fact the first
one who stabbed the deceased and persisted with
the assault on the
deceased despite the intervention of the deceased’s brother.
The offence was committed in full view
of onlookers; the impact of
the offence on witnesses and on the deceased’s family, who had
at the time of the trial still
not yet come to terms with the
deceased’s death; the appellant’s lack of remorse.
Furthermore, the circumstances under
which the offence was committed
also reveal a measure of premeditation. It is clear that the
aggravating factors far outweigh mitigating
factors.
[14]
It is clear from the record that the deceased succumbed to fatal
injuries inflicted in a vicious attack. His killing was senseless
and
barbaric, constituting a flagrant disregard of the sanctity of human
life. The trial court aptly described the conduct of the
appellant
and his co-perpetrators as being similar to that of “lions in
the jungle, tearing and bludgeoning a buffalo calf
to death”.
They were only too happy to carry out this inhuman deed in broad
daylight and in full view of members of
the public.  No
civilised society should have to contend with such a deplorable state
of affairs when the right to life and
human dignity are expressly
protected by the Constitution.
[15]
Much was made about the age of the appellant at the time of
commission of the offence.  While this is indeed a strong

mitigating factor, it has to be taken into account that despite his
youthfulness, the appellant played a leading role in the commission

of the offence.  This incident was not his first brush with the
law and was in fact committed 18 months after imposition of
the
suspended sentence. The suspended sentence clearly failed to
discourage him from further participation in crime. On the contrary,

he went on to commit a more serious, heinous offence.   In
the case of
Director of Public
Prosecutions, Kwazulu-Natal v Ngcobo & Others
2009 (2) SACR 361
(SCA) the court set aside the 18 years imprisonment
sentence imposed on the appellants, whose ages ranged between 20 and
22 years,
and substituted that sentence with life imprisonment. The
court remarked as follows at par [26]:
“
Courts
are expected to dispense justice.  This kind of brutality is
regrettably too regularly a part of life in South Africa.

Courts are expected to send out clear messages that such behaviour
will be met with the full force and effect of the law.
The
legislature is concerned and so too should we be.”
[16]
The involvement of liquor in the commission of the offence must be
cumulatively considered with other mitigating factors. It
is not an
aspect that detracts from all the other circumstances of the case
that clearly militate against a departure from the
prescribed minimum
sentence.  It is apposite to refer to the case of
S
v Vilakazi
2009 (1) SACR 552
(SCA)
at 574 para [58] where the court stated as follows:
“
In
cases of serious crime the personal circumstances of the offender, by
themselves, will necessarily recede into the background.
Once
it becomes clear that the crime is deserving of a substantial period
of imprisonment the questions of whether the accused
is married or
single, whether he has 2 children or 3, whether or not he is in
employment, are in themselves largely immaterial
to what that period
should be, and those seem to me to be the kind of ‘flimsy’
grounds that Malgas said should be avoided.”
[17]
Having considered all the circumstances of the case I find that what
induces a sense of shock is not the sentence that was
imposed, as
argued by the appellant, but rather the brutality of the deed and the
callousness with which it was committed.
[18]
The authorities mentioned above all emphasize that courts should send
a clear message that violent crimes will not be tolerated.
I
align myself to that view. The sentences that we impose must ensure
that criminals and prospective criminals realise that the
murder of
one individual is one too many.
[19]
I am satisfied that the trial court correctly found that the
appellant’s personal circumstances, cumulatively viewed,
do not
constitute substantial and compelling circumstances that warrant
imposition of a lesser sentence than that of life imprisonment.

There is no justification for tampering with that finding and the
sentence that the trial court imposed.  It follows that
the
appeal has to fail.
[20]
In the result the following order is given:
1.
The appeal against sentence is dismissed
and the sentence of life imprisonment imposed by the trial court is
confirmed.
_________________
M.
B. MOLEMELA, J
I
concur.
______________
E.
K. TSATSI, AJ
On
behalf of the appellant:  Adv. J. S. Makhene
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On
behalf of the respondent:
Adv. K. G. Mashamaite
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN

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