Shaik and Others v Director for Public Prosecutions KZN (148/06) [2006] ZASCA 126; [2006] SCA 154 (RSA) (30 November 2006)

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[2006] ZASCA 126
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Shaik and Others v Director for Public Prosecutions KZN (148/06) [2006] ZASCA 126; [2006] SCA 154 (RSA) (30 November 2006)

THE SUPREME COURT
OF APPEAL
OF
SOUTH AFRICA
Not Reportable
Case No.148/06
In
the matter between:
RASHID
SHAIK First Appellant
RENESH
SINGH Second Appellant
GERALD
GOVENDER Third Appellant
SUMUGAN
MUTHUSAMY GOVENDER Fourth Appellant
and
DIRECTOR
FOR PUBLIC PROSECUTIONS,
KZN
Respondent
CORAM: ZULMAN, BRAND, MAYA JJA et MALAN
THERON
AJJA
HEARD:
3 NOVEMBER 2006
DELIVERED:
30 NOVEMBER 2006
Summary: Sentence – Uniformity of sentences desirable for
co-accused with equal complicity in the commission of the same
offences
and relatively comparable personal circumstances –
appellants not all playing an equal role in the commission of the
offences -
differing sentences warranted - no material misdirection
on the part of court below – no marked disparity between the
sentences
imposed by the court below and those which would have been
imposed by this court – no basis for interference.
Neutral Citation: Shaik & others v Director for
Public Prosecutions, KwaZulu Natal [2006] SCA 154 (RSA).
JUDGMENT
MAYA
JA
[1] The appellants were four of eleven accused arraigned
before Magid J, sitting with assessors in the Durban High Court, on
an indictment
containing seven counts – four of kidnapping, one of
murder, one of attempted murder and one of robbery with aggravating
circumstances.
[2] Three of the accused were acquitted at the
conclusion of the trial. The first and second appellants were
convicted of two counts
of kidnapping, murder and attempted murder.
They were both sentenced to five years imprisonment in respect of
each count of kidnapping,
life imprisonment for the murder and ten
years imprisonment for the attempted murder. The third and fourth
appellants were convicted
of murder and attempted murder. They were
each sentenced to life imprisonment for the murder and ten years for
the attempted murder.
The shorter terms of imprisonment were ordered
to run concurrently with the life sentence imposed in respect of the
murder.
[3] The court of first instance refused the first and
second appellants’ applications for leave to appeal against their
convictions
and sentences. The third and fourth appellants brought
similar applications and were granted leave to appeal only against
their convictions.
An application to this court, brought only by the
first, second and third appellants, was successful. Leave was granted
to the full
court of the Natal Provincial Division – in respect of
the first and second appellants against both convictions and
sentences and
in respect of the third appellant, against his
sentences. On appeal, the court
a quo
interfered only with the
sentences of life imprisonment on a finding that there were
substantial and compelling circumstances justifying
the imposition of
lesser sentences. The sentence was replaced with twenty years
imprisonment in respect of the first and second appellants
and 12
years imprisonment in the case of the third appellant. This appeal,
with special leave by this court, is against these sentences.
[4] The facts which gave rise to the appellants’
convictions are the following. On 13 June 1998, the second appellant
and a friend,
Mr Leeshaul Dewnand, were involved in an altercation
with the deceased in the count of murder and his friends at a certain
shopping
centre in Phoenix near Durban. During the incident the
deceased pointed a firearm at the second appellant. One of the
deceased’s
friends insulted and assaulted Dewnand and kicked the
vehicle driven by the second appellant. On the following day, the
second appellant
reported the incident to Mr Nithia Chinnasamy
(accused 6) who was the leader of a group alleged to be a gang to
which the appellants
and their co-accused belonged. Chinnasamy wanted
the deceased to be ‘taught a lesson’ and instructed the first and
second appellants,
accused 4, Dewnand and Mr Matthew George, to find
and bring him to Rinkgreen Walk, a spot popularly called Nithia’s
section, at
which the group habitually congregated.
[5] The first and second appellants, accused 3 armed
with a firearm, accused 4 and George set off in the second
appellant’s vehicle.
They could not find the deceased but met a
friend of his, Mr Gabriel David (the complainant in count 1), whom
they forced into their
vehicle and took to Chinnasamy. There he was
manhandled and ordered to take his abductors to the deceased. The
deceased was ultimately
located in the company of two friends, Mr
Hansraj Deepchund (the complainant in the count of attempted murder)
and Mr Deon Naidoo,
the complainant in count 4. He was standing next
to Deepchund’s vehicle parked in the street. The second appellant
parked his vehicle
in a manner that prevented the deceased and his
companions from escaping. The deceased discharged the firearm that he
took from Deepchund
in the direction of the first and second
appellants but it was not loaded and merely made a clicking sound.
Accused 3 disarmed the
deceased at gunpoint. The deceased and his two
companions were then assaulted and forcibly taken to Chinnasamy. The
deceased was
conveyed in the second appellant’s vehicle and his two
companions, in Deepchund’s which was driven by accused 3. David was
allowed
to leave.
[6] On the group’s arrival at Rinkgreen Walk,
Chinnasamy ordered the first, second and fourth appellants and
accused 3, 4, 5 and
7 to assault the deceased and Deepchund whereupon
the two men were viciously assaulted. Naidoo was allowed to leave in
Deepchund’s
vehicle, on Chinnasamy’s instructions. The deceased
and Deepchund were kicked and punched and assaulted with an
assortment of objects.
During the assault Chinnasamy instructed the
fourth appellant to summon the third appellant and accused 10 who
were his employees
and were on duty at one of his building sites. On
their arrival at the scene the three men joined in the assault which
was still
in progress.
[7] All four appellants actively participated in the
assault of the deceased and Deepchund. The first appellant hit the
deceased with
a mop handle and burning logs. He took a hose from a
nearby fire hydrant, put it in the deceased’s mouth and turned on
the water.
He hit Deepchund with a baseball bat and a pipe. After the
arrival of accused 10 and the third and fourth appellants, he pulled
down
the deceased’s pants and the third appellant then pushed a
stick into the deceased’s rectum. The third appellant also punched
the deceased. He kicked Deepchund and threw a burning log at him. The
second appellant assaulted the deceased with a mop handle and
burning
logs. He trampled Deepchund. The fourth appellant hit the deceased on
the head, legs and other parts of the body with a baseball
bat. He
lifted Deepchund and threw him on the ground.
[8] It is only when the victims were motionless that
Chinnasamy stopped the assault and ordered some of the assailants to
remove them
from the scene. The deceased and Deepchund were then
dragged and thrown down an embankment at nearby school grounds, some
200m away.
This is where the deceased’s body was subsequently
discovered. The second and fourth appellants were some of the men who
dragged
the bodies away. The deceased had groaned as he was being
dragged away. Deepchund somehow survived the brutal attack and
managed
to crawl to a nearby house for help on regaining
consciousness. On Chinnasamy’s orders, the scene was hosed down to
remove traces
of the victim’s bloodstains. Pieces of their
clothing, torn during the assault, were thrown into nearby bushes.
According to the
medical evidence, the deceased sustained and died
from multiple injuries, some 225 bruises and four lacerations,
covering his entire
body. This excludes the internal injuries to his
brain, lungs and rectum.
[9] The appellants’ relevant personal circumstances
which Magid J took into account were the following. All but the
fourth appellant
were first offenders. They resided in Phoenix, an
area severely disadvantaged socially and economically and afflicted
by attendant
social ills. The first appellant was 30 years old at the
time of sentence. He had a matric certificate and was employed as a
technician.
His wife had died shortly before the day on which
offences were committed. He lived with his parents and supported his
ailing, 65
year-old mother and a 12 year-old niece. The second
appellant held three postmatric diplomas in bookkeeping, accountancy
and computers.
He was in stable employment and maintained an ailing
elderly mother. The third appellant was 19 years old at the time of
the offences.
The highest standard he passed at school was Std 5. He
was self-supporting and worked for accused 6 in the building
construction
industry. He has no dependants. The fourth appellant was
34 years old at the time when sentence was imposed. The highest
standard
he passed at school was Std 4. He was employed as a driver.
He has a wife and two young children. He was convicted of
housebreaking
at the age of 14.
[10] The court
a quo
found that Magid J’s
conclusion relating to the count of murder that there were no
substantial and compelling circumstances justifying
the imposition of
sentences lesser than life imprisonment in respect of the appellants
was wrong. It held at pages 45-46 of its judgment:
‘[D]espite
the gruesomeness of the murder, the sentences of life imprisonment
would be out of all proportion to the moral blameworthiness
of
accused [appellants] Nos 1 and 2. They were not leaders, but
followers, and in this instance their assault on the deceased had
been the result of carrying out accused No 6’s orders. Their
personal contributions had not been great, and it must be accepted
that they had not acted with
dolus directus
, but only with
dolus eventualis.
On top of that the evidence suggested that
all of them had been drinking or smoking some or other drug. These
features in my view
constituted substantial and compelling
circumstances, for the purposes of section 51(3)(a) [of the
Criminal
Law Amendment Act 105 of 1997
], which therefore warrant the passing
of a sentence other than the life imprisonment which
section 51(1)
otherwise prescribed. In my view sentences of 20 years imprisonment
on count 5 …would have sufficed…As far as the sentence on
count 5
is concerned, however, for exactly the same reasons as in the cases
of accused Nos 1 and 2, accused No 8’s [third appellant]
sentence
on count 5 must be reduced. In this regard it is difficult to follow,
since they both arrived at the scene at a late stage,
why accused No
8 was sentenced to life imprisonment where accused No 10 was given
only seven years. Because the role accused No 8
played in the assault
on the deceased was more serious than that of accused No 10, his
sentence should be reduced to 12 years.’
[11] The court
a quo
further held that the
considerations which were relevant to the reduction of the life
sentences in respect of the first, second and
third appellants were
equally applicable to the fourth appellant’s case but because he
had not appealed, it could not come to his
aid. I respectfully agree
with these views. Counsel for the State properly conceded that his
sentence of life imprisonment should
be reduced. He submitted that a
twenty-year term of imprisonment similarly imposed on the first and
second appellant would be appropriate.
He, however, argued that the
sentences imposed upon the other appellants were proper and should be
confirmed.
[12] The appellants’ counsel contended that as the
appellants had acted with common purpose, they should have received
similar sentences
for the murder. An appropriate sentence for each of
them, he argued, would be a seven-year term of imprisonment similar
to that imposed
upon accused 4 and 10, ordered to run concurrently
with the other sentences. I do not agree. Uniformity of sentences is
of course
desirable and our courts generally strive to achieve it in
cases where there has been a more or less equal degree of
participation
in the same offence or offences by participants with
roughly comparable personal circumstances.
1
This is hardly the case in the instant matter.
Firstly, the court
a quo
correctly distinguished the
respective roles played by each of the accused in the commission of
the offences and found that neither
accused 4, who is the only one
who admitted taking part in the commission of the offences, or
accused 10, who arrived late at the
scene, inflicted serious injuries
on the victims. That was the basis for their lesser sentences which
have properly not been challenged.
[13] I agree with the court
a
quo
’s reason for imposing a sterner sentence on the third
appellant despite the fact that he arrived simultaneously with
accused 10
at the scene. He, of all the assailants, perpetrated the
cruellest, most barbaric and degrading act on the helpless deceased
by ramming
a stick into his rectum. Such conduct is by no means
comparable to that of either accused 10 or accused 4 and clearly
warrants the
sentence imposed on him. However, h
is
youthfulness and immaturity at the time of the offences and his late
arrival at the scene obviously distinguishes his case from
those of
the more mature first and second appellants.
[14] The second appellant is clearly the one who brought
about the whole tragic incident because, as Magid J correctly found,
he sought
revenge against the deceased and reported his encounter
with him to Chinnasamy precisely for that reason. He and the first
appellant
were involved in the incident from the onset, starting with
their persistent efforts to locate the deceased. They both inflicted
a prolonged and brutal attack on the deceased. It can hardly be said
that the twenty year terms of imprisonment imposed on them are
unreasonable or inappropriate regard being had to all the relevant
circumstances. There is, in my opinion, no reason to interfere
with
the sentences.
[15] As far as the fourth appellant is concerned, I am
not persuaded that he played a significantly lesser role than the
first and
second appellants. His participation in the deceased’s
assault was no less aggressive or reprehensible than that inflicted
by those
two men. It is he who struck the deceased on the head and
back with a heavy baseball bat and carried out Chinnasamy’s
instructions
to break the deceased’s legs by striking him on ‘his
legs’ with the same instrument. It is difficult to imagine more
vicious
acts. Some of the injuries sustained by the deceased tallying
with this assault were brain haemorrhage and congestion, haemorrhages
and bruising in the thighs and knee joints, a swollen right kneecap
and a fractured left kneecap. Even on his return from fetching
accused 10 and the third appellant he resumed the assault. He opened
the deceased’s eyes, clearly indicating that he realised the
extent
and probable consequence of the assault on the deceased before
callously dragging him away. I am satisfied that his degree
of
participation in the assault and his moral blameworthiness were
relatively equal to that of the first and second appellants. Having
regard to this fact and their comparable personal circumstances,
there is in my view no warrant for differentiation between their
sentences. A reasonable and appropriate sentence in his case would be
one similar to those imposed upon the first and second appellants.
[16] Other than to argue half-heartedly that the court
a
quo
did not consider the cumulative effect of the first, second
and third appellants’ sentences, a submission which clearly had no
merit,
their counsel could point to no material misdirections which
would vitiate the sentences and entitle this court to interfere. I
have
not found any. Neither does it seem to me that the disparity, if
any, between the sentences of the court
a quo
and the
sentences which this court would itself have imposed is so marked
that the sentences can be described as ‘shocking’ or
‘startling’
or ‘disturbingly inappropriate’.
2
There is therefore no basis for this court to interfere. Their
appeals must accordingly fail. For the reasons stated above, the
fourth appellant’s appeal however must succeed.
[17] In the result, the following order is made:
The appeals by the first, second and third appellants
are dismissed.
The appeal by the fourth respondent succeeds. The
sentence of life imprisonment imposed upon him is set aside and
there is substituted
for it a sentence of twenty years imprisonment,
antedated to the date the sentence of life imprisonment was imposed.
_________________
MML MAYA
JUDGE
OF APPEAL
CONCUR:
ZULMAN
JA
BRAND
JA
MALAN
AJA
THERON
AJA
1
S
v Goldman
1990 (1) SACR 1
(A)
at 3e;
S
v Vermeulen
2004 (2) SACR 174
(SCA) at 185e.
2
S
v Malgas
2001 (1) SACR 469
(SCA) para 12.