IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable
Case No: A276/2025
In the matter between:
MARCELINO HAMMOND Appellant
And
THE STATE Respondent
Coram: DA SILVA SALIE, J et WELGEMOED, AJ
Heard on: 13 March 2026
Delivered on: 13 March 2026
Summary:
Criminal law – appeal against sentence – appellant convicted in regional court on plea
of guilt - culpable homicide and unlawful possession of a firearm and ammunition –
deceased fatally shot – appellant 18 years old at time of offence – firearm belonged to a
friend and discharged while appellant handled it out of curiosity – sentencing court
accepted that incident occurred spontaneously and that the State proceeded on a
charge of culpable homicide rather than murder – sentencing court nevertheless
proceeded on the premise that appellant was “carrying” the firearm – factual premise
not supported by plea explanation accepted by the State – material misdirection –
youthfulness and rehabilitative prospects significant – sentence substituted with
imprisonment in terms of section 276(1)(i) of the Criminal Procedure Act 51 of 1977 –
sentences ordered to run co ncurrently – effective sentence five years’ imprisonment in
terms of s 276(1)(i).
ORDER
1. The appeal against sentence is upheld.
2. The sentences imposed by the regional court are set aside in their entirety and
substituted with the following sentence:
“(i) In respect of count 1 (culpable homicide) the accused is sentenced to five
(5) years’ imprisonment in terms of section 276(1)(i) of the Criminal
Procedure Act 51 of 1977.
(ii) In respect of count 2 (unlawful possession of a firearm) the accused is
sentenced to five (5) years’ imprisonment in terms of section 276(1)(i) of
the Criminal Procedure Act 51 of 1977.
(iii) In respect of count 3 (unlawful possession of ammunition) the accused is
sentenced to three (3) years’ imprison ment in terms of section 276(1)(i) of
the Criminal Procedure Act 51 of 1977.
(iv) The sentences imposed on counts 2 and 3 shall run concurrently with the
sentence imposed on count 1, the result being an effective sentence of
five (5) years’ imprisonment in terms of section 276(1)(i).
(v) The sentence is antedated to 28 May 2025.”
3. The Chief Registrar of this Court is directed to bring a copy of this judgment
within 3 days of date hereof to the attention of the Head of Brandvlei Correctional
Centre and the relevant Case Management Committee of the Department of
Correctional Services.
JUDGMENT
DA SILVA SALIE J:
Introduction:
[1] This is an appeal against sentence imposed by the Regional Court sitting at Blue
Downs. The appellant, Mr Marcelino Hammond, who was legally represented, pleaded
guilty on 28 May 2025 to culpable homicide arising from the accidental and fatal
shooting of the deceased , his friend, on 17 October 2016, as well as unlawful
possession of a firearm and unlawful possession of ammunition.
[2] The regional court sentenced the appellant to five years’ imprisonment on the
culpable homicide count, five years’ imprisonment for unlawful possession of a firearm,
and three years’ imprisonment for unlawful possession of ammunition.
[3] The court ordered that the sentences imposed on the firearm and ammunition
counts run concurrently with the sentence on the culpable homicide count, resulting in
an effective sentence of five years’ imprisonment.
[4] Leave to appeal against sentence was granted on 27 June 2025.
Issues on appeal
[5] This appeal concerns sentence only.
[6] The appellant contends that the sentencing court misdirected itself in its
evaluation of the facts and failed to give proper weight to his youth and prospects of
rehabilitation. In the result, it was argued, that interference by this court on appeal is
warranted and that it ought to impose a non -custodial sentence or a shorter period of
imprisonment.
[7] In opposing the appeal, the resp ondent submits that due regard was given to the
personal circumstances of the appellant in the imposition of the sentence. It further
argues that rehabilitation is not the only objective of sentence and that the sentence
imposed of an effective 5 years’ d irect imprisonment is proportional in relation to all the
triad of factors. During argument, counsel for the respondent, emphasised that the
sentencing court was mindful of the cumulative effect of the sentences and ordered that
counts 2 and 3 run concurr ently with count 1. For these reasons it submitted that the
appeal against sentence should be dismissed. However, further during argument
counsel for the State conceded, that on the totality of the facts and circumstances of this
matter a shorter period of imprisonment would be appropriate.
Statement in terms of Section 112 of the Criminal Procedure Act 51 of 1977 (“the Act”)
– plea of guilt:
[8] In the statement tendered in support of his plea of guilt, the appellant stated that
on the day in qu estion, 17 October 2016, he was sitting with friends at one of their
homes. One of the friends in the group produced a firearm which he had recently
acquired. The appellant further explained that he was intrigued as he never previously
handled a real firearm and asked to see it.
[9] He stated that he was warned by his friends to handle the firearm carefully. While
holding the firearm and playing with it, a shot discharged. The bullet struck the
deceased who had been seated next to him. He realised that he had shot his friend
when he saw blood and the deceased told him that he had been shot. The appellant
went into a state of shock and disbelief.
Personal circumstances:
[10] The appellant was 18 years old at the time of the offence and is a first offender.
The record further reflects that he had spent approximately two years in custody
awaiting trial. At the time of sentencing, some 9 years later, he is 26 years old with three
minor children.
[11] The appellant took responsibility for his actions and spared the family of the
deceased the ordeal of testifying during a trial by pleading guilty to the charges.
Sentencing by the court a quo:
[12] The court a quo acknowledged that the incident occurred in the spur of the
moment for which the prosecution proceeded on a charge of culpable homicide rather
than murder.
[13] However it emphasised the prevalence of firearm offences and that the
circumstances of the matter warranted a custodial sentence to satisfy the interests of
society and the demands of retribution.
Legal principles governing interference with sentence
[14] Sentencing falls primarily within the discretion of the trial court and an appellate
court will not lightly interfere with that discretion.
[15] In S v Rabie 1975 (4) SA 855 (A) the Appellate Division emphasised that
punishment is pre-eminently a matter for the discretion of the trial court and that a court
of appeal may interfere only where that discretion was not exercised judicially and
properly.
[16] In S v Pieters 1987 (3) SA 717 (A) it was held that interference on appeal is
justified where the sentencing court committed a material misdirection or where the
sentence imposed is disturbingly inappropriate.
[17] In determining sentence a court must hav e regard to the well -known triad
identified in S v Zinn 1969 (2) SA 537 (A) , namely the crime, the offender and the
interests of society.
Misdirection of fact and over/under emphasis of relevant circumstances.
[18] Firstly, a difficulty arises from the factual premise upon which the sentencing
court proceeded. In its reasoning the court a quo stated that the appellant knew the
unlawfulness of his conduct “at the time when he was carrying this firearm”. (own
emphasis)
[19] Equally problematic is the sentencing court’s rhetorical question during
sentencing:
“And the question that came into the mind of the court, as to where did these
youngsters….these young men get this firearm? Why were they in possession of
this firearm? And to me it is clear that the accused knew the unlawfulness at the
time when he was carrying this firearm because….the make and model of the
firearm is unknown, which shows that it was an unlawful firearm.” (page 25, line 9
of the judgement)
[20] That re asoning by the court a quo suggests that the appellant and his
companions were in possession of the firearm for some contemplated criminal purpose.
Such an inference is not supported by the facts emerging from the plea explanation,
which was accepted by the State. The admitted facts reflect that the firearm belonged to
a friend and that the appellant merely asked to see it out of curiosity while they were
seated together. There was no evidence before the sentencing court that the appellant
intended to use the firearm for criminal activity. B y introducing speculation as to the
purpose for which the firearm might have been possessed, the sentencing court relied
on a factual inference not grounded in the admitted facts, which further constitutes a
misdirection in the assessment of sentence.
[21] That characterisation is not supported by the facts contained in the appellant’s
plea explanation which was accepted by the State. The explanation reflects that the
firearm belonged to a friend in the group and that the appellant asked to see it at the
point where they were seated together. Thus, from the admitted facts it is not the case
that the appellant arrived at the premises or moved about whilst carrying the firearm.
This reasoning introduced a factual premise that was not born out by the facts accepted
before the sentencing court.
[22] Furthermore, the appellant had only just attained 18 years at the time of the
offence. Youthfulness is a recognised mitigating factor because it may reduce moral
blameworthiness and enhance prospects of rehabilitation.
[23] In Centre for Child Law v Minister of Justice and Constitutional
Development 2009 (6) SA 632 (CC) the Constitutional Court emphasised the greater
capacity for reform and rehabilitation of young persons and the importance of
recognising this within the criminal justice system. Though the appellant was 18 (and 12
days) at the time of the incident, the principles relating to youthfulness nonetheless
apply herein.
[24] The appellant was also a first offender, had pleaded guilty and had for som e time
held gainful employment. Whilst the consequences of his conduct were grave and
resulted in the death of one of his friends who was also 18, sentencing must balance
the interests of society with the rehabilitative prospects of the offender. Appropr iate
weight must be afforded to the objectives of sentencing taking into account the full
weight must be afforded to the objectives of sentencing taking into account the full
matrix of the matter. It remains a foundational principle of sentencing that punishment
must fit both the crime and the offender, be fair to society, and be tempered with a
measure of mercy according to the circumstances, as articulated in Rabie. In the
present matter, the appellant’s youth at the time of the offence is a factor which strongly
informs the weight to be given to the rehabilitative objectives of sentenc ing. Whilst
youthfulness does not excuse criminal conduct, it may diminish the extent of moral
blameworthiness and enhance the prospect that the offender is capable of reform. In
circumstances where a youthful first offender demonstrates a realistic pros pect of
rehabilitation, a sentencing mechanism that retain a custodial component while
facilitating structured reintegration into society may properly be considered.
[25] It is also not insignificant that during the pre -sentencing proceedings counsel for
the defence indicated that two reports, prepared by correctional officials during April and
October 2024 were available, albeit that they had been prepared the previous year and
were not ultimately considered by the sentencing court. It is regrettable that the contents
of those reports were not placed before the magistrate or considered in sentencing as it
would most likely have afforded the court a quo further insight into the personal
circumstances of the appellant and, more significantly, his prospects of rehabilitation
given his youthfulness. It was furthermore not disputed by the prosecution that the
mother of the deceased had conveyed that she had forgiven the appellant for his
actions which caused the loss of her son. These considerations, while not diminishing
the gravity of the loss suffered, are factors that would be appropriate to consider in the
sentencing process.
Sentencing in terms of Section 276(1)(i):
[26] Section 276(1)(i) of the Act provides a sentencing regime that retains a custodial
element while allowing the correctional authorities to place the offender under
element while allowing the correctional authorities to place the offender under
correctional supervision when appropriate. It involves the imposition of a sentence of
imprisonment, but with the possibility that the offender may be placed under correctional
supervision by the Commissioner of Correctional Services after the serving one sixth
(1/6) of the five -year period of imprisonment. The offender would thereby initially be
committed to a correctional facility, but the correctional authorities may, upon
consideration of the offender’s conduct, risk profile and rehabilitative progress, authorise
placement under community correctional supervision for the remainder of the sentence.
The mecha nism therefore retains the punitive and deterrent effect of imprisonment
whilst at the same time allowing for structured reintegration into society under
supervision where the circumstances justify such placement.
[27] The effective period of five (5) y ears means that the appellant would ordinarily
become eligible for such consideration after serving approximately ten (10) months of
the custodial portion of the sentence, subject to the assessment of the correctional
authorities in accordance with the app licable provisions of the Correctional Services Act
111 of 1998.
[28] In the circumstance of this case, such a sentence would, in my view,
appropriately recognise both the seriousness of the offence and the appellant’s youth
and rehabilitative prospects. It must be emphasised however that the substitution of the
sentence does not diminish the gravity of the consequence of the appellant’s conduct. A
young life was lost and the suffering experienced by the family of the deceased is both
profound and endur ing. The effective sentence of five years’ imprisonment remains a
substantial custodial punishment, reflects the seriousness of the offence and on these
facts, meet the objectives of sentencing. The imposition of a sentence serves multiple
purposes. On the facts of this matter, I am of the view that it would not only punish the
appellant for his criminal conduct but so too it would discourage both the appellant and
others from similar conduct through deterrence, protect the community through
prevention of repeated criminal conduct by the appellant, and promote his prospects of
prevention of repeated criminal conduct by the appellant, and promote his prospects of
rehabilitation and reintegration into society.
[29] Lastly, in view of the findings made in this judgment and the substitution of the
sentence to one imposed in terms of section 276(1)(i) , it is appropriate that the relevant
correctional authorities be apprised of this order in their consideration accordingly. The
appellant has, to date, served almost 10 months of the custodial portion of the sentence
since 28 May 2025. Provision will therefore be made in the order directing the Chief
Registrar of this Court to bring this judgment to the attention of the Head of the
Correctional Centre where the appellant is presently detained as well as the Case
Management Committee of the Department of Correctional Services so that appellant’s
sentence be endorsed and considered in terms of section 276(1)(i). During the hearing
of this matter Counsel for the appellant indicated that her client is detained at Brandvlei
Correctional Facility.
Conclusion:
[30] For the reasons set out above, I am satisfied that the sentencing court
misdirected itself by its assessment of the facts and emphasis of the relevant
circumstances.
Order
[31] The following order is made:
[31.1] The appeal against sentence is upheld.
[31.2] The sentences imposed by the regional court are set aside in its entirety
and substituted with the following sentence:
“(i) In respect of count 1 (culpable homicide) the accused is sentenced to five
(5) yea rs’ imprisonment in terms of section 276(1)(i) of the Criminal
Procedure Act 51 of 1977.
(ii) In respect of count 2 (unlawful possession of a firearm) the accused is
sentenced to five (5) years’ imprisonment in terms of section 276(1)(i) of
the Criminal Procedure Act 51 of 1977.
(iii) In respect of count 3 (unlawful possession of ammunition) the accused is
sentenced to three (3) years’ imprisonment in terms of section 276(1)(i) of
the Criminal Procedure Act 51 of 1977.
(iv) The sentences imposed on counts 2 and 3 shall run concurrently with the
sentence imposed on count 1, the result being an effective sentence of
five (5) years’ imprisonment in terms of section 276(1)(i).
(v) The sentence is antedated to 28 May 2025.”
[31.3] The Chief Registrar of this Court is directed to bring a copy of this
judgment within 3 days of date hereof to the attention of the Head of Brandvlei
Correctional Centre and the relevant Case Management Committee of the
Department of Correctional Services.
__________________________
G. DA SILVA SALIE
JUDGE OF THE HIGH COURT
WESTERN CAPE DIVISION
I AGREE:
__________________________
D. WELGEMOED
ACTING JUDGE OF THE HIGH
COURT
WESTERN CAPE DIVISION
Appearances
For Appellant: Adv. N Abdurahman
Instructed by: Legal Aid
For Respondent: Adv. A Hess
Instructed by: Director of Public Prosecutions