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[2003] ZAWCHC 86
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S v Sikrenya and Others (SS183/03) [2003] ZAWCHC 86 (12 August 2003)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, HELD AT CAPE TOWN)
CASE NUMBER
:
SS183/03
DATE
:
12
AUGUST 2003
In die saak tussen:
THE STATE
en
1.
SIYABONGIA SIKRENYA
2.
DUMISANI BOQUANA
3.
NKOSUBONGILE DYANTYI
SENTENCE
GRIESEL, R
:
The three accused were yesterday
convicted of (1) murder; (2) robbery with aggravating circumstances;
(3) & (4) two counts of
kidnapping; and (5) & (6) two counts
under the Arms and Ammunitions Act, 75 of 1969. The facts on which
these charges were
based are fully set out in our judgment and it is
not necessary to repeat them for purposes hereof.
When it comes to sentence, the court
must have regard to three principal factors, namely:
(a) the personal circumstances
of the individual accused;
(b) the seriousness of the crimes in
question; and
(c) the interests of society.
With regard to the counts of murder
and robbery with aggravating circumstances, the court must also have
regard tp the provisions
of the
Criminal Law Amendment Act, 105 of
1997
.
In respect of murder,
sec 51(1)(a)
,
read with
Part I
of Schedule 2 of the Act provides for a compulsory
sentence of life imprisonment to be imposed,
inter
alia
when -
it was planned or premeditated; or
the death of the victim was caused
by the accused in committing or attempting to commit or after having
committed or attempted
to commit robbery with aggravating
circumstances as defined in section 1 of the Criminal Procedure Act;
or
•
the
offence was committed by a person, group of persons or syndicate
acting in the execution or furtherance of a common purpose
or
conspiracy.
It is clear that the murder of which
the accused have been convicted, falls within all three categories.
As regards the count of robbery, sec
51(2)(a), read with Part II of Schedule 2 of the Act provides for a
compulsory sentence of
15 years imprisonment to be imposed when there
are aggravating circumstances or when it involves the taking of a
motor vehicle.
Again it is clear the present crime
complies with both these requirements. The crucial question for
consideration, therefore, is
whether or not there are substantial and
compelling circumstances which justify the imposition of a lesser
sentence than the sentence
prescribed as comtemplated by the Act.
In the case of
S
v Malqas
2001(1)
SACR 469 the Supreme Court of Appeal laid down certain guidelines to
be followed by the court in considering whether or
not substantial
and compelling circumstances exist. The Court
inter
alia
said the
following with regard to these concepts:
"Whatever nuances of meaning may
lurk in those words, their central thrust seems obvious. The
specified sentences were not
to be departed from lightly and for
flimsy reasons which could not withstand scrutiny. Speculative
hypotheses favourable to the
offender, maudlin sympathy, aversion to
imprisoning first offenders, personal doubts as to the efficacy of
the policy implicit
in the amending legislation, and like
considerations were equally obviously not intended to quality as
substantial and compelling
circumstances. Nor were marginal
differences in the personal circumstances or degrees of participation
of co-offenders which, but
for the provisions, might have justified
differentiating between them."
Later
in the judgment, the learned judge said the following:
"If the sentencing court on
consideration of the circumstances of the particular case is
satisfied that they render the prescribed
sentence unjust in that it
would be disproportionate to the crime, the criminal and the needs of
society, so that an injustice
would be done by imposing that
sentence, it is entitled to impose a lesser sentence."
As far as the personal circumstances
of the accused are concerned, all three of them gave evidence in
mitigation of sentence. All
three share certain features in common:
all of them are first offenders; all three come from the Transkei in
the Eastern Cape from
deprived and impoverished circumstances.
Accused 1 and 3 have advanced at school to Grade 12 and 11
respectively. All of them came
to the Western Cape to look for work,
but were unemployed at the time of the commission of the offences.
All of them had dependants
back home, whom they were supporting.
At the same time, none of them have
shown any remorse for the crimes that they have committed. Accused 1
and 3 stil! maintain that
they are innocent of any wrongdoing, while
accused 2 told the court that he feels "bitter" over what
had happened. He
claimed that it happened under "verswarende
omstandighede", as it was put, by which he presumably meant
"versagtende
omstandighede".
It is true, as was submitted by
counsel on behalf of the accused that they - like a vast section of
our society - lived in conditions
of abject poverty. This argument,
however, can be turned on its head, because, as Mr
Wolmarans
on behalf of the State rightly pointed out. the vast majority of
people living under those conditions do not resort to crime in
order
to make a living. Were it otherwise, or were crimes of violence to be
condoned on these grounds, it is clear that we would
be living in
state of complete anarchy.
This brings me to the crimes of which
the accused have been convicted, which include some of the most
serious crimes known to our
law. Counsel for the defence, who said
everything that could be said in favour of the accused, argued that
the crimes could have
been so much worse, for example, the accused
could have killed or robbed the innocent passengers as well. I agree
with counsel
for the State that the accused hardly deserve credit for
not having killed or robbed more people or for not executing their
common
purpose with greater skill and professionalism.
What aggravates the crimes in
question, are the following facts: firstly, that the crimes have been
premeditated and preplanned;
secondly, that the accused
deliberately chose a "soft target", like a taxi, which
inevitably accepts strangers to enter
the vehicles. Taxis provide an
indispensable service in society and they are entitled to the full
protection of the law in providing
that service.
Next,
there is the fact that the deceased in this case offered no
resistance to the attempts of the accused to rob him of his father's
brand new vehicle. All he wanted to do was to try and escape with his
life, but he was not allowed to get away with it. Instead,
he was
shot in the back and killed by accused 1 while accused 2 and 3 held
his hands so as to prevent his escape. It was, therefore,
a
cold-blooded and senseless murder of an innocent victim, who had done
them no harm and who posed no threat to them.
While it is easy at this stage to
look only at the situation of the accused and to consider the
devastating effect that a long
term of imprisonment will have on
each of their lives (of which I am painfully aware), the court
cannot be allowed to forget
or ignore the fact that the life of
another young man with a young family has been prematurely
terminated by the callous deeds
of the accused. No sentence that the
court imposes today can ever return the deceased to his loved ones.
As far as the robbery is concerned,
it is accompanied by aggravating circumstances, because a person's
death has been caused in
the process. Furthermore, it involved the
taking of a motor vehicle. Both forms of robbery have been singled
out by the legislature
for particularly severe punishment. Violent
car-jacking has unfortunately become a everyday feature of life in
our country.
It is easy to commit and extremely difficult to
combat. Were it not for the fact that the minibus in question ran
out of petrol,
coupled with the vigilance of the members of the
police service at Storms River, it is more than likely that the
present crimes
would have become just another statistic in the
police records.
The kidnapping of two innocent
passengers, after they were made to witness these terrible and
traumatic events, is also a serious
crime. I take into account,
however, that they were not deprived of their freedom for a lengthy
period of time and that no actual
physical harm came to them. Counts
3 and 4 will be taken together for purposes of sentence.
With regard to the illegal
possession of the firearm and ammunition, it goes without saying
that it is likewise a very serious
offence. The percentage of
illegal firearms in circulation is astronomically high and literally
every day our courts have to
listen to cases of serious crimes
committed with the aid of illegal firearms. What aggravates the
present crime, is the fact
that the firearm in question is a
sem-automatic weapon, in respect of which the legislature has
prescribed a minimum sentence
of 15 years imprisonment in terms of
the provisions of sec 51(2)(a), read with Part II of Schedule 2 of
the Act Fortunately for
the accused, however, the State has
neither invoked these provisions in the indictment nor
have they been relied
upon in argument before sentence.
In the circumstances, the court has
an unfettered discretion in this regard. In exercising that
discretion, I deem it just to
draw a distinction between the
position of accused 1, on the one hand, and accused 2 and 3 on the
other hand. This is so, because,
in my view, the moral
blameworthiness of the accused 1 as actual possessor of the firearm
and ammunition is greater than that
of the other two accused. Counts
5 and 6 will likewise be taken together for purposes of sentence.
This brings me finally to the
interests of society. It is true, as submitted by Mr
Wolmarans
,
that society has been in the grip of a crime wave for too long now.
It is undoubtedly also true, as submitted on behalf of the
defence,
that much of it is due to the fact that we as a society find
ourselves in a process of transition. Be that as it may,
the State
cannot allow anyone, at this sensitive stage of our evolution as a
democracy, to jeopardise that process by resorting
to crime. It is
for this reason that Parliament has promulgated the Act in question,
to make it clear to everybody that serious
crime must be combated
with all means at the disposal of the State. To this end, heavy
sentences have been prescribed, from which
the courts are not
permitted to deviate, save in the case of truly substantial and
compelling circumstances
Having carefully considered all the
circumstances of the present case, I am of the firm view that there
are no such substantial
and compelling circumstances which may
justify the departure from the minimum sentences prescribed by
Parliament. Taking into
account all the factors mentioned on behalf
of the accused, I am in any event of the view that they are far
outweighed by the
aggravating circumstances which I have mentioned.
I conclude, therefore, that on the facts of this case the prescribed
sentences
are not disproportionate to the crime, the criminal and
the needs of society, nor would an injustice be done by imposing
those
sentences.
In the circumstances, all three of
the accused are sentenced as follows:
Count 1 (murder):
LIFE
IMPRISONMENT
.
Count 2 (Robbery with aggravating
circumstances):
15
(FIFTEEN) YEARS IMPRISONMENT
.
Court 3 and 4 (Kidnapping - both
counts taken together for purposes of sentence):
2
(TWO) YEARS
IMPRISONMENT.
Counts 5 and 6 (Illegal possession
of a firearm and ammunition in contravention of the provisions of
Act 75 of 1969, both counts
taken together for purposes of
sentence):
Accused 1:
3
(THREE! YEARS IMPRISONMENT
Accused 2 & 3:
2
(TWO) YEARS IMPRISONMENT
The sentences on counts 2 to 6 shall
run concurrently with the sentence on count 1,
GRIESEL,
R