About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2001
>>
[2001] ZASCA 30
|
|
S v Malgas (117/2000) [2001] ZASCA 30; [2001] 3 All SA 220 (A); 2001 (2) SA 1222 (SCA); 2001 (1) SACR 469 (SCA) (19 March 2001)
REPORTABLE
THE SUPREME COURT OF
APPEAL
OF SOUTH AFRICA
Case No: 117/2000
In the matter between
HENNA MALGAS Appellant
and
THE STATE Respondent
CORAM
:
HARMS,
MARAIS, CAMERON JJA CHETTY
et
MTHIYANE AJJA
DATE HEARD
:
16
February 2001
DATE DELIVERED
:
19
March 2001
Minimum sentences for
certain serious offences - murder - life imprisonment - s 51(3)(a)
Act 51 of 1977 - substantial and
compelling circumstances
justifying lesser sentence - interpretation of provision.
JUDGMENT
MARAIS JA
MARAIS JA:
[1]
Judicial hostility to legislative prescriptions which strip
courts of their sentencing discretion is hardly surprising.
Given
the infinite variety of circumstances which attend the commission of
crimes, who are better placed than the courts, which
experience daily
the complexities of imposing sentences which are as just as human
fallibility can make them, to understand the
arbitrariness and
potential unjustness of such edicts? Sentencing has rightly been
described as âa lonely and onerous taskâ
1
.
For those who must shoulder that responsibility in societyâs name,
to have to impose a statutorily decreed sentence which is
manifestly
unjust in the particular circumstances of the case is a monstrous
thing.
[2] That said, there is a
significant distinction between, on the one hand, a legislative
provision which does in truth
deprive a court of any sentencing
discretion at all, or so attenuates it that its existence is
illusory, and, on the other, one
which fetters only partially the
exercise of the discretion and leaves it otherwise largely intact.
Ritualistic incantations of
the doctrine of the separation of powers
to justify resistance to
any
form of legislative intervention in this regard seem to me to lack
plausibility. Subject of course to constraints going to substance
imposed by the Constitution, Parliament is obviously empowered to
create new offences and abolish old ones (whether they were
statutorily created or originated in the common law) and to provide
for the penalties courts may impose. It may, and does, limit
the
sentencing powers of courts in a variety of ways. The types of
sentence which may be imposed may be laid down, for example,
those
listed in
s 276
of the
Criminal Procedure Act 51 of 1977
. A maximum
penalty of one kind or another may be specified. Even in those
countries where the doctrine of the separation of powers
is an
article of faith, legislatures have been doing such things for
generations without protest from the judiciary or the citizenry.
No
court exercising criminal jurisdiction in South Africa could
convincingly claim to be the sole constitutional repository of
power
to do such things. Indeed, the courts have no inherent power to do
any such thing. They cannot create new crimes. Nor
can they invent
a new kind of penalty such as, for example, physical detention under
lock and key at some place other than a prison.
[3] What
is
rightly regarded as an unjustifiable intrusion by the legislature
upon the legitimate domain of the courts, is legislation which
is so
prescriptive in its terms that it leaves a court effectively with no
sentencing discretion whatsoever and obliges it to pass
a specific
sentence which, judged by all normal and well-established sentencing
criteria, could be manifestly unjust in the circumstances
of a
particular case. Such a sentencing provision can accurately be
described as a mandatory provision in the pejorative sense
intended
by opponents of legislative incursions into this area.
2
A provision which leaves the courts free to exercise a substantial
measure of judicial discretion is not, in my opinion, properly
described as a mandatory provision in that sense. As I see it, this
case is concerned with such a provision.
[4]
Sections 51
and
53
of the
Criminal Law
Amendment Act 105 of 1997
provide:
â
51. Minimum sentences for
certain serious offences. -
(1)
Notwithstanding any other law but subject to subsections (3) and
(6), a High Court shall, if it has convicted a person of
an offence
referred to in
Part I
of Schedule 2, sentence the person to
imprisonment for life.
(2) Notwithstanding any other law but subject to
subsections (3) and (6), a regional court or a High Court shall -
(a) if it has convicted a person of an offence referred
to in
Part II
of Schedule 2, sentence the person in the case of -
(i) a first offender, to imprisonment for a period not
less than 15 years;
(ii) a second offender of any such offence, to
imprisonment for a period not less than 20 years; and
(iii) a third or subsequent offender of any such
offence, to imprisonment for a period not less than 25 years;
(b) if it has convicted a person of an offence referred
to in
Part III
of Schedule 2, sentence the person, in the case of -
(i) a first offender, to imprisonment for a period not
less than 10 years;
(ii) a second offender of any such offence, to
imprisonment for a period not less than 15 years; and
(iii) a third or subsequent offender of any such
offence, to imprisonment for a period not less than 20 years; and
(c) if it has convicted a person of an offence referred
to in
Part IV
of Schedule 2, sentence the person, in the case of -
(i) a first offender, to imprisonment for a period not
less than 5 years;
(ii) a second offender of any such offence, to
imprisonment for a period not less than 7 years; and
(iii) a third or subsequent offender of any such
offence, to imprisonment for a period not less than 10 years:
Provided that the maximum sentence that a regional court
may impose in terms of this subsection shall not be more than five
years
longer than the minimum sentence that it may impose in terms of
this subsection;
(3)(a) If any court referred to in subsection (1) or
(2) is satisfied that substantial and compelling circumstances exist
which
justify the imposition of a lesser sentence than the sentence
prescribed in those subsections, it shall enter those circumstances
on the record of the proceedings and may thereupon impose such lesser
sentence.
(b) If any court referred to in subsection (1) or
(2) decides to impose a sentence prescribed in those subsections upon
a child
who was 16 years of age or older; but under the age of 18
years, at the time of the commission of the act which constituted the
offence in question, it shall enter the reasons for its decision on
the record of the proceedings.
(4) Any sentence contemplated in this section shall
be calculated from the date of sentence.
(5) The operation of a sentence imposed in terms of
this section shall not be suspended as contemplated in section 297(4)
of
the Criminal Procedure Act, 1977 (Act 51 of 1977).
(6) The provisions of this section shall not be
applicable in respect of a child who was under the age of 16 years at
the time
of the commission of the act which constituted the offence
in question.
(7) If in the application of this section the age
of a child is placed in issue, the onus shall be on the State to
prove the
age of the child beyond reasonable doubt.
(8) (Omitted because immaterial.)â
â
53. Saving. -
(1) Sections 51 and 52 shall, subject to subsections (2) and
(3), cease to have effect after the expiry of two years from
the
commencement of this Act.
(2) The period referred to in
subsection (1) may be extended by the President, with the concurrence
of Parliament, by proclamation
in the
Gazette
for one year at a time.
(3) Any appeal against -
(a) a conviction of an offence referred to in Schedule
2 of this Act and a resultant sentence imposed in terms of section
51; or
(b) a sentence imposed in terms of section 51, shall be
continued and concluded as if section 51 had at all relevant times
been
in operation.â
[5]
Schedule 2 is as follows:
â
PART I
Murder, when -
(a) it was planned or premeditated;
(b) the victim was -
(i) a law enforcement officer performing his or her
functions as such, whether on duty or not; or
(ii) a person who has given or was likely to give
material evidence with reference to any offence referred to in
Schedule 1 to
the Criminal Procedure Act, 1977 (Act 51 of 1977), at
criminal proceedings in any court;
(c) the death of the victim was caused by the accused in
committing or attempting to commit or after having committed or
attempted
to commit one of the following offences:
(i) Rape; or
(ii) robbery with aggravating circumstances; or
(d) the offence was committed by a person, group of
persons or syndicate acting in the execution or furtherance of a
common purpose
or conspiracy.
Rape -
(a) when committed -
(i) in circumstances where the victim was raped more
than once whether by the accused or by any co-perpetrator or
accomplice;
(ii) by more than one person, where such persons acted
in the execution of furtherance or a common purpose or conspiracy;
(iii) by a person who has been convicted of two or more
offences of rape, but has not yet been sentenced in respect of such
convictions;
or
(iv) by a person, knowing that he has the acquired
immune deficiency syndrome or the human immunodeficiency virus;
(b) where the victim -
(i) is a girl under the age of 16 years;
(ii) is a physically disabled woman who, due to her
physical disability, is rendered particularly vulnerable; or
(iii) is a mentally ill woman as contemplated in
section 1 of the Mental Health Act, 1973 (Act 18 of 1973); or
(c) involving the infliction of grievous bodily harm.
PART II
Murder in circumstances other than those referred to in
Part 1.
Robbery -
(a) when there are aggravating circumstances; or
(b) involving the taking of a motor vehicle.
Any offence referred to in section 13 (f) of the Drugs
and Drug Trafficking Act, 1993 (Act 140 of 1992). If it is proved
that -
(a) the value of the dependence producing substance in
question is more than R50 000,00;
(b) the value of the dependence-producing substance in
question is more than R10 000,00 and that the offence was committed
by a
person, group of persons, syndicate or any enterprise acting in
the execution of furtherance of a common purpose or conspiracy;
or
(c) the offence was committed by any law enforcement
officer.
Any offence relating to -
(a) the dealing in or smuggling of ammunition, firearms,
explosives or armament; or
(b) the possession of an automatic or semi-automatic
firearm, explosives or armament.
Any offence relating to exchange control, corruption,
extortion, fraud, forgery, uttering or theft -
(a) involving amounts of more than R500 000,00
(b) involving amounts of more than R100 000,00, if it is
proved that the offence was committed by a person, group of persons,
syndicate
or any enterprise acting in the execution or furtherance of
a common purpose or conspiracy; or
(c) if it is proved that the offence was committed by
any law enforcement officer -
(i) involving amounts of more than R10 000,00; or
(ii) as a member of a group of persons, syndicate or
any enterprise acting in the execution or furtherance of a common
purpose
or conspiracy.
PART III
Rape in circumstances other than those referred to in
Part I.
Indecent assault on a child under the age of 16 years,
involving the infliction of bodily harm.
Assault with intent to do grievous bodily harm on a
child under the age of 16 years.
Any offence in contravention of section 36 of the Arms
and Ammunition Act, 1969 (Act 75 of 1969), on account of being in
possession
of more than 1000 rounds of ammunition intended for firing
in an arm contemplated in section 39 (2)(a)(i) of that Act.
PART IV
Any offence referred to in Schedule 1 to the Criminal
Procedure Act, 1977 (Act 51 of 1977), other than an offence referred
to in
Part I, II. or III of this Schedule, if the accused had with
him or her at the time a firearm, which was intended for use as such,
in the commission of such offence.â
[6] There have been a number
of decisions
3
in which the High Courts have considered the import of the injunction
to impose imprisonment for life upon a person convicted of
an offence
referred to in Part 1 of Schedule 2 (or imprisonment for other
specified periods for offences listed in other parts
of Schedule 2)
unless satisfied that substantial and compelling circumstances exist
which justify the imposition of a lesser sentence.
The
interpretations placed upon the provisions have been discordant and
that necessitates this Court considering the question
afresh in
deciding the outcome of the appeal against sentence in this matter.
In doing so, I have found much of great help in
those judgments for
which I am grateful. Valuable as they are, a dissection and
discussion of each of them would result in an
indigestible judgment.
Instead, I shall approach the problem as if the matter was
res
nova
but with the
advantage of the insights which the reading of those judgments has
given.
[7] First, some preliminary
observations. The provisions are to be read in the light of the
values enshrined in the Constitution
and, unless it does not prove
possible to do so, interpreted in a manner which respects those
values.
4
Due weight must be given to the fact that these provisions were not
intended to be permanent fixtures on the legislative scene
and were
to lapse after two years unless extended annually. (They were put
into operation on 1 May 1998 and were extended for
12 months with
effect from 1 May 2000.) That shows that when conceived they were
intended to be relatively short-term responses
to a situation which
it was hoped would not persist indefinitely. That situation was and
remains notorious: an alarming burgeoning
in the commission of crimes
of the kind specified resulting in the government, the police,
prosecutors and the courts constantly
being exhorted to use their
best efforts to stem the tide of criminality which threatened and
continues to threaten to engulf society.
It was of course open to
the High Courts even prior to the enactment of the amending
legislation to impose life imprisonment in
the free exercise of their
discretion. The very fact that this amending legislation has been
enacted indicates that parliament
was not content with that and that
it was no longer to be âbusiness as usualâ when sentencing for
the commission of the specified
crimes.
[8] In what respects was it
no longer to be business as usual? First, a court was not to be
given a clean slate on which
to inscribe whatever sentence it thought
fit. Instead, it was required to approach that question conscious of
the fact that the
legislature has ordained life imprisonment or the
particular prescribed period of imprisonment as the sentence which
should
ordinarily
be imposed for the commission of the listed crimes in the specified
circumstances. In short, the legislature aimed at ensuring
a severe,
standardised, and consistent response from the courts to the
commission of such crimes unless there were, and could be
seen to be,
truly convincing reasons for a different response. When considering
sentence the emphasis was to be shifted to the
objective gravity of
the type of crime and the publicâs need for effective sanctions
against it. But that did not mean that
all other considerations were
to be ignored. The residual discretion to decline to pass the
sentence which the commission of such
an offence would ordinarily
attract plainly was given to the courts in recognition of the easily
foreseeable injustices which could
result from obliging them to pass
the specified sentences come what may.
[9] Secondly, a court was
required to spell out and enter on the record the circumstances which
it considered justified
a refusal to impose the specified sentence.
As was observed in
Flannery
v Halifax Estate Agencies Ltd
5
by the Court of Appeal, âa requirement to give reasons concentrates
the mind, if it is fulfilled the resulting decision is much
more
likely to be soundly based --- than if it is notâ. Moreover, those
circumstances had to be substantial and compelling.
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 qualify 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. But for the rest I can see no warrant
for deducing that the legislature intended
a court to exclude from
consideration,
ante
omnia
as it were,
any or all of the many factors traditionally and rightly taken into
account by courts when sentencing offenders. The
use of the epithets
âsubstantialâ and âcompellingâ cannot be interpreted as
excluding
even
from consideration
any of those factors. They are neither notionally nor linguistically
appropriate to achieve that. What they are apt to convey,
is that
the ultimate cumulative
impact
of those circumstances must be such as to
justify
a departure. It is axiomatic in the normal process of sentencing
that, while each of a number of mitigating factors when viewed
in
isolation may have little persuasive force, their combined impact may
be considerable. Parliament cannot have been ignorant
of that.
There is no indication in the language it has employed that it
intended the enquiry into the possible existence of substantial
and
compelling circumstances justifying a departure, to proceed in a
radically different way, namely, by eliminating at the very
threshold
of the enquiry one or more factors traditionally and rightly taken
into consideration when assessing sentence. None
of those factors
have been singled out either expressly or impliedly for exclusion
from consideration.
[10] To the extent therefore
that there are
dicta
in the previously decided cases that suggest that there are such
factors which fall to be eliminated entirely either at the outset
of
the enquiry or at any subsequent stage (eg age or the absence of
previous convictions), I consider them to be erroneous. Equally
erroneous, so it seems to me, are
dicta
which suggest that for circumstances to qualify as substantial and
compelling they must be âexceptionalâ in the sense of seldom
encountered or rare. The frequency or infrequency of the existence
of a set of circumstances is logically irrelevant to the question
of
whether or not they are substantial and compelling.
[11] Some of the courts which have had to deal
with the problem have resorted to the processes of thought employed
and
the concepts developed by the courts in considering appeals
against sentence. In my view such an approach is problematical and
likely to lead to error in giving effect to the intention of the
legislature.
[12] The mental process in which courts engage
when considering questions of sentence depends upon the task at hand.
Subject
of course to any limitations imposed by legislation or
binding judicial precedent, a trial court will consider the
particular
circumstances of the case in the light of the well-known
triad of factors relevant to sentence and impose what it considers to
be a just and appropriate sentence. A court exercising appellate
jurisdiction cannot, in the absence of material misdirection by
the
trial court, approach the question of sentence as if it were the
trial court and then substitute the sentence arrived at by
it simply
because it prefers it. To do so would be to usurp the sentencing
discretion of the trial court. Where material misdirection
by the
trial court vitiates its exercise of that discretion, an appellate
court is of course entitled to consider the question
of sentence
afresh. In doing so, it assesses sentence as if it were a court of
first instance and the sentence imposed by the
trial court has no
relevance. As it is said, an appellate court is at large. However,
even in the absence of material misdirection,
an appellate court may
yet be justified in interfering with the sentence imposed by the
trial court. It may do so when the disparity
between the sentence of
the trial court and the sentence which the appellate court would have
imposed had it been the trial court
is so marked that it can properly
be described as âshockingâ, âstartlingâ or âdisturbingly
inappropriateâ. It must
be emphasised that in the latter situation
the appellate court is not at large in the sense in which it is at
large in the former.
In the latter situation it may not substitute
the sentence which it thinks appropriate merely because it does not
accord with
the sentence imposed by the trial court or because it
prefers it to that sentence. It may do so only where the difference
is so
substantial that it attracts epithets of the kind I have
mentioned. No such limitation exists in the former situation.
[13] Some of the courts which have wrestled
with the problems which sections s 51 raises have sought to draw
parallels
between the latter process and the approach to be followed
when applying its provisions. With respect, I consider the attempt
to be misguided. The tests for interference with sentences on appeal
were evolved in order to avoid subverting basic principles
that are
fundamental in our law of criminal procedure, namely, that the
imposition of sentence is the prerogative of the trial
court for good
reason and that it is not for appellate courts to interfere with that
exercise of discretion unless it is convincingly
shown that it has
not been properly exercised. The epithets (âshockingâ,
âstartlingâ, âdisturbingly inappropriateâ
and the like) that
have been employed to drive that point home should not simply be
appropriated indiscriminately for use in a
situation which is very
different.
[14] When applying the
provisions of s 51 a trial court is not in appellate mode. It is not
confronted by a prior exercise
of judicial discretion attuned to the
particular circumstances of the case and which is
prima
facie
to be
respected. Instead, it is faced with a generalised statutory
injunction to impose a particular sentence which injunction
rests,
not upon all the circumstances of the case including the personal
circumstances of the offender, but simply upon whether
or not the
crime falls within the specific categories spelt out in Schedule 2.
Concomitantly, there is a provision which vests
the sentencing court
with the power, indeed the obligation, to consider whether the
particular circumstances of the case require
a different sentence to
be imposed. And a different sentence must be imposed if the court is
satisfied that substantial and compelling
circumstances exist which
âjustifyâ
(my emphasis) it. In considering that question the trial court is
doing so for the first time. There has been no prior consideration
of the particular circumstances of the case by either the legislature
or another court. There is thus no justification for arbitrarily
importing into the exercise a test which was evolved in a very
different context and which was designed to serve a very different
purpose.
[15] I consider the
dicta
in the cases which advocate such an approach to the application of s
51 to be conducive to error. In my view, they constrict
unjustifiably the power given to a trial court by s 51 (3) to
conclude that a lesser sentence is justified. Any limitations upon
that power must be derived from a proper interpretation of the
provisions of the Act and not from the assumption
a
priori
that only a
process akin to that which a court follows when in appellate mode is
intended.
[16] It is of course so that
satisfaction of the test which that process postulates would also
justify the conclusion
that a departure from the prescribed sentence
is justified. The problem is that it by no means follows that simply
because that
test is not satisfied, a departure is
ipso
facto
unjustified.
In other words, while satisfaction of that test is certainly a
sufficient
justification for departure, satisfaction of it is not
necessary
to justify departure. The use of the test tends to obscure that.
Hence its potential to lead one into error.
[17] On the other hand, it seems clear that
those who have decried the suggestion that the exercise required
involves no
more than assessing what, but for the legislation, would
have been an appropriate sentence and, if that should be anything
less
than the prescribed sentence, regarding that as sufficient
justification for departure, are right. As they have pointed out,
that
approach would obviously represent a return to what I have
called âbusiness as usualâ and no effect whatsoever would be
given
to the intention of the legislature.
[18] Here lies the rub.
Somewhere between these two extremes the intention of the legislature
is located and must be found.
The absence of any pertinent guidance
from the legislature by way of definition or otherwise as to what
circumstances should rank
as substantial and compelling or what
should not, does not make the task any easier. That it has refrained
from giving such guidance
as was done in Minnesota from whence the
concept of âsubstantial and compelling circumstancesâ was
derived
6
is significant. It signals that it has deliberately and advisedly
left it to the courts to decide in the final analysis whether
the
circumstances of any particular case call for a departure from the
prescribed sentence. In doing so, they are required to
regard the
prescribed sentences as being
generally
appropriate
for
crimes of the kind specified and enjoined not to depart from them
unless they are satisfied that there is weighty justification
for
doing so. A departure must be justified by reference to
circumstances which can be seen to be substantial and compelling as
contrasted with circumstances of little significance or of debatable
validity or which reflect a purely personal preference unlikely
to be
shared by many.
[19] There has been some uncertainty as to
whether the words âsubstantial and compellingâ are to be examined
separately
or conjointly in attempting to arrive at Parliamentâs
intention and in applying them to the particular circumstances of a
case.
In my opinion it is a barren exercise to subject each to
intense scrutiny on its own devoid of the influence of its neighbour.
The legislature refrained from using the word âorâ in favour of
the word âandâ and has thus provided a composite description
of
the circumstances which can justify a departure from the prescribed
sentences. What Parliament requires is that the circumstances
should
meet the test of the composite description.
[20] It would be an impossible task to attempt
to catalogue exhaustively either those circumstances or combinations
of
circumstances which could rank as substantial and compelling or
those which could not. The best one can do is to acknowledge that
one is obliged to keep in the forefront of oneâs mind that the
specified sentence has been prescribed by law as the sentence
which
must be regarded as ordinarily appropriate and that personal distaste
for such legislative generalisation cannot justify
an indulgent
approach to the characterisation of circumstances as substantial and
compelling. When justifying a departure a court
is to guard against
lapses, conscious or unconscious, into sophistry or spurious
rationalisations or the drawing of distinctions
so subtle that they
can hardly be seen to exist.
[21] It would be foolish of
course, to refuse to acknowledge that there is an abiding reality
which cannot be wished away,
namely, an understandable tendency for a
court to use, even if only as a starting point, past sentencing
patterns as a provisional
standard for comparison when deciding
whether a prescribed sentence should be regarded as unjust. To
attempt to deny a court the
right to have any regard whatsoever to
past sentencing patterns when deciding whether a prescribed sentence
is in the circumstances
of a particular case manifestly unjust is
tantamount to expecting someone who has not been allowed to see the
colour blue to appreciate
and gauge the extent to which the colour
dark blue differs from it. As long as it is appreciated that the
mere existence of
some
discrepancy between them cannot be the sole criterion and that
something more than that is needed to justify departure, no great
harm will be done.
[22] What that something more must be it is not
possible to express in precise, accurate and all-embracing language.
The
greater the sense of unease a court feels about the imposition of
a prescribed sentence, the greater its anxiety will be that it
may be
perpetrating an injustice. Once a court reaches the point where
unease has hardened into a conviction that an injustice
will be done,
that can only be because it is satisfied that the circumstances of
the particular case render the prescribed sentence
unjust or, as some
might prefer to put it, disproportionate to the crime, the criminal
and the legitimate needs of society. If
that is the result of a
consideration of the circumstances the court is entitled to
characterise them as substantial and compelling
and such as to
justify the imposition of a lesser sentence.
[23] While speaking of injustice, it is
necessary to add that the imposition of the prescribed sentence need
not amount
to a shocking injustice (âân skokkende onregâ as it
has been put in some of the cases in the High Court) before a
departure
is justified. That it would be an injustice is enough.
One does not calibrate injustices in a court of law and take note
only
of those which are shocking.
[24] It has been suggested that the kind of
circumstances which might qualify as substantial and compelling are
those which
reduce the moral guilt of the offender (analogously to
the circumstances considered in earlier times to be capable of
constituting
âextenuating circumstancesâ in crimes which
attracted the sentence of death). That will no doubt often be so but
it would
not be right to suppose that it is only factors diminishing
moral guilt which may rank as substantial and compelling
circumstances.
[25] What stands out quite clearly is that the
courts are a good deal freer to depart from the prescribed sentences
than
has been supposed in some of the previously decided cases and
that it is they who are to judge whether or not the circumstances
of
any particular case are such as to justify a departure. However, in
doing so, they are to respect, and not merely pay lip service
to, the
legislatureâs view that the prescribed periods of imprisonment are
to be taken to be ordinarily appropriate when crimes
of the specified
kind are committed. In summary -
A Section 51 has limited but not eliminated the courtsâ
discretion in imposing sentence in respect of offences referred to in
Part 1 of Schedule 2 (or imprisonment for other specified periods for
offences listed in other parts of Schedule 2).
B Courts are required to approach the imposition of
sentence conscious that the legislature has ordained life
imprisonment (or the
particular prescribed period of imprisonment) as
the sentence that should
ordinarily
and in the absence of
weighty justification be imposed for the listed crimes in the
specified circumstances.
C Unless there are, and can be seen to be, truly
convincing reasons for a different response, the crimes in question
are therefore
required to elicit a severe, standardised and
consistent response from the courts.
D The specified sentences are not to be departed from
lightly and for flimsy reasons. Speculative hypotheses favourable to
the
offender, undue sympathy, aversion to imprisoning first
offenders, personal doubts as to the efficacy of the policy
underlying
the legislation, and marginal differences in personal
circumstances or degrees of participation between co-offenders are to
be
excluded.
E The legislature has however deliberately left it to
the courts to decide whether the circumstances of any particular case
call
for a departure from the prescribed sentence. While the
emphasis has shifted to the objective gravity of the type of crime
and
the need for effective sanctions against it, this does not mean
that all other considerations are to be ignored.
F All factors (other than those set out in D above)
traditionally taken into account in sentencing (whether or not they
diminish
moral guilt) thus continue to play a role; none is excluded
at the outset from consideration in the sentencing process.
G The ultimate impact of all the circumstances relevant
to sentencing must be measured against the composite yardstick
(âsubstantial
and compellingâ) and must be such as cumulatively
justify a departure from the standardised response that the
legislature has
ordained.
H In applying the statutory provisions, it is
inappropriately constricting to use the concepts developed in dealing
with appeals
against sentence as the sole criterion.
I 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.
J In so doing, account must be taken of the fact that
crime of that particular kind has been singled out for severe
punishment and
that the sentence to be imposed in lieu of the
prescribed sentence should be assessed paying due regard to the bench
mark which
the legislature has provided.
[26] I turn to the merits of the present appeal
against sentence. Appellant, a 22 year old woman, was convicted by
Liebenberg
J in the South Eastern Cape Local Division of the High
Court of murder and sentenced to imprisonment for life. Leave to
appeal
to this Court against her sentence was granted by the court
a
quo.
At the instigation of his wife, appellant shot the deceased
in the head while he lay asleep at his home. The circumstances which
led up to that were these. Appellant had been living for about a
month in the deceasedâs house together with him, his wife Carol
and
their children. Precisely what the nature of appellantâs
relationship with the deceased was is unclear. However, she
testified
that the night before the deceased was shot he had struck
her because he believed that she had been sexually involved with
another
man. The relationship between the deceased and his wife was
stormy and many quarrels had taken place. The deceasedâs wife had
allegedly been unfaithful to him with various other men. On the
night that appellant was struck by the deceased Carol told her
that
she intended to shoot the deceased. Carol had been upset by the
incident.
[27] On the day of the shooting a quarrel
between the deceased and Carol took place. Later the deceased told
appellant
that he loved her. She replied that she wished to have
nothing to do with him. He produced a firearm and locked himself in
the
bathroom where he fired a shot causing Carol and appellant to
think he had committed suicide. When told by appellant that she and
Carol were going to âdrink pillsâ he emerged from the bathroom
unscathed. Friends of the deceased arrived and whisky was consumed
until approximately 1.30 am when the friends left. Thereafter
appellant, Carol and the deceased all lay upon the same bed. The
deceased fell asleep and Carol roused him and gave him two pills to
drink. The deceased fell asleep again and snored so loudly
that
appellant went to lie down in another room.
[28] Shortly after 3.00 am Carol woke appellant
and handed her a pair of gloves, a jersey and a firearm which she had
loaded
and cocked. Appellant was told to don the gloves so that her
fingerprints would not appear on the firearm and also to prevent any
traces of gunpowder from being deposited upon her hands. She was
told to wear the jersey so that any gunpowder marks and traces
of
blood would not be deposited upon her night attire. Carol told her
to repair to their bedroom and to shoot the deceased. She
referred to
her life with the deceased as âân hond se leweâ. Appellant
knelt alongside the deceased and levelled the firearm
at his head.
She could not bring herself to fire the shot and stood up again.
After further persuasion by Carol she knelt alongside
the bed again
and once again trained the weapon upon the deceased. Again she could
not bring herself to fire the shot. When she
rose to her feet Carol
told her that she had to shoot the deceased or she would burn the
house down with petrol. She also said
that if appellant shot the
deceased she, Carol, and Carolâs children would thereafter be able
to lead âân baie lekker leweâ.
Carol also reminded her that
the deceased had struck her the previous evening and that that should
serve as an incentive to her
to shoot him. The appellant once again
knelt alongside the deceased and pointed the firearm at his head.
Carol said that she
would indicate when the shot should be fired.
When Carol said to her âHenna nou!â she fired a shot and the
deceased was struck
in the head. He died soon thereafter.
[29] With the co-operation of appellant Carol
thereafter attempted to pass off what had occurred as an act of
suicide committed
by the deceased. Some time thereafter appellant
confessed first to a friend and thereafter to a member of the South
African Police
who was also a friend that she had shot the deceased.
That led to her arrest and trial.
[30] Liebenberg J gave anxious consideration to
the question of sentence and concluded that the circumstances of the
case
could not be regarded as substantial and compelling in their
mitigatory effect and therefore such as to justify the imposition of
a lesser sentence than imprisonment for life. He reached that
conclusion with regret and said that if it had not been for the
fact
that a sentence of life imprisonment was prescribed by the relevant
statute, he would not have considered sentencing appellant
to
imprisonment for life. He referred to the lack of unanimity in the
provincial divisions of the High Court as to the
correct
interpretation of the legislation and regarded himself as bound
by the approach indicated by Stegmann J
in
S v Mofokeng
which approach had been approved by Jones J in an unreported
decision in the Eastern Cape Division. He indicated that he was, in
any event, in agreement with that approach. One of the findings made
by Stegmann J in
Mofokengâs
case was that âfor substantial
and compelling reasons to be found, the facts of the particular case
must present some circumstance
that is so exceptional in its nature
and that so obviously exposes the injustice of the statutory
prescribed sentence in the particular
case, that it can rightly be
described as âcompellingâ the conclusion that the imposition of a
lesser sentence than that prescribed
by Parliament is justifiedâ.
[31] As I have indicated earlier in this
judgment the requirement that the circumstances be âexceptionalâ
does not
appear from the legislation and, in so far as Liebenberg J
approached the question of sentence from that perspective, he erred.
In all other respects Liebenberg J approached the question of
sentence in a manner consistent with the approach set forth in this
judgment. He made reference to the very serious nature of the crime.
He pointed to the element of premeditation present and the
defenselessness of the deceased. He considered that the motive for
the killing was greed. There were apparently some life insurance
policies from which Carol would benefit and the appellant stood to
gain from the âlekker leweâ of which Carol had spoken.
He
adverted to the prevalence of crimes of violence in the country and
the communityâs interest in having the courts deal severely
with
offenders.
[32] As against those considerations he took
into account the absence of any previous convictions, and accepted
evidence
that Carol was a domineering personality. He accepted too
that Carol had been the instigator and that she had brought
influence
to bear upon the appellant but did not consider it to have
been a weighty factor when measured against the appellantâs deed.
The learned Judge regarded appellantâs remorse induced voluntary
admission of her guilt to her friends as possibly the strongest
point in appellantâs favour but then tended to minimise its
importance by observing that subsequent remorse was not something
exceptional. Having balanced all these considerations he concluded
that they did not amount to substantial and compelling circumstances
within the meaning of the legislation.
[33] It is not possible to
say to what extent the learned Judgeâs evaluation of the
circumstances of the case as not
being substantial and compelling
was influenced by his adoption of the proposition that they would
have to be classifiable as
exceptional before they would qualify as
substantial and compelling circumstances. That it must have played
some role seems
clear for he found it necessary to state expressly
that he approved of Stegmann Jâs view that the circumstances would
have
to be exceptional. Given that misdirection this Court is at
large to reconsider the matter afresh and it is unnecessary to
decide
whether or not it would have been free to do so absent such
misdirection.
7
[34] The circumstances in which the crime was
committed are undoubtedly such as to render it necessary to impose a
sentence
of imprisonment for life unless substantial and compelling
circumstances justify a lesser sentence. The shooting was
premeditated
and planned. The fact that the planning and
premeditation occurred not long before the deed was accomplished
cannot alter that.
It was also carried out in the execution of a
common purpose to kill the deceased. Giving all due weight to the
enormity of
the crime and the public interest in an appropriately
severe punishment being imposed for it, I consider that the personal
circumstances
of the accused (her relative youth, her clean record
and her vulnerability to Carolâs influence by reason of her status
as
a resident in the latterâs home at the latterâs pleasure) and
the fact that she was dragooned into the commission of the offence
by a domineering personality are strongly mitigating factors. As a
fact she gained nothing from the commission of the crime.
Her
remorse cannot be doubted and her spontaneous confession which
brought to light the commission of a crime which would otherwise
have gone undetected is deserving of recognition in a tangible
sense. She is young enough to make rehabilitation of her a real
prospect even after a long period of imprisonment. These
circumstances, cumulatively regarded, satisfy me that a sentence of
life imprisonment would be unjust. They qualify therefore as
substantial and compelling circumstances within the meaning of
the
provision. None the less, it remains a particularly heinous crime
of the kind which the legislature has singled out for
severe
punishment and the sentence to be imposed in lieu of life
imprisonment should be assessed paying due regard to the bench
mark
which the legislature has provided. In my judgment, imprisonment
for twenty-five (25) years is appropriate.
[35] The appeal succeeds. The sentence of
life imprisonment is set aside and there is substituted for it a
sentence
of imprisonment for twenty-five (25) years. In so far as
it may be necessary to do so, the sentence so imposed is antedated
to 3 November 1999 being the date upon which the sentence of life
imprisonment was imposed.
R
M MARAIS
JUDGE
OF APPEAL
HARMS JA)
CAMERON JA)
CHETTY AJA)
MTHIYANE AJA) CONCUR
1
J
Hogarth,
Sentencing as a Human Process
(1971) U. of Toronto
P., p.5. (Cited in
Stockdale and Devlin on Sentencing
, 1987,
p 8).
2
S
v Toms; S v Bruce
[1990] ZASCA 38
;
1990 (2) SA 802
(A) at 806H - 807D.
3
S
v Mofokeng and Another
1999 (1) SACR 502
(W);
S v Segole and
Another
1999 (2) SACR 115
(W);
S v Zitha and Others
1999
(2) SACR 404
(W);
S v Jansen
1999 (2) SACR 368
(C);
S v
Swartz and Another
1999 (2) SACR 380
(C);
S v Blaauw
1999
(2) SACR 295
(W);
S v Shongwe
1999 (2) SACR 220
(O);
S v
Dithotze
1999 (2) SACR 314
(W);
S v Homareda
1999 (2)
SACR 319
(W);
S v Van Wyk
2000 (1) SACR 45
(C);
S v N
2000 (1) SACR 209
(W);
S v Boer en Andere
2000 (2) SACR 114
(NC);
S v Kanjwayo; S v Mihlali
1999 (2) SACR 651
(O);
S v
Montgomery
2000 (2) SACR 318
(N). Unreported cases:
S v
Mthembu and Another
, 365/98 WLD (Leveson J) 22.10.1998;
S v
Madondo,
cc 22/99 NPD (Squires J) 30.3.1999;
S v Ngubane,
cc
31/99 NPD (Squires J) 30.3.1999;
S v Cimani
, cc 11/99 ECD
(Jones J) 28.4.1999;
S v Oliphant
, cc 27/99 SECLD (Erasmus
J);
S v Van Rooyen en Andere,
cc 18/00 SECLD (Kroon J)
7.6.2000.
4
S
v Dzukuda and Others; S v Tshilo
2000 (4) SA 1078
(CC) at 1100I
- 1102B.
5
[1999] EWCA Civ 811
;
[2000]
1 WLR 377
at 381H
6
Van
Zyl Smit,
1999 (15) SAJHR 270
at 271-273.
7
Cf
S v Homareda
1999 (2) SACR 319
(W) at 326c-d.