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[2006] ZAWCHC 79
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S v Gqasawa and Others (SS52/06) [2006] ZAWCHC 79 (18 May 2006)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE HIGH COURT,
CAPE TOWN)
CASE
NUMBER
: SS52/06
DATE
: 18
MAY 2006
THE
STATE
versus
Z
GQASAWA
STEVEN TOTO
NPUDULA
SIMPHIWE FENI
SENTENCE
FOURIE.
J
:
The three Accused have
been found guilty on two counts namely, count 1, housebreaking with
the intention to commit robbery and robbery
with aggravating
circumstances and count 2, murder.
They
now have to be sentenced and in arriving at an appropriate sentence
the Court is bound to take into account the nature of the
offences
that they committed, their personal circumstances as well as the
interests of the community including the interests of
those that have
been harmed by
these
crimes.
The nature of the
offences was fully dealt with in the judgment on the merits and I do
not intend repeating all of that, but in
summary it should be borne
in mind that the deceased was an elderly man of nearly 77 years who
lived on his own and who was then
overpowered by the accused breaking
into his house. They robbed him of his property, they subdued him by
tying him up and gagging
him with the result that he died.
Murder is the most
serious crime that a human being can commit. The right to life is
sacred; nobody has the right to deprive another
of his or her life.
The deceased was an old retired man and he was entitled to spend his
last years in the peace and comfort
of his home. He was no match for
the three accused who stealthily awaited his return to his home and
thereupon forced themselves
upon him, ransacking his house, robbing
him and causing his death.
We are all aware of the
many instances in which elderly people are attacked, robbed and
killed in their homes. This is yet another
senseless attack upon an
elderly person and the community clearly requires the Courts to
impose heavy sentences in cases like
this. One cannot begin to image
the emotional distress to which the deceased was subjected when he
was tied up and gagged in
this manner, realising that his death was
imminent.
However, in having
regard to the nature of the crimes committed, I should also bear in
mind our finding that the accused did not
enter the house of the
deceased with the intent of killing him, but in gagging and tying
him up they foresaw the possibility
of his death ensuing and
reconciled themselves with that possibility.
The interests of the
family and friends of the deceased also have to be taken into
account. According to the witness Linda Voster,
the deceased's wife
has passed away but he has four children. One can imagine their
grief and sorrow when they heard of the death
of their father in
circumstances where he was tied up, gagged and left to die.
This brings me to the
personal circumstances of the accused. I take into account the
evidence led on your behalf and the submissions
made by your
counsel. You were relatively young at the time that you committed
these offences. I also take into account that
accused 1 and 3 have
no previous convictions. Accused 2, however, has several relevant
previous convictions including robbery,
attempted murder and
housebreaking.
In addition, it should
be borne in mind that the present offences were committed while
accused 2 was out on parole. I am not convinced
that any of the
accused has shown any real remorse for what they have done. It
appears from the evidence that they were brought
to book mainly
through the efforts of the mother of accused 1.
On the prospects of
rehabilitation of the accused, I am also rather pessimistic. Accused
2 has clearly not mended his ways notwithstanding
his previous
encounters with the law. Accused 1 and 3, as first offenders, will
hopefully have more incentive to mend their ways
in future. I should
add that, in my view, there is no merit in the submission made on
behalf of accused 3, that liquor played
a role in the commission of
these offences. There is no evidence to support a finding of this
nature. I do, however, take into
account the fact that the accused
come from a disadvantaged background and had to leave school at
early ages to seek work.
Act 105 of 1997 provides
that where murder is committed in circumstances where the death of
the victim was caused by the accused
in committing robbery with
aggravating circumstances, the Court is obliged to impose a sentence
of life imprisonment. The Act,
however, provides that if the Court
finds that there are substantial and compelling circumstances
justifying a lesser sentence
the Court may impose a lesser sentence
than life imprisonment.
In deciding whether such
circumstances are present the Court has to take into account all the
traditional mitigating factors,
weigh them up and decide whether the
impact thereof is such that it can be described as substantial and
compelling. The Act also
prescribes a minimum sentence of 15 years
imprisonment for robbery with aggravating circumstances which may
also be reduced by
the Court if substantial and compelling
circumstances are found to be present justifying a lesser sentence.
In the case of accused 1
and 3, I am satisfied that there are substantial and compelling
circumstances justifying lesser sentences
than those prescribed by
the Act. In particular, they are both first offenders who should
normally be afforded more leniency
when it comes to sentencing. In
addition, I also consider our finding that the accused did not have
the direct intention to kill
the deceased, to be a factor which
should count in favour of accused 1 and 3. Finally, I also take into
account that on the evidence
it appears that accused 2 was the
leader of the pack and that he persuaded accused 1 and 3 to join him
in this venture.
In the case of accused
2, I am not satisfied that in regard to Count 1, i.e. the count of
housebreaking and robbery with aggravating
circumstances, there are
circumstances justifying a lesser sentence than the prescribed
sentence of 15 years imprisonment. Accused
2 is a frequent offender
and he has previous convictions for robbery and housebreaking.
Although he was relatively young at the
time of the commission of
these offences, namely 20 years, he had been given opportunities in
the past by the Courts to reform
himself, but to no avail. Not even
his release on parole on 12 December 2003, deterred him from
committing these crimes within
five months of his release.
In regard to Count 2,
that is the count of murder, I have only after serious
consideration, concluded that the prescribed sentence
of life
imprisonment should not be imposed on accused 2. In this regard the
fact that he was relatively young at the time of
the commission of
the offence is taken into account. This fact would, on its own, not
in my view have constituted substantial
and compelling
circumstances. However, to this should be added the fact that the
Court found that the accused 2 did not have
the direct intent to
kill the deceased, but that he was killed in circumstances where the
accused foresaw the possibility of
his death eventuating and
reconciled himself therewith.
Had it been proved that
accused 2 had the direct intent to kill the deceased, I would have
had no hesitation in imposing a sentence
of life imprisonment. I am,
however, of the view that the seriousness of the crimes committed,
as well as the fact that the escapade
was premeditated, justify a
long term of imprisonment to be imposed in regard to all three
accused. In view of his previous convictions
and the leading role
which he had played in the events, accused 2 should receive the more
severe sentence.
In deciding upon
appropriate terms of imprisonment, I take into account the fact that
the accused have all spent approximately
two years in prison
awaiting trial. Having regard to all these facts and circumstances,
the accused are sentenced as follows:
Accused 1 and 3, on
Count 1, you are each sentenced to
TEN
(10) YEARS IMPRISONMENT
.
On Count 2 you are each sentenced to
SEVENTEEN
(17) YEARS IMPRISONMENT
.
In terms of
Section 280(2)
of the
Criminal Procedure Act 51 of 1977
it is ordered that the sentences of imprisonment imposed on Counts 1
and 2 are to run concurrently. In the result your effective
sentence
is 17 years imprisonment.
Accused
2, on Count 1 you are sentenced to
FIFTEEN
(15) YEARS IMPRISONMENT
.
On Count 2 you are sentenced to
TWENTY
TWO (22) YEARS IMPRISONMENT
.
In terms of
Section 280(2)
of the
Criminal Procedure Act 51 of 1977
it is ordered that the sentences of imprisonment imposed on Counts 1
and 2 are to run concurrently. Your effective sentence is
accordingly 22 years imprisonment.
FOURIE,
J