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Mololo v S (A284/2012) [2013] ZAFSHC 23 (7 March 2013)

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Criminal Law
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Brief Summary

Criminal Law — Sentencing — Appeal against sentence — Appellant convicted of murder and sentenced to 15 years imprisonment — Appellant argued trial court misdirected itself by not finding substantial and compelling circumstances for a lesser sentence — Court found mitigating factors, including first offender status, lack of premeditation, and personal circumstances, warranted deviation from minimum sentence — Sentence reduced to 10 years imprisonment.

Comprehensive Summary

Summary of Judgment


1. Introduction


The matter was an appeal against sentence only in the Free State High Court, Bloemfontein. The appellant, Mojalefa Macdonald Mololo, appealed against a sentence imposed following his conviction for murder. The respondent was the State.


The appellant had been tried and sentenced in the Regional Court, where he received 15 years’ imprisonment in terms of section 276(1)(b) of the Criminal Procedure Act 51 of 1977. The Regional Court held that no substantial and compelling circumstances existed to justify deviation from the prescribed minimum sentence regime.


Leave to appeal was refused by the trial court, but the appellant successfully petitioned and was granted leave on 18 October 2012 to appeal sentence only. The appeal was heard on 4 February 2013 and judgment was delivered on 7 March 2013.


The dispute concerned whether the trial court correctly applied the minimum sentence framework, specifically whether the appellant’s mitigating circumstances, considered cumulatively, constituted substantial and compelling circumstances justifying a lesser sentence than that prescribed by the relevant minimum sentence legislation.


2. Material Facts


The court relied on a relatively concise factual background to contextualise sentence. It was common cause that the appellant and the deceased became involved in an incident that culminated in the deceased being stabbed and dying from his injuries.


The triggering event, as summarised by the appeal court, was that the deceased expressed displeasure at the behaviour and attitude of a woman who had alighted from the appellant’s car. The deceased approached the appellant, who was seated in the driver’s seat, to register his displeasure. An altercation followed, during which blows were exchanged.


After the exchange, the appellant exited his vehicle, pursued the deceased, and stabbed him. The trial court found that the appellant inflicted two fatal stab wounds from the front, and that after the deceased turned to flee, the appellant stabbed him in the back. The appeal judgment treated these findings as the operative factual basis relevant to sentence.


In relation to the appellant’s personal circumstances (which were central to the sentencing enquiry), the appellant was 45 years old, married, and held a university degree in education. He had been employed for 21 years at the Department of Education’s office in Bloemfontein, earning approximately R10 000 per month. He maintained a 17-year-old daughter and also supported his sister’s two children by paying their university fees.


The appellant had a prior conviction for reckless and negligent driving, which the trial court did not take into account and effectively treated him as a first offender for purposes of sentence.


The trial court expressly accepted that the murder was not planned or premeditated, describing it as an unfortunate incident that should not have happened. The appeal court further recorded that the appellant relied on factors including provocation and the influence of intoxicating liquor, although the appeal ultimately turned on the proper weighting of mitigating features rather than a detailed reassessment of evidentiary disputes.


3. Legal Issues


The central question was whether, on the facts accepted for sentencing purposes, the trial court was correct in concluding that substantial and compelling circumstances were absent, thereby requiring imposition of the prescribed minimum sentence.


This issue was primarily one of the application of law to fact within the minimum sentencing framework. It required an evaluative assessment of whether the combination of the appellant’s personal circumstances and the contextual features of the offence, assessed cumulatively, justified a departure from the legislatively prescribed sentence in terms of section 51(3)(a) of the Criminal Law Amendment Act 105 of 1997 (as cited and discussed in the judgment).


A subsidiary issue was whether the trial court committed a misdirection in the sentencing process, particularly by failing to afford sufficient weight to mitigating considerations and by treating itself as bound to impose the minimum sentence without the required balanced assessment.


4. Court’s Reasoning


The court approached the appeal within the established principles governing interference on appeal against sentence, focusing on whether the trial court had misdirected itself or exercised its discretion improperly in applying the minimum sentencing regime.


The appeal court referred to the minimum sentence framework as articulated in S v Malgas 2001 (1) SACR 469 (SCA), emphasising that prescribed sentences are not to be departed from for “flimsy reasons”, and that speculative hypotheses, undue sympathy, or a general aversion to imprisonment do not constitute substantial and compelling circumstances. At the same time, Malgas was cited for the proposition that the legislation does not exclude, in advance, the range of traditional sentencing factors courts ordinarily consider; instead, those factors must be weighed to determine whether the cumulative impact is substantial and compelling.


The court noted that Malgas had been followed in S v Matyityi 2011 (1) SACR 40 (SCA), and also referred to S v Serabo 2002 (1) SACR 391 (E). The judgment further reiterated conventional sentencing aims (deterrent, preventive, reformative, and retributive) with reference to R v Swanepoel 1945 AD 444, and stressed the need for a balanced assessment that does not allow the seriousness of the offence to eclipse all other considerations, citing S v Rabie 1975 (4) SA 855 (A), S v Du Toit 1979 (3) SA 846 (A), and S v Khumalo [1984] ZASCA 30; 1984 (3) SA 327 (A). The judgment also referred to S v De Kock 1997 (2) SACR 171 (T) for the approach that the components of the Zinn triad must be weighed together, with weight depending on the circumstances and the purposes of punishment.


Against those principles, the appeal court identified a set of mitigating circumstances present on the record and treated them as materially relevant to the minimum-sentence enquiry. These included that the appellant was effectively a first offender, that the offence was not premeditated and was committed on the spur of the moment, and that the deceased had initiated the quarrel. The court also considered the appellant’s standing as a useful member of society in a responsible post, his position as a breadwinner supporting dependants, his having acted under provocation, and the impact of conviction and imprisonment on his prospects of re-employment in the educational field.


The appeal court then evaluated the trial court’s handling of those factors. It concluded from the sentencing record that the magistrate did not attach sufficient weight to the appellant’s mitigating features. The appeal judgment particularly highlighted the magistrate’s remarks about the appellant’s lack of remorse and attitude, together with the magistrate’s view that personal circumstances were not exceptional and that others appearing in court typically have similar circumstances. The appeal court treated this as indicative that the trial court did not properly engage with the particular circumstances of the case in the manner required.


A key step in the appeal court’s reasoning was its conclusion that the trial court did not adequately apply the triad of sentencing factors and, as a result, “felt itself bound” to apply the minimum sentence. The appeal court characterised this as a misdirection, which opened the door to interference on appeal.


Having found misdirection, the appeal court undertook its own cumulative assessment and held that the appellant’s mitigating circumstances, viewed together, amounted to substantial and compelling circumstances justifying deviation from the prescribed minimum sentence. The court accepted that imprisonment was appropriate given the seriousness of murder, but concluded that the minimum sentence imposed by the trial court was not justified on the properly weighted facts.


In addressing comparative authority, the court recorded reliance by the appellant on S v Maleka 2001 (2) SACR 366 (SCA), where a sentence for murder was reduced and partially suspended in circumstances involving a first offender, responsible employment, provocation, lack of premeditation, and adverse employment consequences. The appeal court did not replicate Maleka’s outcome as such, but treated the comparison as consistent with the relevance of such mitigating considerations in the sentencing enquiry.


5. Outcome and Relief


The appeal court upheld the appeal against sentence.


The sentence of 15 years’ imprisonment was set aside and replaced with a sentence of 10 years’ imprisonment. The substituted sentence was antedated to 11 April 2012, being the date on which the original sentence had been imposed.


The judgment, as reported, did not make a separate order on costs.


Cases Cited


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

S v Maleka 2001 (2) SACR 366 (SCA)

S v Matyityi 2011 (1) SACR 40 (SCA)

S v Serabo 2002 (1) SACR 391 (E)

R v Swanepoel 1945 AD 444

S v Rabie 1975 (4) SA 855 (A)

S v Du Toit 1979 (3) SA 846 (A)

S v Khumalo [1984] ZASCA 30; 1984 (3) SA 327 (A)

S v De Kock 1997 (2) SACR 171 (T)


Legislation Cited


Criminal Procedure Act 51 of 1977, section 276(1)(b)

Criminal Procedure Act 51 of 1977, section 274(1)

Criminal Law Amendment Act 105 of 1997, section 51(3)(a)


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The High Court held that the trial court misdirected itself in sentencing by failing to accord sufficient weight to the appellant’s mitigating circumstances and by effectively treating itself as bound to impose the prescribed minimum sentence without the necessary balanced assessment.


The High Court further held that the mitigating factors present, considered cumulatively, constituted substantial and compelling circumstances justifying deviation from the prescribed minimum sentence, and that the appropriate substituted sentence was 10 years’ imprisonment, antedated to the original sentencing date.


LEGAL PRINCIPLES


The prescribed minimum sentences under the minimum sentencing regime are not to be departed from for insubstantial reasons; however, the sentencing court must still consider the traditional factors relevant to sentencing and determine whether, cumulatively, they amount to substantial and compelling circumstances justifying a lesser sentence, as articulated in S v Malgas 2001 (1) SACR 469 (SCA) and followed in later authority including S v Matyityi 2011 (1) SACR 40 (SCA).


Sentencing involves a balanced consideration of the purposes of punishment and the relevant sentencing factors, including the crime, the offender, and the interests of society (the Zinn triad), and a court must avoid allowing the seriousness of an offence to overwhelm all other relevant considerations. A failure to conduct this balanced assessment may constitute a misdirection permitting appellate interference with sentence.


Where a sentencing court misdirects itself in the application of the minimum sentence framework, an appeal court may interfere and impose a sentence it considers appropriate on the record, including a sentence that deviates from the prescribed minimum where substantial and compelling circumstances are found.

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[2013] ZAFSHC 23
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Mololo v S (A284/2012) [2013] ZAFSHC 23 (7 March 2013)

FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A284/2012
In the matter between:-
MOJALEFA MACDONALD
MOLOLO
..........................................
Appellant
versus
THE STATE
...............................................................................
Respondent
_______________________________________________________
CORAM:
MOLEMELA, J
et
MHLAMBI, AJ
_______________________________________________________
HEARD ON:
4
FEBRUARY 2013
_______________________________________________________
JUDGMENT BY:
MHLAMBI, AJ
_______________________________________________________
DELIVERED:
7 MARCH 2013
_______________________________________________________
[1] This is an appeal
against sentence by the appellant, leave to appeal having been
refused and a petition granted on 18 October
2012 against sentence
only.
[2] The appellant stood
arraigned on a charge of murder and was sentenced by the learned
Regional Court Magistrate to 15 (fifteen)
years imprisonment in terms
of
section 276(1)(b)
of the
Criminal Procedure Act 51 of 1977
. The
court had found that no substantial and compelling circumstances
existed to justify the imposition of a lesser sentence than
one
prescribed by legislation.
[3] The appellant, as at
the time of sentence, was 45 years old, married, a holder of a
University Degree in Education and had worked
for the Department of
Education’s office in Bloemfontein for 21 years. He earned a
salary of R10 000.00 per month. He has
a 17 year old daughter for
whom he paid maintenance in the amount of R300.00 and paid R1 000.00
towards her grocery. He also cared
for his sister’s two
children for whom he paid University fees.
[4] He had one previous
conviction of reckless and negligent driving which the court did not
take into consideration and, for all
intents and purposes, regarded
him as a first offender. The court found that he had caused the two
fatal stab wounds to the deceased
when he stabbed him from the front.
Thereafter, he had stabbed the deceased in the back when the latter
turned around to flee.
[5] The learned
magistrate makes the following observation:
“
Wat wesenlik
van belang is is dat hierdie nie ‘n beplande moord is nie, dit
is nie ‘n beplande optrede nie, dit was
nie vooraf deur u
beplan om uitgevoer te word nie. Dit is ‘n ongelukkige voorval
wat nooit moet gebeur het nie.”
See lines 14 – 17
of the record.
[6] Relying on
S v
Malgas
2001 (1) SACR 469
(SCA), Mr Van Rensburg, on behalf of
the appellant, contends that the trial court misdirected itself in
finding that no substantial
and compelling circumstances existed in
terms of section 51 of the Criminal Code and that the sentence is
unjust and disproportionate
to the triad of the crime, the criminal
and the interests of society.
[7] He contended
furthermore that the trial court understated the influence of
intoxicating liquor and provocation. He conceded
however that the
crime is serious and that the imposition a term of imprisonment is
not an inappropriate sentence. He asked the
court to impose a lesser
sentence, a portion of which should be suspended.
[8] Mr Steyn, on behalf
of the State, contended that the appeal should fail on the following
grounds:
8.1. The trial court
exercised its discretion properly and never misdirected itself;
8.2. It was correct in
finding that in this case no substantial and compelling circumstances
existed;
8.3. The appellant
committed a serious crime and the court had to take into account the
prevalence of violent crimes in its area
of jurisdiction;
8.4. The appellant
cold-bloodedly stabbed an unarmed and defenceless victim three times
with a knife;
8.5. The appellant is not
remorseful;
8.6. The trial court was
correct in finding that the prescribed minimum sentence had to be
imposed.
[9] The facts that led to
the appellant’s prosecution are briefly as follows:
The deceased was quite
displeased with the behaviour and attitude of the lady who had
alighted from the appellant’s car. He
had approached the
appellant, who was at the time seated in the driver’s seat to
register his displeasure. An altercation
then ensued between the
appellant and the deceased as blows were exchanged. The appellant got
out of his motor vehicle, pursued
the deceased and stabbed the
deceased twice. The deceased sustained fatal injuries in the process.
[10] The cardinal issue
in this appeal then is whether, given the facts of this case, the
trial court was correct in its conclusion
that substantial and
compelling circumstances were non-existent and therefore precluded
from departing from the sentences laid
down by the legislature.
[11] Counsel for the
appellant referred to
S v Maleka
2001 (2) SACR 366
(SCA), arguing for a partially suspended sentence. The appellant in
that case, a 30 year old teacher was convicted in a Regional
Court of
murder and was sentenced to ten years imprisonment. The following
factors constituted mitigating factors in that case:
The appellant was a
first offender;
The appellant is a
useful member of society and occupies a responsible position as a
science teacher holding a senior teaching
diploma;
The appellant supports
his mother as the sole breadwinner;
The appellant acted
under extreme provocation;
The crime was not
premeditated and was committed almost on the spur of the moment;
The conviction and
imprisonment of the appellant is likely to render it extremely
difficult for him to be re-employed as a teacher.
See paragraph f –
j and a – b on pages 367 and 368.
On appeal the sentence
was reduced to ten years imprisonment of which five years was
suspended for three years.
[12] In terms of
section
274(1)
of the
Criminal Procedure Act 51 of 1977
, a court may, before
passing sentence, receive such evidence as it thinks fit in order to
inform itself as to the proper sentence
to be passed.
[13]
Section 51(3)(a)
of
the
Criminal Law Amendment Act 105 of 1997
reads as follows:
“
(3)
(a)
If any court referred to in subsection (1) or (2) is satisfied that
substantial and compelling circumstances exist which justify
the
imposition of a lesser sentence than the sentence prescribed in those
subsections, it shall enter those circumstances on the
record of the
proceedings and must thereupon impose such lesser sentence.”
[14] In the seminal
judgment of
S v Malgas
2001 (1) SACR 469
(SCA) at 477
paragraphs d – f it was emphasised that:
“
The
specified sentences were not to be departed from lightly and for
flimsy reasons which could not withstand scrutiny. Speculative

hypotheses favourable to the offender, maudlin sympathy, aversion to
imprisoning first offenders... and like considerations were
equally
obviously not intended to qualify as substantial and
compelling circumstances... But for the rest I can see no
warrant
for deducing that the legislature intended a court to exclude
from consideration,
ante
omnia
as it were, any or all of the many factors traditionally and
rightly taken into account by courts when sentencing offenders.”
[15]
Malgas
,
supra
, was followed in
S v Matyityi
2011 (1)
SACR 40
(SCA). See also
S v Serabo
2002 (1) SACR 391
(E) at 397 D – F.
The main purposes of
punishment are deterrent, preventive, reformative and retributive –
R v Swanepoel
1945 (AD) 444 at 451.
One
should guard against allowing the heinousness of the crime to exclude
all other relevant considerations. What is needed is a
balanced and
judicial assessment of all the factors. See
S v Rabie
1975 (4) SA 855
(A) at 863 A – D. See also
S v Du Toit
1979 (3) SA 846
(a) at 857 H – 858 B;
S v Khumalo
[1984] ZASCA 30
;
1984 (3) SA 327
(A) at 330 – 331 G.
[16] In
S v De Kock
1997 (2) SACR 171
(T) it was stressed that the three factors of the
Zinn triad have to be considered in conjunction with one another and
that each
should be afforded a certain weight depending on the facts
of the case, taking into account the purposes of punishment.
[17] In the present
appeal there are a number of mitigating factors,
viz
:
17.1 The appellant is a
first offender;
17.2. The crime was not
premeditated and committed almost on the spur of the moment;
17.3. The deceased
initiated the quarrel;
17.4. The appellant is a
useful member of society who occupied a responsible position in the
Department of Education;
17.5. The appellant was
the breadwinner of his family and the next-of-kin;
17.6. The appellant acted
under provocation;
17.7. The probability of
his re-employment in the Educational field is probably zero as a
result of his conviction and imprisonment.
[18] On reading the
record on sentence, it would appear that the learned magistrate did
not put sufficient weight to these factors.
Mr Van Rensburg’s
contention that appellant’s personal factors were
under-emphasised, does not appear to be misplaced.
On indicating that
the appellant was neither remorseful nor played open cards with the
court, the learned magistrate says:
“
U weet u het
‘n dogter van 17 wat versorging nodig het, u sorg vir u suster
se kinders op universiteit, u weet as gevolg van
‘n optrede
soos hierdie is dit merendeel en grotendeels u familie wat gestraf
word, u familie word swaarder gestraf as u,
want hier praat ons van
verpligte vonnisstraf, dit was aan die saak aan u verduidelik. U is
nou self verantwoordelik vir dit wat
u op die hals gaan haal. U weet
die Hof moet u persoonlike omstandighede in aanmerking neem, maar
soos wat Mnr Wiegand uitgewys
het daar is niks snaaks aan nie, elke
mens wat na die Hof kom het daardie omstandighede, u is nou net beter
daaraan toe, u is meer
geskoold, meer geleerd, u is beter opgevoed
met respek gesê en ons verwag van u ‘n anderste optrede
as wat u doen.
U weet u kom nie eers na die Hof en betoon berou nie,
u kom nie eers na die Hof en sê vir die Hof wat het werklik die
dg
of die aand in u gedagtes omgegaan nie, u kom nie na die Hof en sê
hoekom u gedoen het wat u gedoen het nie, u doen dit nie.
Deur die
hele verhoor toon u egter ‘n houding teenoor die Hof en die Hof
sien dit raak en het dit raakgesien dat u onaantasbaar
is, ‘n
tipe van ‘n arrogante houding, u val tot u prokureur aan.”
[19] Besides, it is
apparent that the trial court did not consider the particular
circumstances of this case in the light of the
well-known triad of
factors relevant to sentence and impose what is considered as a just
and appropriate sentence. See
S v Malgas
,
supra
,
on page 478. The court therefore felt itself bound to comply with the
prescription of the minimum sentence legislation. This constitutes
a
misdirection. In my view, the appellant’s mitigating
circumstances, cumulatively viewed, constitute substantial and
compelling
circumstances that warrant deviation from the prescribed
sentence.
[20] I am therefore of
the considered view that this court is justified in interfering with
the sentence imposed by the trial court
and that an appropriate order
is the following:
[21] 21.1 The appeal
succeeds.
21.2. The sentence of 15
(fifteen) years imprisonment is set aside and there is substituted
for it a sentence of imprisonment for
10 (ten) years. The sentence is
antedated to 11 April 2012 being the date upon which the 15 (fifteen)
years imprisonment was imposed.
_______________
J.J. MHLAMBI, AJ
I concur.
_________________
M.B. MOLEMELA, J
On behalf of appellant:
Adv T.B. van Rensburg
Instructed by:
Jacques Groenewald
Attorneys
KROONSTAD
On behalf of respondent:
Adv C.F. Steyn
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN
/spieterse

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