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[2008] ZAWCHC 245
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Pilikane v S (A157/2008) [2008] ZAWCHC 245 (15 August 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAFE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO:
A157/2008
DATE:
15
AUGUST 2008
In
the matter between:
LUCKY
PILIKANE
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
MOOSA,
J
Appellant
has been convicted in the Regional Court, Wynberg, on a charge of
attempted murder and sentenced to seven years imprisonment.
The
appellant now comes on appeal to this court, having been granted
leave to appeal against the sentence only.
The
grounds of appeal in respect of sentence are firstly, that the
sentence is shockingly inappropriate, given the appellant's
youth
and secondly, that the magistrate erred in not considering other
sentencing options with the emphasis being on rehabilitation.
The
court
a
quo
in
granting the leave to appeal against the sentence said:
"I
think seven years imprisonment fits in perfectty well with this type
of reckless shooting in a neighbourhood where a person
is injured,
but I will indeed grant the application as I
cannot
with a clear conscience state that there is no chance that another
Court cannot come to a different decision regarding
the sentence."
The
Court
a
quo
in
refusing bail pending the appeal said:
The
Court is, however, of the opinion that there is no chance that any
other sentence than direct imprisonment will be imposed
on appeal if
the sentence is not confirmed on appeal. If the High Court
interferes with this Court's sentence, I respectfully
submit that
the only other sentence would be slightly shorter than seven years."
Although
the appellant pleaded not guilty to the charge of attempted murder,
he made certain written admissions in terms of
Section 220
of the
Criminal Procedure Act 51 of 1977
, which effectively amounted to a
plea of guilty. In such written admissions he said:
"I
admit that on or about the 24 day of September 2006 and at or near
Gugulethu in the Regional Division of the Western Cape,
I did
unlawfully and intentionally attempt to kill Michael Msadu, a male,
by shooting him with a firearm and wounding him in
the leg.''
In
the written admissions, the appellant goes on further to explain the
events leading to the shooting:
"The
events leading to this incident were that I had a fight with Michael
and he and his friends shot at me a week before
this particular
incident. So when I later confronted him, I was armed and when he
moved, I shot at him. I admit that ! was not
sure whether he was
armed or not, but I shot at him nevertheless. I know and admit that
I should have foreseen that the bullet
could have resulted in his
death..."
Michael
Msadu ("Michael") admitted in his evidence that there was
an altercation between him, his family members and
the appellant a
week prior to this particular incident, during which a firearm was
produced by him and his family members. It
appears, therefore, that
there was some form of confrontation a week earlier.
From
the evidence it appears that the appellant only discharged one
bullet, which hit Michael in the finger and the hip. The bullet
ricocheted and hit Thomzama Zama Siko ("Thomzama"). It is
common cause that they did not suffer any permanent injuries.
The
bullet, however, is still lodged in the body of Thomzama. The
appellant was found not guilty on another charge of attempted
murder
relating to Thomzama.
Adv
De
la Rey,
who
appeared before us, submitted that the trial court did not properly
consider that appellant was a first offender and a youth,
that the
magistrate placed insufficient weight on these factors when
considering sentence. Adv
Maartens,
in
my view, correctly pointed out that in view of the appellant's youth
and the fact that he is economically active and contributes
to the
household, that more information concerning his personal
circumstances should have been placed on record. He suggested
a
probation officer's report would have of been of assistance.
It
appears that at the time of the incident the appellant was 20 years
old and as such a youthful offender. He was also a first
offender.
He effectively pleaded guilty. There was a previous confrontation
between the appellant and the complainant and members
of his family.
In such confrontation the complainant or members of his family
produced a firearm. There is no evidence that complainant
suffered
any permanent injuries.
In
S
v Jansen
in
1957 (1) SA 425
(A) at 427H - 428A, the learned judge said the
following:
"In
the case of a juvenile offender, it is above all necessary for the
Court to determine what appropriate form of punishment,
in the
peculiar circumstances of the case, best serves the interests of
society as well as the interests of the juvenile. The
interests of
society cannot be served by disregarding the interests of the
juvenile, for a mistaken form of punishment might
easily result in a
person with a distorted or more distorted personality being
eventually returned to society."
Similar
sentiments were expressed by
Steyn,
J
in
S
v Adams
,
1971 (4) SA 125
(C) at 126H:
"Die
regspleging verg steeds die grootste voorsorg en versigtigheid by
die vasstelling van 'n geskikte straf, maar dit verg
dit
in
'n
besondere mate waar met jeugdiges gehandel word. Die moontlikheid
van hervorming is by die jeug soveel meer aktueel en die
gevolg van
J
n
onoorwoe
uitoefening van 'n diskresie deur die voorsittende beampte kan
soveel meer onherstelbare skade meebring in die geval
van 'n
jeugdige"
The
presiding magistrate, when granting leave to appeal, was alive to
the possibility that the sentence could be shortened on
appeal. Adv
Maartens,
for
the State, expressed similar views when he submitted that it is
undesirable that a juvenile who is a first offender should
be
sentenced to seven years imprisonment, but said that the sort of
conduct displayed by appellant should be firmly discouraged.
I
agree with Adv
De
la Rey
that
the appellant was convicted of a very serious offence. This offence
attracts a minimum sentence of five years imprisonment
in the
absence of substantial and compelling circumstances to the contrary.
However, the appellant was not informed that the
provisions of the
General Law Amendment Act, 105 of 1997 would apply. In the
circumstances, the provisions would not apply, see
S
v Ndlovo
,
2003 (1) All SA, 66
(SCA) at page 71F - G. In any event, even if the
provisions of this Act did apply, there are sufficient factors rn
favour of
the appellant to qualify as substantial and compelling
circumstances to depart from the prescribed minimum sentence.
I
also agree with Adv
De
la Rey
that
the presiding magistrate did not give sufficient weight to the fact
that the appellant was a juvenile and a first offender;
he
essentially pleaded guilty; showed a degree of remorse; there was no
premeditation; there was an element of provocation; he
was
economically active and contributed to the household expenses. These
circumstances should have impelled the magistrate to
consider
imposing a shorter sentence or suspending a portion of the sentence.
In that regard I am of the view that the magistrate
misdirected
himself.
In
the light of all the circumstances I think an appropriate sentence
would be a term of imprisonment because of the seriousness
of the
offence, and a portion suspended because he is a juvenile and a
first offender. The suspended portion of the sentence
would serve as
a sword of Damocles to discourage him from repeating the offence.
It
is ordered that
3
(THREE) YEARS OF THE 7 (SEVEN) YEARS IMPRISONMENT IMPOSED ON THE
APPELLANT BE SUSPENDED FOR A PERIOD OF 5 (FIVE) YEARS ON CONDITION
THAT HE IS NOT CONVICTED DURING THE PERIOD OF SUSPENSION OF MURDER,
ATTEMPTED MURDER OR ASSAULT WETH INTENT TO DO GRIEVOUS BODILY
HARM.
MOOSA,
J
I
agree.
OLIVER,
A J