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[2011] ZAFSHC 178
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Molautsi v S (A164/2010) [2011] ZAFSHC 178 (24 November 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: A164/2010
In
the appeal between:
NHLANHLA MOLAUTSI
….......................................................
Appellant
and
THE STATE
…......................................................................
Respondent
_____________________________________________________
CORAM:
RAMPAI J
et
MTHEMBU AJ
_____________________________________________________
JUDGEMENT:
RAMPAI J
HEARD ON:
9
NOVEMBER 2011
_____________________________________________________
DELIVERED ON:
24 NOVEMBER 2011
[1] These are appeal
proceedings. The appellant appeals against the sentence. He was
sentenced to undergo a period of 12-years imprisonment
by the
regional court magistrate. He comes to us with the leave to appeal
granted by this court. The sentence imposed on him is
not supported
by the respondent.
[2] The appellant was
arrested on the 6 November 2008 and charged with two crimes. The
respondent accused him, in the first place,
of an attempting to
murder Ms Anna Magarita Swarts. In the second place the respondent
also accused him of housebreaking with intent
to steal and theft. The
value of the victim’s stolen goods was estimated to be R12
300,00. Both of these crimes were committed
at 22 Van Eck Street
Sasolburg on the 28 October 2008.
[3] Almost 7 months
later, on the 2 June 2009, the appellant appeared before Ms P J
Ngewu, in the Sasolburg regional court for trial.
Mr D Rantsane
appeared for the state and Ms M Nethononda for the accused. He then
pleaded guilty. The statement he made in terms
of section 112(2) of
the Criminal Procedure Act, number 51 of 1977 was read out and handed
in by his lawyer as exhibit “a”.
He was convicted on the
strength of his plea.
[4] The case was then
remanded for the probation assessment report and correctional
assessment report. The appellant was sentenced
on 30 June 2009. The
following documentary evidence was available on that day:
4.1 medical report form
J88 in respect of the victim: Dr P Pillay: exhibit “b”;
4.2 criminal record form
SAPS 69C in respect of the accused: exhibit “c”;
4.3 correctional
supervision report in respect of the accused: Ms C van Hads, exhibit
“d”;
4.4 probation officer’s
report in respect of the accused: Ms L Morajane, exhibit “e”.
On that day the appellant
was sentenced to 12 years imprisonment. The two offences were taken
as one for the purpose of sentence.
It would seem that the appellant
is currently serving his sentence at Groenpunt Youth Centre.
[5] The appellant was
aggrieved by the sentence. Still on 30 June 2009 he immediately
applied for leave to appeal. His application
was unsuccessful in the
court
a quo
. On the 3 July 2009 he filed a petition. His
petition was allocated to and considered by my colleagues Ebrahim J
et
Van der Merwe J on 30 November 2011. His petition was
successful - hence this appeal.
[6] Among others, the
appellants’ grounds of appeal were: that the court
a quo
misdirected itself by underplaying the personal circumstances of the
appellant on the one hand and by overplaying the seriousness
of the
crime on the other hand. The imbalance, so contended the appellant,
produced a sentence which was not in line with the probation
officer’s or social worker’s report and was, therefore,
strikingly inappropriate.
[7] In sentencing the
appellant, the court
a quo
took into account the following
aggravating factors:
The victim was attacked
in the sanctuary of her own home. The attack was vicious. She
sustained multiple stab wounds. She was 78
years old. She was alone
in the house. Therefore, she was vulnerable and defenceless. The
victim was paralysed as result of the
violent attack. She permanently
lost the use of her legs. The assault aggravated the victim’s
fragile physical condition.
Her health steadily deteriorated after
the assault. Her stolen goods were never recovered. In this case, the
interests of society
were badly or offensively undermined by the two
crimes. These sorts of crimes, the trial court found, were becoming
prevalent in
the particular region of the province.
[8] In sentencing the
appellant, the court
a quo
also took into account the
following mitigating factors: Firstly, the relative youth of the
appellant. Secondly, his clean criminal
slate.
[9] Ms Kruger, attorney
for the appellant, submitted that the court
a quo
did not
properly take into account certain important factors favourable to
the appellant. Ms Bester, counsel for the respondent,
agreed. The
appellant was born on 22 September 1992. At the time the appellant
committed the two crimes on 28 October 2008 he was,
therefore,
16-years of age. At the age of 16 years the appellant was plainly a
child. The court
a quo
regrettably shyed away from that
reality. Instead of describing the appellant as a child, it referred
to him as a youth. A youth
is not always necessarily a child.
Ordinarily, though not uniformly, judges use the word to describe any
offender above 18 but
below 26 years of age.
[10] That the court
a
quo
did not treat the appellant as a child is apparent from the
following:
“
I admit that
according to the records here you are (sic) a minor when you
committed the offences.
But your conduct fall (sic) short of
my knowledge,
mean (sic) that takes you of (sic) the brackets of
minors totally.
”
(record, p. 25: 21 –
p. 26: 1)
The court
a quo
went further and said the following about the accused:
“
I mean your
personal circumstances, what stands out is the fact that you are a
youth.
That
only does not operate in your favour.
”
(record, p. 26: 15 –
18)
[11] I am of the view
that the court
a quo
closed its mind to some important
mitigating factors. The two quotations showed that the appellant was,
on account of the gravity
of the crimes, stripped off his childhood
and elevated to the world of adulthood for the purposes of
punishment. Such an approach
to sentencing a child was flawed.
[12] As regards the
status of the appellant as a first offender, the regional magistrate
remarked:
“
Yes, you are
a first offender. It is our duty as the court to meet criminal
behaviour on the ……. (indistinct) ….”
(record, p. 26: 20 –
22)
Again, a strongly
mitigating factor was fleetingly glossed over and quickly played down
through reversion to the appellant’s
criminal behaviour which
formed part of the aggravating factors. The appellant had, by then,
already heard that his criminal conduct
totally disentitled him to be
judicially treated and punished as a child and that being a child or
rather youth, as the court
a quo
described him, alone did not
operate in his favour.
[13] The recurring manner
in which the negative aspects of the appellant’s conduct were
repeatedly accentuated rather indicated
that the court
a quo
drastically extenuated the positive aspects of his person. The
remarks indicated that the appellant’s personal profile was
not
properly and adequately individualised to ensure that the punishment
fitted his person as well. In a case of a first offender,
particularly a child offender, the devastating adverse impact of an
inordinately long period of direct imprisonment should never
be
overlooked and under-estimated. See
S v WOOD
1973 (4)
SA 95
(RA) at 96H – 97B per Macdonald JP.
[14] Besides his status
as a child, 16 years of age, and his status as a first offender,
(exhibit “c”) the appellant
acknowledged he wronged and
offended the community (p13 exhibit “e”); he expressed
remorse for the crimes he committed
(1.3 exhibit “d”); he
came from a dysfunctional and broken family (1.2 exhibit “d”);
his level of formal
education, (grade 3) was extremely poor (exhibit
“e”). Apparently, he has low intellect. Perhaps the
divorce of his
parents had an adverse impact on his immature
emotions. The last two factors could also possibly explain why he
dropped out of
school so early when he was seemingly in grade 4.
[15] He was on addictive
drugs (cannabis) and other dependence forming substances such as glue
(exhibit “e”). Moreover,
and this is a factor of vital
importance, he was very high at the time he committed the misdeeds
because he did so shortly following
some heavy sniffing of glue. Of
the vicious assault, he remembered very little.
[16] His vague memory or
weak recollection of the incident tends to show that he acted
irrationally and impulsively as a result
of his impaired capacity to
rationally control his actions.
[17] Finally, he pleaded,
with genuine remorse, guilty to both charges. Those who genuinely do
so should receive credit
S v SEBATA
1994 (3) SACR 319
(C) at 325F. The appellant was incarcerated for seven months before
he was sentenced. The mental anguish of such a pre-sentence
period of
detention was held to be doubly worse than that of a post sentence
imprisonment –
S v STEPHEN AND ANOTHER
1994 (2)
SACR 163
(W) at 168E per Shultz J. See also
S v NKOMOMDE
1993 (2) SACR 597
(W). I share those sentiments.
[18] Those crucial
mitigating factors should have been allowed to influence the trial
court in its difficult task of determining
an appropriate measure of
punishment. They did not. None of them was considered. His status as
a child and a first offender though
mentioned, were not meaningfully
considered. Instead, the value(s) which should have been properly
attached to such significant
factors were virtually watered down.
[19] The end result of
all these was that the sentence component of the judgment revealed
that certain relevant factors relative
not only to the circumstances
in which the crimes were committed, but also to the appellant’s
personal circumstances, were
not fully explored, assessed and
properly taken into account. In determining an appropriate
punishment, no genuine attempt was
made to individualise the child
offender. The seriousness and the brutality of his actions should not
be allowed to unduly overshadow
his peculiar circumstances as an
individual. Here, I am convinced that an error has been committed:
“
A failure to
take certain factors into account or an improper determination of the
value of such factors amounts to a misdirection,
but only when the
dictates of justice carry clear conviction that an error has been
committed in this regard.”
S v KIBIDO
1998 (2) SACR 213
(SCA) at 216h – I per Olivier JA.
[20] In the
circumstances, I am convinced that the regional magistrate materially
misdirected herself. The misdirection was of such
a nature degree and
seriousness that it can be said that the court
a quo
did not
properly or reasonably exercise its sentencing discretion –
S
v PILLAY
1977 (4) SA 531
(A) at 535A-B per Trollip JA.
[21] Ms Kruger submitted
that although correctional supervision in terms of section 276(1)(h)
was not recommended as a sentencing
option, the court
a quo
should, as a last resort, have considered sentencing the child
offender to correctional supervision in terms of section 276(1)(i).
This particular sentencing option was recommended by the probation
officer, Ms L Morajane, the social worker who compiled the
presentence social assessment report in respect of the appellant
(vide par 15 exhibit “e”). The recommendation did not
find favour with the trial magistrate. Hardly any reference was made
to the positive recommendation.
[22] This brings me to
the correctional assessment report made in terms of section 276(A)(1)
by Ms C van Hads, a social worker by
profession who was in the employ
of the Department of Correctional Services. Her official designation
was correctional officer.
She wrote:
“
Attempted
murder a well as housebreaking with the intent to steal and theft are
serious offences and this should therefore also
be taken into account
when correctional supervision as a sentence is considered.
This
office is of the opinion that correctional supervision as a sentence
would not be in line with the seriousness of these offences.
The
victim sustained serious injuries against (sic) crimes where the
elderly is (sic) targeted. Correctional supervision is therefore
not
recommended in this instance.
”
[23] It is obvious that
the correctional officer’s opinion was, by and large,
influenced by the seriousness of the victim’s
assault.
Admittedly, the attack was vicious. But the correctional officer’s
negative recommendation against any form of correctional
supervision
was misplaced. Her opinion created the unfortunate and erroneous
perception that correctional service, be it in terms
of section
276(1)(h) or section 276(1)(i) cannot be imposed on offenders
convicted of very serious offences. The correct legal
position is
that correctional supervision can be imposed as a meaningful
alternative sentencing option to the direct imprisonment
sentencing
option in respect of any offence, however, serious. See
S v M
(CENTRE FOR CHILD LAW AS
AMICUS CURIAE
)
[2007] ZACC 18
;
2007 (2) SACR 539
(CC).
[24] The court
a quo
did not expressly accept Ms Hads’ negative opinion and
recommendation. However, it implicitly accepted her aforesaid
recommendation.
Similarly, the court
a quo
did not explicitly
reject Ms Morajane’s positive opinion and recommendation, but
it implicitly rejected it. In
S v SNYDERS
[2011] WCC
(11942) para [20] 30.09.2011 unreported Moses, AJ had this to say
about the unexplained rejection of the recommendation
of the
probative assessment report and the correctional assessment reports:
“
[20] The
magistrate did not deal with the contents of both reports of the
correctional official and the probation officer in respect
of each of
the accused, not in his reasons furnished nor in the court when he
imposed the sentence as abovestated. No reasons are
given, nor any
basis laid or established why these recommendations were ignored
and/or simply rejected, as he appeared to have
done. Given the fact
that all these reports were handed in, and admitted as
uncontested
evidence regarding its content,
cogent
reasons must exist for its rejection, especially given the
circumstances of this particular case. No such reasons were
furnished.
”
(see annexure to the
appellant’s heads of argument filed by Mr J D Reyneke.)
[25] The correctional
officer, whose recommendation the court
a quo
appeared to have
uncritically adopted, albeit silently, did not express a firm view as
to the inappropriateness of correctional
supervision as a sentencing
option in this case. This was how she concluded her report:
“
It is
however still possible to administer a sentence of correctional
supervision upon the accused as he has a positive address
where he
can be accommodated and if the court is of the opinion that such a
sentence would be the most suitable sentence it can
indeed be
imposed. This office is however of the opinion that several risk
factors exists in terms of the stability and behaviour
of the
accused.”
(record, p 42)
[26] The opinion of the
correctional officer against correctional supervision squarely rested
on three cornerstones, which were:
that sentence in the form of
correctional supervision would not be in line with the seriousness of
the crimes committed; that there
were several risk factors concerning
the accused’s social stability and similarly, that there were
several risk factors concerning
the accused’s behaviour.
[27] As regards the first
cornerstone, I have already expressed my views. I deem it unnecessary
to elaborate any further. As regards
the second, I am not persuaded
that there are serious risk factors about the appellant’s
social stability. The mere fact
that the appellant occasionally
sleeps out coupled with the fact he does not attend school does not
justify the conclusion that
monitoring him would be impossible or
very difficult. As regards the third cornerstone, a few incidents
were cited by the correctional
officer and the probation officer
which indicated that the appellant was an angry child. His aggressive
behaviour manifested itself
on various social fronts such as home,
school, street and even at the youth detention centre where he was
held prior to the date
on which he was sentenced.
[28] Ordinarily, his
father said, the appellant was not a delinquent and troublesome
child. He attributed his deviant behaviour
and occasional acts of
aggression to addictive substance abuse. The appellant himself, when
asked to comment about his violent
and criminal actions at the
elderly victim’s home, told the correctional officer that he
did not really know why he behaved
as he did; that he acted out of
character; that his deviant behaviour was occasioned by his abuse of
addictive substances which
he had smoked shortly before the incident
and that he was remorseful about his behaviour. This was the other
end of the spectrum.
This positive perspective of the appellant’s
behaviour was never addressed or considered – not by the
correctional
officer or by the regional magistrate. Both dwelled on
the one and only aspect of the spectrum – the unfavourable
aspects
of the appellant’s behaviour but not its cause.
[29] If we accept, as did
the probation officer and the correctional officer that this boy was
highly doped at the time he savaged
the victim, then we inevitably
also have to accept that as a result of his impaired mental faculties
he could not think straight.
The appellant diminished capacity to
will and to control his criminal actions reduced the moral
blameworthiness of his crimes.
This factor significantly augmented
the mitigating factors.
[30] The trial
magistrate, in one sweeping remark, commented as follows, not about
one but two professional assessment reports:
“
According to
the reports you are predisposed to violence, …”
(record, p. 26: 19 –
20)
I am not so certain
whether one can,
in the absence of a well defined
pattern discerned from a series of similar acts of violence, but
merely on the strength of a single
isolated incident,
assert
that an offender is genetically predisposed to committing violent
acts. My understanding of the two reports was that the
appellant was
aggressive towards others. He bullied his peers and even abusively
defied adults at times. His socially deviant and
offensive behaviour
was attributed to his frequent abuse of addictive substances and not
his natural inclination to violence.
[31] On the contrary,
Ms Morajane observed that the appellant’s level of
education did not match his age. In her evaluation of the appellant,
she concluded that such disparity could be explained on
the basis of the appellant’s rather slow intellectual
development.
In the final analysis, she observed that the offender
accepted responsibility for his actions. She stated that such an
acknowledgement
was a positive sign that he was rehabilitable. He now
has insight of the wrong he did and the legal consequences thereof.
The probation
officer made a substantive and not cosmetic evaluation
of the matter and recommended correctional supervision in terms of
section
276(1)(i) on conditions that the accused attended anger
management and detoxification programmes.
[32] Ms Morajane’s
probation assessment report constituted important presentencing
evidentiary material concerning the appellant.
“
It has been
placed before that court, not to fetter its sentencing discretion,
but to serve as a useful, and indeed, an important
guide and
assisting mechanism, for that court to use in the exercise of its
sentencing discretion. Its contents and recommendations
were not
contested nor contradicted by any other evidence which was led and/or
admitted by that court. The magistrate could have
indicated to any of
the parties, the State and the defence, which aspects of these
reports and/or recommendations, if any, the
court would like to hear
evidence on, to further clarify any aspect thereof, including its
recommendations. This would obviously
have enabled the parties,
including the defence, the prosecutor or the relevant compiler/author
of the report to address such aspect
and/or concern. It would also
have afforded an opportunity to these parties to reply to such
queries. The magistrate did not do
so.”
(S v Snyders,
supra,
para [20]) That is precise what happened here.
[33] Still at para 20 of
the same decision Moses AJ continued as follows:
“
The
magistrate as the sentencing court, and in his subsequent reasons,
failed to deal with correctional supervision in respect of
all three
accused as a sentencing option, as he was required to do so. In the
circumstances of this case, it is clear that the
sentencing court did
not
truly
consider
correctional supervision in respect of these accused as a sentencing
option.
It
is therefore clear, that, in the circumstances the magistrate closed
his mind to anything other that direct imprisonment. This
is an
irregularity. (See
S
v Kotze
1994
(2) SACR 214
(O).
”
[34] The appellant was
entitled to know, firstly why the probation officer’s
recommendation which was favourable to him was
unacceptable and
disregarded. Secondly he was also entitled to know why the
correctional officer’s recommendation which was
unfavourable to
him was apparently preferred to that of the probation officer. None
of the two professionals were called to debate
the issue. This was an
unfortunate oversight. By the look of things, and merely judging by
the contents of the assessment reports,
the correctional officer
would probably have conceded that correctional supervision was not
absolutely inappropriate sentencing
option in this case. Important
evidence was regrettably overlooked. The contributions of the
professionals were not meaningfully
explored, digested and used. An
error was committed and it cannot be allowed to stand. The appellant
is entitled to the benefit
of that error.
(
S v ZWANE
2004 (2) SACR 291
(N) per Msimang JP)
[35] The appellant was
deprived of the optimal benefits of the professional evidence
favourable to him. He was seriously disadvantage
by the omission. As
judges, we have to ensure that justice is properly done. It was not
done in this case.
[36] Ms Bester was of the
opinion that a sentence of 7 (seven) years imprisonment of which 2
(two) years imprisonment were conditionally
suspended would have been
an appropriate sentence here. She urged us to adjust the sentence of
12 (twelve) years imposed by the
regional court accordingly. The
submission failed to persuade me. Counsel did not at all argue why
the correctional supervision
sentence in terms of section 276(1)(i)
as recommended by the probation officer, would not be an appropriate
punishment for the
boy. She merely commented that the boy did not
commit the crimes at the spur of the moment.
[37] There was no force
in her contention. In saying so, I am fortified by two facts. In the
first place, it was not her initial
case that the appellant had
planned the crimes long in advance –
vide
paragraph 4 of
the respondent’s heads of argument where the aggravating
factors were diligently tabulated. In the second
place, counsel’s
comment was not proactive but reactive in nature. It was elicited by
a question posed by my brother, Mthembu,
AJ, from the bench. I hasten
to say nothing significant turns on this point. It was not Ms
Bester’s contention that prior
planning ruled the appellant out
for the imposition of correctional supervision sentence in terms of
section 276(1)(i).
[38] It is indeed trite,
as Moses AJ correctly observed in
S v SNYDERS AND OTHERS
,
supra
, paragraph 21 that punishment in the form of direct
imprisonment for child offenders must only be imposed where there is
no other
legitimate sentencing option available other than direct
institutional detention. I am mindful that in practice there would
always
be crimes by children so serious that imprisonment would be
the only appropriate punishment. Serious though this case was, I am
of the firm view that to have this child caged for even 5 (five)
years would amount to failure to take into account not only his
age,
but his low intellect, his doped mind, the possible impact of a
family breakdown on his emotions and other favourable attributes
of
his person as an individual. On the facts, I find myself unable to
clearly give this child sound reasons for not sentencing
him in
accordance with the probation officer’s recommendation.
[39] In
S v B
2006 (1) SACR 311
(SCA) paragraph [18] Ponnan AJA, as he then was,
said:
“
[18]
The
principle that detention is a matter of last resort (and for the
shortest appropriate period of time) is the
leitmotif
of
juvenile justice reform. Those principles are articulated in
international law and are enshrined in s 28(1)
(g)
of
the Constitution which reads:
'(E)very child has the right not to be
detained except as a measure of last resort, in which case . . . the
child may be detained
only for the shortest appropriate period of
time. . . .'”
See also
S v
SNYDERS AND OTHERS
,
supra
, paragraph 21 and the
authorities there cited.
[40] It is my considered
view that, in the peculiar circumstances of this case, any direct
imprisonment will be disproportionate
and therefore excessively
retributive. I am persuaded that there is meritorious substance in
the probation officer’s recommendation.
I am convinced that
placing the appellant under the care of the commissioner in terms of
section 276(1)(i) will serve a dual purpose.
By imposing this
particular sentence option, the rehabilitative as well as the
retributive objectives of sentencing will be promoted.
It is, of
course, in the interests of justice that the guilty should be
appropriately punished.
[41] In his free and
unfettered discretion, the commissioner will decide how long the
appealing will institutional supervision,
when and how long he may be
placed under residential supervision. The exercise of such discretion
is, of course, subject to legislation
prescripts and regulations.
[41] We have to remind
ourselves that this child has already served 28 months of the
sentence imposed on him on 30 June 2006. By
then he had been
incarcerated for almost 8 months. He has effective been inside for 36
months since 6 November 2008 when he was
arrested. Having considered
al the relevant factors and the circumstances of this case I am
convinced that this sentence in option
will be the least restrictive
the privation of the child’s liberty. It is in the best
interest of this child to and indeed
of the society that he be so
punished.
[42] There are two more
things. It is undesirable to impose one sentence in respect of two
charges, as was done here. Where, for
instance, an appeal succeeds in
respect of one charge but fails in respect of the other, the
composite sentence does create an
unnecessary practical problems.
Instead of taking two offences together and treating them as one for
the purpose of sentencing,
it is advisable to rather impose a
separate sentence in respect of each separate offence and direct that
the two sentences should
run concurrently. This is the one thing.
[43] The other thing is
this: The accused was charged housebreaking with intent to steal and
theft. In my view he was wrongly charged.
The correct charge, on the
facts, should have been housebreaking with intent to rob and robbery
with aggravating circumstances.
The latter attracts a prescribed
minimum sentence but the former does not. The appellant is entitled
to the less severe of the
two. Seeing that the error favours the
accused and not the state the error cannot be revisited and
rectified. Let it be.
[44] Accordingly, I make
the following order:
44.1 The appeal against
the sentence succeeds.
44.2 The conviction
stands.
44.3 The sentence of 12
(twelve) years imposed on the appellant on 30 June 2009 is set aside
and substituted with the one below.
44.4 The appellant is
sentenced to correctional supervision in terms of section 276(1)(i)
Act 51 of 1977 in respect of each of the
two crimes.
44.5 The sentence shall
be deemed to have been imposed on 30 June 2009.
44.6 The sentences shall
run concurrently.
________________
M. H. RAMPAI, J
I concur.
__________________
J. B. MTHEMBU, AJ
On behalf of the
appellant: Attorney J D Reyneke
Instructed by:
Bloemfontein Justice
Centre
BLOEMFONTEIN
On behalf of respondent:
Adv. A. Bester
Instructed by:
Deputy Director:
Public Prosecutions
BLOEMFONTEIN
/eb