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[2012] ZAWCHC 14
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Lakay v S (A 724/2010) [2012] ZAWCHC 14; 2012 (2) SACR 399 (WCC) (2 March 2012)
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE
TOWN)
Case no: A 724/2010
JASON LAKAY
…..............................................................................................
Appellant
v
THE STATE
…...............................................................................................
Respondent
FOR
THE APPLICANT :
MR J K JAMALIE
INSTRUCTED
BY
:
JAMALIE
ATTORNEYS (021-6335154)
FOR
THE RESPONDENT :
ADVE. KORTJE (021-4877261)
INSTRUCTED
BY
:
STATE
ATTORNEYS
HEARD
:
2 MARCH 2012
COURT
:
JUDGE N J YEKISO
ET
ACTING JUDGE J I CLOETE
DELIVERED
:
2 MARCH2012
JUDGMENT
CLOETEAJ:
[1] The appellant (who was 16 years
old and legally represented) was convicted on 12 February 2009 in the
Cape Town Regional Court
on one count of murder. On 3 April 2009
he was sentenced to 10 years direct imprisonment of which 4 years
were conditionally
suspended for 5 years. With the leave of the trial
court he appeals against both his conviction and sentence.
[2] The state’s case was that
the appellant murdered the deceased (then 15 years old) in Wale
Street, Cape Town on the evening
of 2 December 2007. It was common
cause that the deceased suffered a fatal single stab wound to the
chest. It was also common cause
that on the evening in question the
appellant, who had been present in the same area, suffered multiple
stab wounds which resulted
in him being hospitalised for a period of
two weeks. It was during this period that he was arrested. The only
issue in dispute
was whether it was the appellant who had stabbed the
deceased.
[3] Only two witnesses gave evidence,
namely the state’s witness Alfonso Poggenpoel (‘
Poggenpoel’
)
and the appellant in his own defence.
[4] Poggenpoel testified that he had
accompanied the deceased to watch the annual event of the Christmas
lights being switched on
in the city centre. They were standing on
the corner of Wale and Adderley Streets, opposite the entrance to the
Company Gardens,
waiting for friends to join them. Poggenpoel saw a
group of gangsters, the Stupa Boys, walking towards Adderley Street
from the
opposite side of the road. Two of the group, one of whom was
the appellant, approached Poggenpoel and the deceased. Poggenpoel saw
the appellant take his hand out of his pocket, grab the deceased, and
stab him in the chest. The deceased collapsed. As Poggenpoel
moved
away he saw the appellant’s companion kick the deceased.
[5] It was at that stage that
Poggenpoel’s friends emerged from the entrance to the Company
Gardens. He told them what had
happened. Some of these friends
pursued the appellant and his companion. They caught the appellant
just outside St George’s
Cathedral and during the scuffle which
ensued the appellant was stabbed.
[6] Poggenpoel said that he knew that
the appellant was a member of the Stupa Boys and that they had
previously attempted to attack
the deceased. They had also vandalised
the deceased’s home. Poggenpoel said that while in the company
of the deceased he
had previously encountered the appellant and his
gangster friends outside a shopping centre in Bonteheuwel. He said
that they looked
dangerous and that he and the deceased thus decided
to leave the shopping centre.
[7] The appellant gave an entirely
different account of the events of 2 December 2007. He claimed that
he had been standing with
an acquaintance, Mischa, near the entrance
to the Company Gardens when a group (including the deceased) walked
past them. Four
of the group (again including the deceased) turned
back, saying ‘
Daar is die Stupa Boy’
. The deceased
and one Taliban then attacked the appellant with a knife, and he ran.
An unknown woman approached and the group dispersed.
It was this
woman who had taken him to hospital. He denied having stabbed the
deceased. He claimed that Poggenpoel (and the deceased)
could not
previously have encountered him outside the shopping centre although
he conceded that he did stand there sometimes to
smoke since smoking
was not permitted inside the premises.
[8] In evaluating the evidence the
magistrate correctly took into account the applicable legal
principles, in particular those pertaining
to the testimony of a
single witness upon whose evidence the state’s case rested to
prove the guilt of the appellant beyond
a reasonable doubt.
[9] The magistrate found Poggenpoel’s
evidence to be truthful and commented favourably on him as a witness.
He referred to
Poggenpoel’s uncontested evidence that the area
where the deceased was stabbed was sufficiently well lit so as to
have enabled
him to identify the perpetrator. He correctly found that
on Poggenpoel’s version he had also had sufficient opportunity
to
identify the perpetrator during the stabbing. Not only had
Poggenpoel been standing next to the deceased when he was stabbed,
but
he had also had the opportunity to observe, unobstructed, the
appellant and his companion crossing the road towards them. The
appellant
could not deny Poggenpoel’s evidence that he had
previously observed him outside the shopping centre in Bonteheuwel.
He also
conceded that some of his friends were members of the gang
that Poggenpoel claimed he had seen outside the shopping centre.
[10] Furthermore, Poggenpoel readily
volunteered that he himself was a member of a gang and that it was
his friends who had chased
the appellant and stabbed him outside St
George’s Cathedral. He candidly expressed regret that he had
not had a weapon at
the time since he would have had no hesitation in
using it on the appellant in order to defend the deceased. The
magistrate correctly
observed that in cross-examination Poggenpoel
stuck to his version. He found that Poggenpoel’s evidence as a
whole was substantially
satisfactory in relation to all material
aspects:
S v Jones
2004 (1) SACR 420
(C) at 427g-h.
[11] On the other hand the magistrate
had serious difficulties with the appellant’s version. The
appellant claimed that he
had been attacked for no reason by the
deceased and his friends. He knew the deceased as he had previously
been a member of his
father’s ‘
Klopse’
band.
He said that there was no bad blood between them. He could not
provide an explanation as to why in these circumstances the
deceased
and his friends might have wanted to attack him.
[12] Although the magistrate did not
specifically deal with this in his judgment there was no explanation
provided by the appellant
as to why he did not call Mischa to testify
in his defence. On his version she was an eyewitness to his attack.
In addition it
was put to Poggenpoel during cross-examination that
the appellant did not suggest that the deceased was one of the group
that had
attacked him. However during his evidence the appellant
indeed claimed that the deceased had stabbed him. He then said that
when
he was stabbed he was facing away from his attackers and he thus
could not see who it was who had stabbed him. There were other
contradictions in the appellant’s evidence but these, together
with those highlighted by the magistrate, appear to be the
most
material.
[13] It is against this background
that the magistrate correctly accepted Poggenpoel’s evidence
and rejected the evidence
of the appellant as not being reasonably
possibly true. The conviction of the appellant was based on a proper
consideration of
the whole body of evidence, and I am satisfied that
the magistrate evaluated the evidence correctly in light of the
applicable
law and arrived at the correct conclusion. He had the
benefit of observing the witnesses and their demeanour. He was
steeped in
the atmosphere of the trial. It has not been demonstrated
that the magistrate’s findings are incorrect. There is thus no
basis for this court to set aside the conviction.
[14] I now turn to the sentence. The
appellant was sentenced prior to the commencement on 1 April 2010 of
the Child Justice Act
No 75 of 2008 (‘
the Act’
).
In terms of section 4 thereof it applies
inter alia
to any
person in the Republic of South Africa who is alleged to have
committed an offence and was arrested whilst under the age
of 18
years. The appellant was born on 16 November 1992 and was thus 15
years old when he committed the offence. As I have said
he was
subsequently arrested.
[15] Chapter 10 of the Act deals
comprehensively with the sentencing of children. Section 68 provides
that a court must, after convicting
a child, impose a sentence in
accordance with that Chapter. Section 69 details the objectives of
sentencing and the factors to
be considered. In addition to any other
considerations relating to sentencing, the objectives are to: (a)
encourage the child to
understand the implications of and be
accountable for the harm caused; (b) promote an individualised
response which strikes a balance
between the circumstances of the
child, the nature of the offence and the interests of society; (c)
promote the re-integration
of the child into the family and
community; (d) ensure that any necessary supervision, guidance,
treatment or services which form
part of the sentence assist the
child in the process of re-integration; and (e) use imprisonment only
as a measure of last resort
and only for the shortest appropriate
period of time.
[16] The last objective is also to be
found in s 28(1)(g) of the Constitution of the Republic of South
Africa which provides that
every child has the right not to be
detained except as a measure of last resort and then only for the
shortest appropriate period
of time. This is also echoed in s 77 of
the Act which provides that when sentencing a child who is 14 years
or older at that time,a
court must do so only as a measure of last
resort and for the shortest appropriate period of time. Section 77(3)
provides that
a child of 14 years or older may only be sentenced to
imprisonment if he or she is convicted
inter alia
of an
offence referred to in Schedule 3 of the Act. Schedule 3 includes the
offence of murder. Section 77(6) provides that in compliance
with
South Africa’s international obligations, no law or sentence of
imprisonment imposed on a child may directly or indirectly
deny,
restrict or limit the possibility of earlier release of a child
sentenced to any term of imprisonment.
[17] Section 69(4) of the Act
stipulates that when considering the imposition of a sentence
involving imprisonment in terms of s
77, the court must take the
following factors into account, namely: (a) the seriousness of the
offence; (b) the protection of the
community; (c) the severity of the
impact of the offence on the victim; (d) the previous failure of the
child to respond to non-residential
alternatives, if applicable; and
(e) the desirability of keeping the child out of prison. Section 71
makes it obligatory (save
in certain limited circumstances which do
not apply here) for the furnishing of a pre-sentence report by a
probation officer. Section
71(4) provides that a court may impose a
sentence other than that recommended in the pre-sentence report but
must, in that event,
enter the reasons for the imposition of a
different sentence on the record of the proceedings.
[18] In sentencing the appellant to an
effective 6 years direct imprisonment, the magistrate reasoned as
follows. The offence was
indeed serious. Of concern was the trend of
ever-younger offenders being convicted of offences of this nature.
The 15 year old
victim was deprived of the life which lay ahead of
him. His death had a severe impact on his family. In fact his
girlfriend had
been pregnant at the time and subsequently gave birth.
That child would now have to be raised without a father. The
community was
tired of violence. The offence itself was callous and
the appellant showed no remorse. The appellant’s father who
testified
in mitigation on his behalf had conceded that he had not
been aware that the appellant had been a tik user before he was
arrested
and sent to a rehabilitation centre. The magistrate agreed
with the probation officer that sentencing the appellant to
compulsory
residence in a child and youth care centre was not a
feasible option since according to the probation officer it is a
common occurrence
that these children run away during the period of
their residence. The appellant’s father, who appeared to be his
only positive
role model, was not aware of the appellant’s
nefarious activities. The magistrate concluded that the best
sentencing option
would be direct imprisonment in a prison for
juvenile offenders, apparently in order to afford the appellant the
opportunity to
rehabilitate in an environment of strong discipline
and to further his education. That portion of the sentence which was
suspended
would hang like the sword of Damacles over his head and
would thus have deterrent effect.
[19] It is trite that the
circumstances in which a court of appeal may interfere in a sentence
which another court has passed are
limited. There must be either a
material misdirection by the trial court, or 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 ‘
shocking, startling or
disturbingly inappropriate’
:
S v Malgas
2001 (1)
SACR 469
(SCA) at 478d-g.
[20] The appellant’s sentence is
essentially attacked on the basis that the magistrate misdirected
himself by following the
recommendation of the probation officer (who
had recommended direct imprisonment) without subjecting that
recommendation to sufficient
critical analysis. The appellant submits
that the magistrate should have established what rehabilitation
programs under correctional
supervision were available to the
appellant as an alternative to direct imprisonment.
[21] I have certain fundamental
difficulties with the magistrate’s approach. Section 28(1)(g)
of the Constitution formed part
of the supreme law of our country
when the appellant was sentenced, even if the
Child Justice Act had
not yet been implemented. The magistrate appeared to accept at face
value the probation officer’s concern about the placement
of
the appellant at a child and youth care centre. The probation officer
had formed the view that there was a risk that the appellant
might
abscond from such a centre. However, in her report, she commented
that the appellant had successfully completed his term
of
rehabilitation after having been arrested for possession of tik. The
probation officer had obtained independent confirmation
from the
chief co-ordinator at the rehabilitation centre concerned that the
appellant had duly attended and completed his rehabilitation.
She
also commented that according to the appellant he had remained drug
free since then. There was also insufficient information
placed
before the magistrate to enable him to determine: (a) a realistic
waiting period for admission to such a centre; and (b)
whether the
appellant (as opposed to other youth offenders) was likely to
abscond.
[22] Of further concern is that
according to the probation officer the appellant’s school had
confirmed that his father was
a positive role model in his life and
that he provided the necessary support to the appellant in the
furtherance of his education.
It is not suggested that the appellant
was a model student by any means – indeed, having regard to his
background and social
circumstances which were referred to in some
detail by the probation officer, it would have been quite exceptional
if he was. The
point however is that the probation officer never
interviewed the appellant’s father, claiming that she could not
make contact
with him. This is difficult to accept bearing in mind
that he lived a short distance away from the appellant and testified
in mitigation
after the probation officer had given her evidence. The
magistrate voiced his concern that the appellant’s father did
not
appear to be fully aware of his son’s activities. However
the uncontested evidence of the appellant’s father was that
although he saw the appellant daily, these interactions were always
for a brief period away from the appellant’s home since
he was
not welcome at his former wife’s home where the appellant
lived.
[23] It is also clear that the
appellant was provided with little if no structure, routine and
nurturing in his home environment.
Although the appellant’s
father was unemployed he testified (and this evidence was not
contested) that his current wife is
employed and supports the family
and that the appellant would be able to live with them in the event
of a sentence such as correctional
supervision being imposed. This
did not appear to weigh with the magistrate who was more concerned,
by all accounts, about the
appellant’s father’s ability
to discipline him.
[24] In my view the magistrate failed
to properly consider all other sentencing options available for the
appellant. He should also
have agreed to the request by the
appellant’s legal representative to further postpone the matter
in order to obtain a correctional
supervision report. In response to
that request the magistrate replied ‘…
.the thing
about the report is it cannot come with a different recommendation.
It can only come with information to indicate whether
he is a
suitable candidate for correctional supervision…If I look at
the information contained in Ms Wood’s report
(i.e. the
probation officer)
it looks like there is quite a lot of stability
in his life and his circumstances and certainly from that point of
view he would
probably be regarded as a suitable candidate for
correctional supervision. However, the question will be whether
correctional supervision
will be a suitable sentence, given the
gravity of the offence and given all the other circumstances that we
are very much aware
of. So I am reluctant at this stage to order that
a further report be compiled. I believe that I have enough
information at hand
to make a decision regarding sentence…based
on the information I have at hand, I am satisfied with the…probation
officer’s report.’
Although the magistrate did
indicate that he would afford the appellant’s legal
representative a further opportunity to place
argument before him in
this regard, the issue of a correctional supervision report was not
raised again by either the magistrate
or the appellant’s legal
representative.
[25] Of further concern is the
probation officer’s view as expressed in her evidence that she
considered a sentence of correctional
supervision to be a ‘
light
punishment’.
When pressed for an explanation by the
appellant’s legal representative she explained that what
concerned her was the seriousness
of the offence and that in her view
the appellant showed no insight into his actions and the consequences
thereof.
[26] Our courts have stressed on
numerous occasions that judicial officers should not hesitate, in
appropriate cases, to make use
of correctional supervision. It has
already been imposed for very serious crimes including murder:
S v
Booysen
1993 (1) SACR 698
(A);
S v Potgieter
1994 (1) SACR
61
(A);
S v Kleynhans
1994 (1) SACR 195
(O); and
S v Ingram
1995 (1) SACR 1
(A). In all of these cases the perpetrators were
adults.
[27] In
S v E
1992 (2) SACR 625
(A) at 633a-b Howie AJA (as he then was) said:
‘
What
is clear is that correctional supervision is no lenient alternative.
It can, depending on the circumstances, involve an exacting
regime,
even virtual house arrest. Its advantage is that it is geared to
punish and rehabilitate the offender within the community,
leaving
his work and domestic routines intact, and without the obvious
negative influences of prison. It can also involve specific
rehabilitative treatment and community service.’
[28] In
S v Schutte
1995 (1)
SACR 344
(C) at 349d-g Steyn J, referring to the unreported judgment
of Conradie J in
S v Harding
quoted a portion of that judgment
as follows:
‘…
correctional
supervision is not a soft sentence…in some ways it is harder
than imprisonment. A cynic once said that the easiest
life on earth
is being a soldier or a nun: you only have to obey orders. Prison is
like that. A model prisoner is the one who best
obeys orders. These
are not ideal circumstances, generally, for the regrowth of
character. Correctional supervision gives an offender
greater scope
for regrowth of character. It takes a great deal of restraint and
determination on the part of a probationer. It
can be very stressful.
A probationer does not have his freedom – far from it –
but he is not cut off from the community
altogether. His support
systems are not destroyed and in this way rehabilitation prospects
are enhanced.’
[29] In the present matter the
appellant was, to all intents and purposes, a first offender. It was
not disputed that he had successfully
completed his period of
rehabilitation for possession of tik. His father is a positive role
model in his life and his uncontested
evidence was that if the
appellant came to live with him he would be able to provide the
necessary support structure. These factors
alone should have caused
the magistrate to consider the report and evidence of the probation
officer with more circumspection.
They should also have caused the
magistrate to critically analyse all other available sentencing
options. That he did not do soresulted
in him imposing a sentence
which was not a measure of last resort, nor was it incarceration
forthe shortest appropriate period
of time.
[30] The magistrate materially
misdirected himself in this respect. This court is thus entitled to
interfere with the sentence imposed.
[31] In the result I propose the
following order:
1. The appeal against conviction is
dismissed and the conviction is confirmed.
2. The sentence imposed on the
appellant is set aside.
3. The matter is remitted to the
trial court to call for a correctional supervision report in terms of
section 276(1)(b)
of the
Criminal Procedure Act, 51 of 1977
.
4. After considering the report
contemplated in paragraph 3 of this order, the trial court shall deal
further with the matter in
accordance with justice.
5. It is ordered that the appellant
be released on bail in an amount of R500.00 on the following
conditions:
(a) That the appellant reports at
the office of the Regional Court Control Prosecutor, Regional Court,
Cape Townwithin seven (7)
days of his release on bail to be apprised
of the date of his court appearance.
(b) To attend court on all such
days to which the matter willbe postponed until the matter
shallfinally be dealt with as contemplated
in paragraph 4 of this
order.
_________________
J I CLOETE
I agree.It is so ordered.
_________________
N J YEKISO