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S v Kgosimore (635/98) [1999] ZASCA 63 (16 September 1999)

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Criminal Law
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Brief Summary

Criminal Law — Sentencing — Appeal against sentence — Power of court of appeal to interfere with sentence imposed by trial court — Similar standards applied whether appeal is by accused or state. The appellant, a school teacher, was convicted of murder and attempted murder, receiving a sentence of 5 years' imprisonment for murder and 12 months for attempted murder, both wholly suspended. The state appealed, arguing the sentence was too lenient, leading to a substituted sentence of 9 years' imprisonment for murder by the full court. The legal issue was whether the court of appeal could interfere with the substituted sentence and if the trial court had properly exercised its discretion in sentencing. The court held that the power of a court of appeal to interfere with a sentence is the same regardless of whether the appeal is by the accused or the state. The substituted sentence of 9 years' imprisonment was deemed appropriate given the seriousness of the offences and the circumstances surrounding their commission.

Comprehensive Summary

Summary of Judgment


1. Introduction


This was an appeal in the Supreme Court of Appeal of South Africa concerning sentence following convictions for murder and attempted murder. The appeal ultimately required the court to decide whether a sentence imposed by a court on appeal (the “court a quo” in the Supreme Court of Appeal proceedings) warranted further interference.


The parties were Stephan Mudupe Kgosimore (the appellant, who was the accused in the trial court) and the State (the respondent). Although the matter was before the court as an appeal by the accused against sentence, the State, after giving notice, contended that the substituted sentence remained too lenient and sought an increase.


Procedurally, the appellant pleaded guilty in the Free State High Court and was convicted on the strength of a written statement under section 112(2) of the Criminal Procedure Act 51 of 1977. The trial court imposed five years’ imprisonment for murder and twelve months’ imprisonment for attempted murder, with both terms wholly suspended. The attorney-general’s application for leave to appeal against sentence under section 316B was refused by the trial court, but leave was granted on petition to the Chief Justice for an appeal to the full court. The full court set aside the murder sentence and substituted nine years’ imprisonment, while confirming the attempted murder sentence. The appellant then obtained leave to appeal further to the Supreme Court of Appeal against the nine-year sentence.


The dispute concerned the appropriateness of sentence for a domestic-relationship-related killing involving the appellant’s wife’s adultery with a close friend of the appellant, the appellant’s acquisition of a firearm, the circumstances of the shooting, and the extent to which appellate courts may interfere with sentencing discretion, including in the context of a State appeal against sentence.


2. Material Facts


The facts material to sentence were largely drawn from the appellant’s section 112(2) written statement, since he did not testify. Two witnesses gave evidence relevant to sentence: a social worker (Mrs Ronel Fourie) for the State, and the appellant’s school principal (Mr Sephiri Leteane) in mitigation.


It was undisputed that the appellant, a 34-year-old school teacher, had been married since January 1991. The marriage initially appeared reasonably happy, but tension arose when it emerged that the appellant was infertile. In early 1996, the appellant suspected his wife, Mavis, of having an affair with the deceased, who was a close friend of the appellant. On 2 August 1996, the appellant discovered his wife and the deceased in compromising circumstances, and both confessed to adultery. The appellant was willing to continue the marriage, but the relationship deteriorated. At the end of August 1996, his wife left for Johannesburg and later instituted divorce proceedings; the appellant discovered that the deceased had provided funds enabling her to do so.


A further undisputed feature was that the appellant applied for a firearm licence after his wife left. The licence was granted on 18 December 1996, and he immediately acquired a firearm. At approximately 3 am on 19 December 1996, he went to the deceased’s home armed with that firearm. In his written statement, he indicated that his purpose was to ask the deceased where Mavis was and that he intended to threaten the deceased with the firearm and to kill him if he refused to disclose her whereabouts or refused to speak to him.


It was common cause that the deceased was shot and killed at his home. The appellant’s statement asserted that the deceased attempted to disarm him and that, during the struggle, the deceased was fatally wounded. However, the post-mortem report reflected that the deceased was shot five times in the chest region, with a sixth shot grazing his head. The deceased’s brother intervened and sustained gunshot wounds to his hand and leg, forming the basis of the attempted murder charge.


It was also admitted for the appellant that on an earlier occasion he had threatened to kill the deceased and the deceased’s wife, as well as his own wife, Mavis. This feature was treated as relevant to aggravation.


In relation to mitigation and personal circumstances, the evidence accepted by the court was that the appellant had no prior convictions, had overcome disadvantaged circumstances to qualify as a teacher, and had been a dedicated educator for approximately eleven years, teaching mathematics and physical science. His principal described him as admired in the school and community, involved in extra-mural activities, and also engaged in adult education at night. There was evidence that the appellant underwent a marked personality change from August 1996, becoming isolated and withdrawn, stressed, and experiencing difficulty coping with the marital breakdown and perceived betrayal.


As to remorse and attitude, Mrs Fourie’s evidence (which the court treated as relevant) was that the appellant gave, as reasons for acquiring the firearm, self-protection and also the aim of threatening the deceased to establish his wife’s whereabouts. She also indicated there were probably other causes of the marital breakdown, including a history of assaults by the appellant on his wife predating the adultery. On remorse, her impression was that the appellant felt the deceased had received his “just deserts” and that the appellant’s primary concern was his own position, although he did express sympathy for the deceased’s daughter. Mrs Fourie concluded that the appropriate sentence was one of direct imprisonment.


3. Legal Issues


The central legal issues were, first, whether an appellate court’s power to interfere with sentence is more limited when the State appeals against sentence than when an accused appeals. This was a question of law, turning on principle and statutory interpretation, including whether anything in section 316B (and by reference, section 310A) justified a different standard.


Second, the court had to determine whether the full court’s substituted sentence of nine years’ imprisonment for murder was vitiated by a misdirection or was otherwise so inappropriate that the Supreme Court of Appeal was entitled to interfere. This was primarily an issue of application of law to fact in the sentencing context and involved an evaluative judgment about whether the sentencing discretion had been properly and reasonably exercised.


A further practical issue, arising from the positions adopted on appeal, was whether the sentence was disturbingly lenient (as the State contended) or disturbingly severe (as the appellant contended), and whether either contention met the threshold for appellate interference.


4. Court’s Reasoning


The Supreme Court of Appeal approached the matter from the established premise that sentence is pre-eminently a matter for the discretion of the sentencing court. It reiterated that multiple appellate formulations (misdirection, “startlingly inappropriate”, inducing a sense of shock, or a striking disparity between sentences) are different expressions directed at the same underlying inquiry, namely whether there was a proper and reasonable exercise of the sentencing discretion.


On the preliminary argument that policy and fairness require a stricter test when the State appeals against sentence, the court rejected the proposition. It reasoned that there was no juridical basis for applying different standards depending on whether the appellant is the State or the accused. The court further found no support in the wording of section 316B of the Criminal Procedure Act 51 of 1977, nor in section 310A, for such a differentiated approach. Accordingly, it held that the power of a court of appeal to interfere is the same whether the appeal is brought by the prosecuting authority or by the accused.


Turning to the correctness of the full court’s interference with the trial court’s sentence, the Supreme Court of Appeal agreed with the full court’s conclusion that a sentence of five years’ imprisonment wholly suspended for murder, in the circumstances, was wholly inappropriate and reflected a failure to attach sufficient weight to aggravating features. On that basis, it accepted that the full court had been entitled to set aside the trial court’s murder sentence and impose sentence afresh.


The Supreme Court of Appeal then assessed whether there was any basis to interfere with the nine-year term imposed by the full court. It noted that neither side was able to identify a misdirection by the full court beyond the competing contentions that the sentence was too severe or too lenient. The court was satisfied that the full court was alive to the appellant’s favourable personal circumstances and mitigating features, but considered that it had weighed them against the seriousness of the offence, its circumstances, and the interests of society.


In evaluating the State’s contention that the sentence was disturbingly lenient, the Supreme Court of Appeal accepted that the appellant was not a typical offender and that he had been a conscientious teacher and valued community member. It also accepted that his conduct occurred against a background of emotional distress linked to the breakdown of his marriage and the perceived betrayal by a close friend, and that these were legitimate mitigating considerations. Nevertheless, the court did not find the nine-year sentence so lenient as to justify appellate interference, even if it was not necessarily the sentence the court itself would have imposed at first instance.


In evaluating the appellant’s contention that the sentence was disturbingly severe, the court emphasised the seriousness of the offence and the features pointing away from a spontaneous, momentary loss of control. It highlighted that the appellant had taken steps months earlier to obtain a firearm to threaten the deceased, that he had made threats to kill the deceased, that he acted promptly after obtaining the firearm by going to the deceased’s house armed, and that on his own version he intended to use the firearm if the deceased would not disclose the wife’s whereabouts. The court regarded the fact that the deceased was shot five times in the chest region as significant, and agreed with the full court’s view that these circumstances indicated a considerable degree of premeditation. Against that backdrop, it was not persuaded that nine years’ imprisonment was disturbingly severe.


Having found no misdirection and no basis on which to characterise the full court’s sentence as falling outside the bounds of a proper and reasonable discretion, the Supreme Court of Appeal concluded it had no power to interfere.


5. Outcome and Relief


The Supreme Court of Appeal dismissed the appeal. The substituted sentence imposed by the full court, namely nine years’ imprisonment for murder, remained in place. The sentence of twelve months’ imprisonment wholly suspended for attempted murder, which had been confirmed by the full court, was unaffected.


Although the State sought an increase in sentence after giving notice of its intention to do so, the court’s conclusion that there was no basis to interfere meant that the State’s attempt to secure a harsher sentence did not succeed.


The judgment, as provided, does not record a specific costs order, and no costs order is reflected in the final disposition.


Cases Cited


S v Pieters 1987 (3) SA 717 (A)


R v Anderson 1964 (3) SA 494 (A)


Legislation Cited


Criminal Procedure Act 51 of 1977 (section 112(2); section 316B; section 310A)


Rules of Court Cited


No rules of court are cited in the judgment.


Held


The Supreme Court of Appeal held that the standard governing appellate interference with sentence is the same whether the appeal is brought by the State or by an accused. The controlling inquiry remains whether the sentencing discretion was exercised properly and reasonably.


It further held that the full court was entitled to set aside the trial court’s wholly suspended sentence for murder, and that the substituted sentence of nine years’ imprisonment was neither disturbingly lenient nor disturbingly severe in the circumstances. As a result, there was no basis for the Supreme Court of Appeal to interfere, and the appeal was dismissed.


LEGAL PRINCIPLES


An appellate court may interfere with a sentence only where the sentencing court did not exercise its discretion properly and reasonably, which may be shown through a misdirection, a sentence that is startlingly inappropriate, one that induces a sense of shock, or a striking disparity between the sentence imposed and the sentence the appellate court would have imposed. These formulations are treated as different ways of expressing the same underlying test.


The power of an appellate court to interfere with sentence does not depend on whether the appeal is brought by the accused or by the State. There is no separate, stricter test limiting interference merely because the State is the appellant, and nothing in section 316B (or section 310A) of the Criminal Procedure Act 51 of 1977 justifies a differentiated standard.


In assessing sentence, mitigating factors such as favourable personal circumstances and emotional turmoil must not be considered in isolation; they must be weighed against the seriousness of the offence, the circumstances of its commission, and the interests of society. Features indicating premeditation and the manner of execution of the offence may materially aggravate sentence and justify direct imprisonment notwithstanding personal mitigation.

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[1999] ZASCA 63
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S v Kgosimore (635/98) [1999] ZASCA 63; 1999 (2) SACR 238 (SCA) (16 September 1999)

Case No 635/98
REPORTABLE
IN
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
In the
matter between
STEPHAN MUDUPE KGOSIMORE
Appellant
and
THE
STATE Respondent
Coram : SCOTT, STREICHER JJA
et
MELUNSKY AJA
Heard : 13 SEPTEMBER
1999
Delivered :
16 SEPTEMBER
1999
Sentence - appeal by state - power of court of
appeal to interfere the same as in the case of an appeal by the
accused.
J U D G M E N T
SCOTT
JA
/...
SCOTT JA
:
[1] The appellant, a 34
year-old school teacher, was charged in the Free State High Court with one count
of murder and one count
of attempted murder. He pleaded guilty on both counts
and on the strength of his written statement made in terms of s 112 (2) of
the
Criminal Procedure Act 51 of 1977 (“the Act”) was duly convicted. He
was sentenced to 5 years imprisonment for the
murder and 12 months for the
attempted murder. Both periods of imprisonment were wholly suspended. Prior to
his conviction he had
spent 7 months in prison as an awaiting trial prisoner.
The attorney general’s application for leave to appeal in terms of
s 316 B
of the Act was dismissed by the trial court (Gihwala AJ) but on petition to the
Chief Justice leave was granted to appeal
to the full court. That court
(Lichtenburg JP, Beckley and Hancke JJ) set aside the sentence imposed by the
trial court on the count
of murder and imposed instead a sentence of 9 years
imprisonment. The sentence of 12 months suspended imprisonment in respect of
the
count of attempted murder was confirmed. The appellant’s petition to the
Chief Justice for leave to appeal against the
sentence of 9 years imprisonment
was successful; hence the present appeal. The state takes the view, however,
that the substituted
sentence is still too lenient and, after giving notice of
its intention to do so, seeks an increase in the sentence.
[2] The events
leading up to the commission of the offences on 19 December 1996 appear largely
from the appellant’s written
statement made in terms of s 112 (2) of the
Act. The appellant did not testify. Only two witnesses were called; Mrs Ronel
Fourie,
a social worker who testified on behalf of the state with regard to the
question of sentence, and Mr Sephiri Leteane, the principal
of the Rearabetswe
Senior Secondary School where the appellant taught mathematics and physical
science, who gave evidence in mitigation.
[3] The appellant was married in
January 1991. The marriage appears to have been reasonably happy at first, save
that it transpired
that the appellant was infertile and this gave rise to some
tension between the spouses. Early in 1996 the appellant began to suspect
that
his wife, Mavis, was having an affair with the deceased. The latter was a close
friend of the appellant and had been for many
years. On 2 August 1996 the
appellant discovered his wife and the deceased in compromising circumstances.
When confronted they both
confessed to having committed adultery. The appellant
was prepared to continue with the marriage but the relationship between himself
and his wife deteriorated rapidly. At the end of August 1996 she left the
appellant and moved to Johannesburg. The deceased, who
was married, did not
follow her. Shortly thereafter she instituted divorce proceedings against the
appellant. He discovered that
the deceased had provided her with the funds to do
so. Subsequent to her leaving the common home the appellant applied for a
firearm
license. It was granted on 18 December 1996. He immediately acquired a
firearm. At 3 am on 19 December 1996, ie that very night,
the appellant went to
the deceased’s house armed with his newly acquired firearm. According to
his written statement the purpose
of his visit was to ask the deceased where
Mavis was. He explained in his statement that he proposed to threaten the
deceased with
the firearm and to kill him if he refused to disclose his
wife’s whereabouts or refused to speak to him at all. According to
the
appellant the deceased attempted to disarm him and in the course of the struggle
that followed the deceased was fatally wounded.
The post mortem report
revealed that the deceased had been shot 5 times in the region of the chest and
a sixth shot had grazed
his head. The deceased’s brother attempted to
intervene. He sustained gun shot wounds in the hand and leg. The gunfire
directed
at the deceased’s brother was the subject of the charge of
attempted murder.
[4] During the trial it was admitted on behalf of the
appellant that on an earlier occasion the appellant had threatened to kill
both
the deceased and the latter’s wife, as well as his own wife,
Mavis.
[5] Prior to the hearing the appellant was interviewed on more than
one occasion by Mrs Fourie, the social worker, for the purposes
of preparing a
report on sentence. Several relevant facts emerge from her evidence. She
testified that the appellant gave as the
reason for acquiring a firearm not only
the desirability of being able to protect himself - someone had previously
broken into his
house - but also to enable him to threaten the deceased and so
ascertain the whereabouts of his wife. It appears furthermore that
although the
appellant blamed the deceased for the break-up of his marriage there were
probably other causes as well, including a
history of assaults by the appellant
on his wife which preceded the adultery. Finally, as far as the question of
remorse is concerned,
the impression gained by Mrs Fourie as to the
appellant’s attitude was that the deceased had received his just deserts
and
that his only real concern was his own position, although he did express
sympathy for the deceased’s daughter who was left
without a father. Mrs
Fourie’s conclusion was that notwithstanding the appellant’s absence
of previous convictions
and favourable personal circumstances, the offences
committed by him were such that the only appropriate sentence was one of direct
imprisonment.
[6] The appellant had achieved much in his life.
Notwithstanding a humble and disadvantaged beginning he had managed to qualify
as
a teacher. Prior to the shooting he had been a teacher for some 11 years at
the Rearabetswe Senior Secondary School, Odendaalsrus,
where he taught
mathematics and physical science. He was described by his principal, Mr Leteane,
as a positive person, always kindly
and much admired both at school and in the
community generally. He played an active roll in extra mural activities at
school including
the debating society, sport and indoor-games. At night he
taught at the Mokotsho Centre which is a centre for the teaching of adult
people. In addition, he attempted to further his own education by enrolling as a
part-time student for a Bachelor of Arts degree.
According to Mrs Fourie he had
to abandon his studies for financial reasons. The evidence disclosed that
his net monthly
income was a meagre R1 599,74. Mr Leteane testified that
teachers of the appellant’s calibre were scarce, so much so that
he was
confident that if the appellant were not to be sent to prison he would be
accepted back in his former teaching post at the
school.
[7] In his written
statement the appellant emphasized that his wife’s adultery and desertion
had upset him greatly. This was
confirmed by both Mrs Fourie and Mr Leteane. The
latter explained that from about the beginning of August 1996 the appellant
virtually
underwent a personality change. Instead of his former friendly and
gregarious self he became isolated and withdrawn. He was clearly
under
considerable stress and even consulted a doctor. His work at school also
changed. Reports were not submitted timeously and
he began absenting himself
from school. In response to Mr Leteane’s inquiries, the appellant revealed
that he was having domestic
problems. According to Mrs Fourie it was apparent to
her that the appellant was deeply attached to his wife and was unable to cope
in
a meaningful way with the break-up of his marriage. He wanted her back but did
not know where to find her. He attributed the break-up
to her adultery with a
man whom he had regarded as his best friend. He felt hurt and betrayed. It is
clear that the deep emotional
turmoil which he undoubtedly experienced had got
the better of him.
[8] A most unusual feature of the present appeal is that
counsel on both sides submitted that the sentence imposed by the court
a
quo
was disturbingly inappropriate; but, of course, for diametrically
opposed reasons. Counsel for the appellant says it is too severe;
counsel for
the state says it is too lenient.
[9] Before attempting to resolve this
conflict it is necessary to consider a preliminary point raised by counsel for
the appellant.
He submitted that considerations of policy and fairness dictated
that when the state appealed against sentence the power of a court
of appeal to
interfere should be more limited than in the case of an appeal by an accused.
(
Cf Hiemstra
: Suid-Afrikaanse Strafproses 5 ed at 820.) He argued that
if a stricter test were applied any criticism that could be levelled
at the
nature of the sentence imposed by the trial court would be insufficient to
justify interference and that the court
a quo
erred in doing so.
Accordingly, so the argument went, the sentence imposed by the trial court
should be reinstated.
[10] It is trite law that sentence is a matter for the
discretion of the court burdened with the task of imposing the sentence. Various
tests have been formulated as to when a court of appeal may interfere. These
include, whether the reasoning of the trial court is
vitiated by misdirection or
whether the sentence imposed can be said to be startlingly inappropriate or to
induce a sense of shock
or whether there is a striking disparity between the
sentence imposed and the sentence the court of appeal would have imposed. All
these formulations, however, are aimed at determining the same thing;
viz
whether there was a proper and reasonable exercise of the discretion bestowed
upon the court imposing sentence. In the ultimate analysis
this is the true
inquiry. (Cf
S v Pieters
1987 (3) SA 717
(A) at 727 G - I.) Either
the discretion was properly and reasonably exercised or it was not. If it was, a
court of appeal has
no power to interfere; if it was not, it is free to do so. I
can accordingly see no juridical basis for the stricter test suggested
by
counsel; nor is there anything in s 316 B of the Act, or for that matter s 310
A, to suggest otherwise. (See also
R v Anderson
1964(3) SA 494(A).) It
follows that, in my view, whether it is the attorney-general (now the director
of public prosecutions) or
an accused who appeals against a sentence, the power
of a court of appeal to interfere is the same.
[11] In the light of the
seriousness of the offence and the circumstances in which it was committed the
court
a quo
came to the conclusion that a sentence of 5 years suspended
imprisonment was wholly inappropriate and was indicative of the trial
court
having failed to give proper weight to the various aggravating features which
the court
a quo
listed and which are apparent from what has been said
above. I agree. It follows that the court
a quo
was entitled to set aside
the sentence of the trial court and in the exercise of its discretion impose
sentence afresh.
[12] What has to be decided is whether there is any basis
for this court interfering with the substituted sentence of 9 years
imprisonment.
Apart from the point raised by the appellant’s counsel to
which I have previously referred and which in my view is without
substance,
neither counsel was able to refer to any misdirection on the part of the
court
a quo
save for the severity or leniency of the sentence. It is
clear from the judgment of Beckley J that the court
a quo
was fully aware
of the appellant’s favourable personal circumstances as well as the
various mitigating factors which were undoubtedly
present. It stressed, however,
that these were not to be viewed in isolation but had to weighed up against the
seriousness of the
crime, the circumstances in which it was committed and the
interests of society.
[13] Is the sentence disturbingly lenient? The
appellant is not the kind of person one would normally expect to find in prison.
He
appears to have been a conscientious and dedicated schoolteacher and a
valuable member of his community. His crimes were committed
at a time of
emotional upset following the break-up of his marriage and his perceived
betrayal by a close friend. These were factors
which the court
a quo
was entitled and indeed obliged to take into account. While the sentence imposed
is not one which I necessarily would have imposed
if sitting as a court of first
instance, I am unpersuaded that it is so lenient as to justify interference by
this court.
[14] Is the sentence disturbingly severe? Apart from the obvious
seriousness of the crime, it is apparent that the appellant did
not shoot and
kill the deceased in a moment of anguish or on the spur of the moment. Some four
months prior to the shooting he took
the first step to acquire a firearm in
order to threaten the deceased with it. It is common cause that either before or
after taking
this step he did indeed threaten to kill the deceased. Once he
acquired the firearm he wasted no time in arming himself and going
to the
deceased’s house. On his own admission he proposed to use it on the
deceased if the latter failed to disclose the whereabouts
of his wife. In the
event, he shot the deceased no fewer than 5 times in the region of the chest. As
observed by the court
a quo
, all this is indicative of a considerable
degree of premeditation. I agree. I am unpersuaded that the sentence is too
severe.
[15] In the circumstances there is, in my view, no basis on which
this court can interfere with the sentence imposed by the court
a quo
.
The appeal is accordingly dismissed.
D G SCOTT
JA
STREICHER JA
-
Concur
MELUNSKY AJA

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