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[2008] ZAWCHC 100
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Oliver v S (A384/2007) [2008] ZAWCHC 100; 2010 (1) SACR 342 (C) (22 January 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO: A384/2007
In
the matter between:
IVOR
DESMOND OLIVER
Appellant
And
THE
STATE
Respondent
JUDGMENT:
22 JANUARY 2008
VAN
REENEN J:
1]
This is an appeal with leave granted by Traverso DJP on 7 February
2007 against the sentence imposed on the appellant by Nel
J on 17
September 2001. By the time leave to appeal was sought the learned
trial judge had already retired.
2]
The appellant (as the second accused) and Rizah Clayton (as the first
accused) were arraigned before Nel, J and two assessors
on two counts
of murder
(counts
1 and 2)
:
five counts of attempted murder
(counts
3, 4, 5, 6 and 7)
;
possession of unlicensed fire-arms
(count
8)
;
and possession of ammunition without being in possession of a
licensed firearm from which such ammunition could be discharged
(count
9)
.
3]
Except for counts 4 and 6 - on which they were acquitted - the
appellant and his co-accused were found guilty on all of the
aforementioned counts.
4]
The appellant was sentenced to an effective period of imprisonment of
25 years and his co-accused to an effective period of 35
years.
5]
In an appeal to a full bench of this court constituted of Hlophe, JP
and Davis and Van Heerden JJ, the sentence of the appellant's
co-accused was reduced to an effective period of 25 years'
imprisonment.
6]
In terms of a directive of the Registrar of this court the
appellant's heads of argument had to be filed on or before 29
November
2007. As such heads were filed only on 3 December 2007 the
appellant's attorney has brought an application for the condonation
of the late filing thereof.
The
condonation of procedural short-comings in the prosecution of an
appeal is dependent on the exercise of a judicial discretion
on the
basis of all the relevant facts with a view to achieving fairness on
the basis of a number of considerations including the
degree of
noncompliance and the applicant's prospect of success. Such
factors are not considered independently but interrelated
and are
weighed, the one against the other.
The
reasons for the delay with the filing of the heads of argument are
that the appellant's present attorneys, for reasons beyond
their
control were at only a late stage notified of the set-down of the
appeal by the previous legal representatives of the appellant
as well
as availability and other administrative problems experienced by the
appellant's present counsel.
The
outcome of the application for condonation will therefore depend upon
an assessment of the explanation that has been placed
before this
court in conjunction with this court's assessment of the appellant's
prospect of succeeding with the appeal.
7]
The appellant's counsel in deference to the firmly established
principle that a court of appeal will not interfere with the sentence
imposed by a trial court unless it is strikingly or disturbingly
inappropriate or tarnished by a material misdirection (See: S
v
Malgas 2001(1) SACR 469 SCA at 478 d - h) assailed the sentence
imposed on the basis of certain enumerated factors which he submitted
individually and cumulatively constitute misdirections which permit
the reassessment of the sentence imposed by the trial judge
by this
court.
8]
Reduced to its bare essentials the trial court's sentence is assailed
on the basis that the judgment on sentence does not contain
any
reference to the provisions of section 28 of the Constitution of the
Republic of South Africa 1996 (the Constitution) which,
together with
international instruments from which it originated, have brought
about significant changes to the sentencing regime
concerning the
incarceration of juveniles and furthermore does not manifest that
such changes have been given any recognition or
implemented.
9]
Not every misdirection warrants interference with the sentence
imposed by a trial court: it has to be a
material
i.e. which "according to the dictates of justice" engenders
a clear conviction that an error of such a nature, degree
or
seriousness has been committed that it shows directly or indirectly
that the trial court failed to properly or reasonably exercise
its
discretion as regards sentencing (See: S v Kibido 1998(2) SACR 213
(SCA) at 216 h -j). It appears to be trite that a misdirection
is
material if the trial court has misconstrued the facts; has failed to
take cognisance of factors that should have been taken
into account;
or it has over- or under-emphasised an accused's personal
circumstances in relation to other relevant factors (See:
S v Brand
1998(1) SACR 296 (C) at 303 e - j and the decided cases there
referred to).
10]
Until the advent of the present constitutional dispensation criminal
courts failed to treat the sentencing of child offenders
i.e. persons
under the age of 18 years, as a separate and compartmentalised field
of judicial activity (See: Brandt v S
[2005] 2 All SA 1
SCA at
paragraph 14). They, in applying the well-known three factors
enumerated in S v Zinn 1969(2) SA 537 (A) and in pursuing
the
well-known traditional aims of punishment merely gave recognition to
an offender's youthfulness as a weighty mitigating factor
in the
assessment of his or her moral culpability (See eg: S v Lehnberg en
'n Ander 1975(4) SA 553 (A). That approach was predicated
on an
acknowledgement of the immaturity and vulnerability of juveniles to
negative influences because of their impressionability
as well as a
recognition of the need for the expeditious rehabilitation and
reintegration of such offenders into society.
11]
Since the adoption of the Constitution the principles of sentencing
which had until then underpinned the aforementioned traditional
approach regarding the sentencing of youthful offenders needed to be
adapted and applied in order to give effect to the sentencing
regime
encompassed therein, more particularly the provisions of section 28
which have their origins in those international instruments
enumerated in S v Nkosi 2002(1) SACR 135 (W) at paragraph 13; Brandt
v S (supra) at paragraph 15 and 16; and Director of Public
Prosecutions, Kwazulu-Natal v P 2006(3) SA 515 (SCA) at paragraph 1
5).
12]
In the last-mentioned case Mthiyane JA (at paragraph 18) came to the
conclusion, on the basis of the provisions of section 28(1
)(g) of
the Constitution and international instruments, that the ambit and
scope of sentencing as regards of juvenile offenders
require to be
widened in order to give effect to the principles that juvenile
offenders are "not to be detained except as
a measure of last
resort" and that if incarceration is unavoidable it should be
"only for the shortest appropriate period
of time" and that
a child's best interests are of paramount importance in any matter
concerning him or her,
13]
Ponnan AJA in Brandt's case (at paragraphs 19 and 20) held that in
the sentencing of juvenile offenders presiding officers should
be
guided by certain principles including the principle of
proportionality; the best interests of the child; and the least
possible
restrictive deprivation of his or her liberty and then only
as a measure of last resort and for the shortest possible period of
time. Sachs Jin S v M (Centre for Child Law as Amicus Curiae) 2007(2)
SACR 539 (CC) (at paragraph 33) came to the conclusion that
the
requirements of the Constitution as regards the sentencing of
children necessitate "a degree of change in judicial mindset"
directed at the paying of focussed and informed attention to the
interests of the child at appropriate moments in the sentencing
process with the object of ensuring that judicial officers are in a
position to adequately balance all the varied interests that
are
involved. The learned judge (at paragraph 40) said that the real
difficulty is how to appropriately and on a case-by-case basis
balance the factors enumerated in Zinn's case (supra) without
disregarding the peremptory provisions of section 28 of the
Constitution
and that it requires a nuanced weighing of all the
interlinked factors in every case. The learned judge in that case -
which
concerned the best interests of children in the context of the
imposition of imprisonment on their primary care-giver - categorised
the failure on the part of the lower court to have paid sufficient
independent and informed attention to the impact on the children
of
incarcerating their primary care-giver, as required by section 28(2)
read with section 28(1)(b) of the Constitution, as a misdirection
of
such severity that it was entitled to interfere with the sentence
imposed by the court a quo.
14]
It would appear that the basis on which the appellant's counsel
assails the sentence imposed by the learned trial judge finds
support
in the Constitutional Court's approach in S v M (supra).
1
5] It appears from a careful perusal of the learned trial judge's
judgment on sentence that there is absolutely no reference therein
to
the imperative provisions of section 28 of the Constitution. Nor is
there any trace therein of an informed and nuanced weighing
of all
the interlinking factors of relevance to the sentencing process and
indicative of a changed judicial mindset consonant with
an awareness
of or an application of the provisions of the Constitution regarding
the sentencing of juveniles. What is of significance
in that regard
is that despite the social worker's recommendation that the appellant
should be detained in facilities for juveniles
because he was younger
than 18 years at the time he was sentenced no directions were given
that he be detained apart from persons
older than that age. We in
the circumstances are driven to conclude that the learned trial judge
committed a misdirection. In
the circumstances this court is at large
to consider what an appropriate sentence would be.
16]
That enquiry is facilitated by the fact that there are no disputes of
fact between counsel for the appellant and counsel for
the state and
that the latter has conceded - in our view fairly and correctly -
that the sentence imposed by the trial judge should
be reconsidered
and reduced.
17]
What an appropriate sentence will be in respect of the appellant must
be determined with reference to his personal circumstances,
the
nature and seriousness of the offences of which he has been convicted
and the interests of society as well as the imperative
provisions of
the constitution as regards the sentencing of juvenile offenders.
What
must however be borne in mind is that the provisions of the
Constitution relating to the sentencing of juveniles are not absolute
(See: S v M (supra) at paragraph 26; Director of Public Prosecutions,
KwaZulu-Natal v P at paragraph 19) but subject to limitation
in
appropriate circumstances, such as where a presiding officer is
satisfied that imprisonment is justifiable by "the seriousness
of the offence, the protection of the community and the severity of
the impact of the offence on the victim" (See: S v Nkosi
(supra)
at 147 d - e).
If
regard is had to the appellant's personal circumstances; the
seriousness of and the circumstances of the commission of the crimes
of which he has been convicted - it was clearly a gang-related
revenge killing; and the interests of the community,
the need
for long-term incarceration in our view trumps the imperative
provisions of section 28 of the Constitution. Accordingly
the
imposition of long-term imprisonment is called for in the appellant's
case. The only question is what the duration thereof
should be,
bearing in mind that the provisions of section 28(1)(g) require that
it should be for the shortest appropriate period
of time.
18]
Bearing in mind that those factors which justified that the appellant
be treated more leniently than his co-accused such as
that he was
younger; is of a personality type making him more susceptible of
yielding to peer pressure; and was found to be more
suitable for
rehabilitation still prevail, it appears to be self-evident that the
appellant's period of imprisonment needs to
be less than the
effective period of 25 years imposed on his co-accused on appeal to
this court. The question that needs to be
resolved is how much less?
19]
Those factors which prompted the learned trial judge to sentence the
appellant to a period of imprisonment which was 10 years
less than
the period imposed upon his co-accused still apply. It accordingly
appears to be logical that the period of imprisonment
which is to be
imposed upon him should reflect a differentiation with that imposed
in respect of his co-accused of roughly the
same order. Having regard
to that consideration and using the sentence imposed in respect of no
less brutal offences in, for instance
S v Nkosi as a rough guide, I
incline to the view that the appropriate period the appellant should
spend in jail is an effective
period of 1 8 years.
20]
It follows from the aforegoing that the appellant has succeeded in
showing a reasonable prospect of success on appeal and that,
as the
explanation proffered for the delay in filing the heads of argument
are adequate, an order is granted in terms of prayer
1 of the notion
of motion in the application for condonation.
21]
Accordingly -
21.1]
The application for the condonation of
the
late filing of the appellant's heads of argument is granted.
21.2]
The appeal against the sentences imposed on the
appellant succeeds and the following order is made
thereanent in substitution of the sentences imposed by the trial
court:
"Klagte
1:
12
(twaalf) jaar gevangenisstraf
Klagte
2:
8
(agt) jaar gevangenisstraf
Klagte
3:
4
(vier) jaar gevangenisstraf
Klagte
5:
4
(vier) jaar gevangenisstraf
Klagte
7:
4
(vier) jaar gevangenisstraaf
Klagtes
8
en
9 word saamgeneem vir doeleindes van vonnis: (twee) jaar
gevangenisstraf.
2
(twee) jaar van die gevangenisstraf wat op klagte 2 opgele is en die
geheel van die gevangenisstraf wat op klagtes 3, 5, 7,
8 en 9 opgele
is sal saamloop met die gevangenisstraf wat op klagte 1 opgele is.
'n Totaal dus van 18 (agtien) jaar gevangenisstraf."
D.
VAN REENEN
GRIESEL,
J:
I
agree.
B.M.
GRIESEL
ZONDI,
J:
I
agree.
D H ZONDI