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[2015] ZAWCHC 206
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Cloete v S (A148/2015) [2015] ZAWCHC 206 (16 September 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NUMBER
:A148/2015
DATE
:16
SEPTEMBER 2015
In
the matter between:
LORENZO
VIRGIL
CLOETE
................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
J
U D G M E N T
RILEY,
AJ
:
The
appellant was charged with murder (read with the provisions of
section 51
of the
Criminal Law Amendment Act 105 of 1997
), in the
Regional Court at Parow. According to the charge sheet the
State alleged that the appellant had murdered the deceased
by
stabbing him with a knife. The appellant, who was legally
represented in the Court
a quo
,
pleaded not guilty and averred that he had acted in self defence.
On 28
August 2012, the appellant was convicted of murder and on the same
day sentenced to 15 years imprisonment, the court
a
quo
having found that there was no
substantial and compelling circumstances which warranted a deviation
from the prescribed minimum
sentence. On 12 November 2014 the
appellant applied for condonation of the late application for leave
to appeal and for leave
to appeal against his sentence only.
The trial magistrate had in the interim passed on and both
applications were heard before
another regional magistrate.
Although the condonation application was successful, the appellant’s
application for leave
to appeal against his sentence was refused.
The appellant was granted leave to appeal against sentence on 23
March 2015 after
successfully petitioning this court.
The
facts sustaining the conviction are briefly as follows: On 5 February
2010 at about half past eight in the evening an argument
arose
between certain residents at Springbok Place, Elsies River. The
deceased, who was not part of the argument, arrived
at the scene
whilst a certain Marlin was being chased by two others.
The
deceased then ran after this group presumably to see if Marlin would
be caught by his pursuers. When the deceased and
the others ran
past a park where the appellant and his friends were standing and
drinking, the appellant then ran after the deceased.
When he
reached the deceased he then stabbed the deceased from behind against
the right side of his head. The appellant then left
the scene.
The deceased was taken from the scene by ambulance and died from the
wound inflicted by the appellant. According
to the report on
the medico-legal post-mortem examination conducted on the deceased,
the fatal stab wound is described as situated
on the right fronto
parieto temporal region. The wound measured 25 x 5mm and the
wound track was directed medially and slightly
inferiorly, passing
through skin and subcutaneous tissue with a fracture of the skull at
the right fronto perioto temporal region
into the brain. The
trial magistrate correctly rejected the appellant’s version
that he had acted in self defence and
convicted him of murder of the
deceased.
It is
common cause that the appellant was 18 years old at the time that he
committed the murder and 20 years old when the sentence
was imposed
upon him. In his judgment on sentence, the trial Magistrate
stated the following:
“
Ek neem in ag dat u jonk was ten tye van
die pleeg van die misdaad. Dit is seersekerlik ʼn faktor
wat belangrik is om
in ag te neem en wat in die weegskaal gegooi moet
word wanneer die Hof kyk na wat ʼn gepaste vonnis is. Dit
sal my nie
verbygaan nie. Mens is nie daar om wraak te neem
nie. ʼn Hof is nie daar om wraak te neem of om ʼn
beskuldigde
te knak nie. Dit is verseker ʼn aspek wat die
Hof deeglik moet in ag neem.”
Notwithstanding
the trial magistrate’s remarks about the appellant’s
youthfulness at the time of the commission of the
offence, he
concluded that insufficient substantial and compelling circumstances
was present to depart from the prescribed minimum
sentence and then
sentenced the appellant to 15 years direct imprisonment. In
this court it was submitted and contended on
behalf of the appellant
that the trial court had erred and misdirected itself in not finding
that substantial and compelling circumstances
were present
cumulatively in that the appellant was 18 years old at the time of
the commission of the offence.
Mr
Raphels, after being questioned by my learned brother Binns-Ward J,
conceded that what ought to have happened is that the trial
magistrate ought to have requested a pre-sentence report in regard to
the appellant’s personal circumstances before sentencing
the
appellant.
The
attack by the appellant on the deceased was utterly callous.
Our courts’ have repeatedly held that society demands
that
persons who make themselves guilty of crimes of this nature must be
severely dealt with.
In
cases such as the present, the element of retribution and deterrence
rather than the interest of the offender come to the fore
in the
assessment of an appropriate sentence. Our courts’ have
however also consistently emphasised the importance
of obtaining a
pre-sentence report in the case of juvenile offenders, even if the
offender was over the age of 18 at the time of
the commission of the
offence.
S v Van Rooyen
2002 (1) SACR 608
(C) at 611i-612b and
S
v Janson
1975 (1) SA 425
(A) at
426H-428A.
In
dealing with juveniles or persons of relatively young age as in the
present matter, courts’ must “ensure that whatsoever
sentence he or she decided to impose will promote the rehabilitation
of that particular offender and have as its priority the
reintegration of the youthful offender back into his or her family
and of course the community”. See
S
v Pulwane
2003 (1) SACR 631
(T) and
Brand v S
2005
(2) All SA 1
(SCA);
2006 (1) SACR 311
(SCA) para 20.
In
S
v N and Another
2015 ZAWCHC 5
, (9
January 2015), a recent judgment of this court Binns-Ward J (Bozalek
J concurring), after a detailed and critical analysis
of section 28
and 7 of the Constitution and the provisions of the
Child Justice Act
75 of 2008
stated at para 9 as follows:
“
The aforementioned provisions of the
Child Justice Act confirm
that there is no arbitrary end to childhood
for children who have committed offences before they attained the age
of adulthood,
but are still being processed through the criminal
justice system when they turn 18. The Legislation is thus
recognisably
directed at promoting the spirit, purport and objects of
section 28(1) and (2) of the Constitution. One need not go
beyond
the preamble of the Act to appreciate this. It does so
by giving a generous and expansive effect to the Constitutional
provisions
and avoids any reading down of them that a misguidedly
narrow application of the definition in section 28(3) of the Bill of
Rights
could bring about. The effect is manifest, for example
by the provision that child offenders may be committed in terms of
section 76 of the Act to compulsory residence in youth care centres
until they attain the age of 21. The reasoning behind
the
approach evident in the wider application of the
Child Justice Act is
manifestly sound. It has an effect on the manner in which
offenders falling within its wider definition are processed through
the criminal justice system from arrest or arraignment. Insofar
as sentencing is concerned, it is incidentally in accordance
with the
Constitutional Court’s application of
section 28(1)(g)
in
Centre for Child Law and Mpofu in respects of persons who are over 18
when they come up for sentencing in respect of offences
committed
while they were still under that age.
[10] Children are deserving of different
treatment from that given to adults by virtue of factors such as
their physical and
psychological immaturity which renders them more
open to ‘impetuous and ill-considered actions and decisions’
and thus,
in general less morally culpable for their wrong-doings
than adults are. When a person commits an offence while under
the
age of 18 their conduct falls to be judged in the context of
these considerations. It would make no sense then to treat them
as adults for sentencing purposes simply because the intervening
passage of time has resulted in their being adults when sentencing
occurs. That would mean punishing them for what they had done as
children as if it had been done when they were adults. That
such an approach would impinge on the substance of the rights
provided in terms of section 28 of the Constitution is axiomatic,
or
so I would have thought. The point is borne out by the striking
down by the Constitutional Court in the Centre for Child
Law of
provisions which were directed at making the minimum sentencing
regime prescribed in terms of the
Criminal Law Amendment Act 105 of
1997
applicable to certain offences committed by persons when they
were between the ages of 16 and 18 as being unjustifiably limiting
of
the rights in terms of section 28 of the Constitution. It is
obvious that many of the persons affected would be over 18
by the
time they came to be tried and sentenced.”
Even
though the appellant in this matter was 18 at the time of the
commission of the offence, I am of the view that the principles
outlined herein before remain influential. There can be no
arbitrary end to childhood just because a person has turned 18.
Although the appellant testified under oath, very little information
was placed before the trial court about his personal circumstances,
his background and in particular how he had become involved in crime.
What we
do know is that the appellant lived with his mother at Elsies River.
It is not clear whether he completed Grade 7
or Grade 8 at school nor
is it clear why he left school. After leaving school the
appellant worked, distributing pamphlets
and later worked in
construction for a few weeks. According to the SAP69(C)(the
criminal record of the appellant), he had
the following convictions;
on 26 April 2006 he was convicted for illicit possession of drugs;
the imposition of sentence was postponed
for a period of 1 year and
the appellant was unconditionally released in terms of
section
297(1)(A)(2)
of the
Criminal Procedure Act 51 of 1977
.
On 22
August 2006 he was convicted of theft. On this occasion the
imposition of sentence was postponed for a period of 5 years
and he
was again unconditionally released. On 1 December 2008 he was
convicted of assault and cautioned and discharged.
On 27
October 2008 he was again convicted of theft and sentenced to 3
months imprisonment, which was suspended for 5 years on certain
conditions and he was placed under supervision of a probation officer
for a period of 1 year. It further appears that prior
to the
commencement of the murder trial and during 2010 appellant was
sentenced to imprisonment for theft and assault with intent
to do
grievous bodily harm.
The
information that was placed before the court by the appellant in this
regard is however not clear and ought to have been properly
clarified
by evidence. A consideration of the appellant’s evidence
on sentence leaves one with more questions than
answers. Even
though sentencing is a vitally important component of the criminal
trial, I agree with the view that it often
is dealt with
superficially and with too little care by both judicial officers and
legal representatives for the prosecution and
the accused.
In my
view the present matter is a perfect example of a case where lack of
proper attention was given to the issue of the determination
of an
appropriate sentence, particularly since the trial magistrate was
required to give consideration to whether or not the prescribed
minimum sentence should be imposed. The original sentencing
court did not sufficiently appreciate that the appellant had
just
moved out of his childhood. This is not to say that the
sentence imposed by the magistrate is necessarily inappropriate,
but
the full picture relating to the appellant’s personal
circumstances and background was not properly placed before the
court. In my view a decision on whether or not substantial and
compelling circumstances existed to justify a departure from
the
prescribed minimum sentence regime could only be made with more
insight into the appellants’ personal circumstances and
background.
Based
on the principles as set out in the above mentioned cases, I am
satisfied that the trial magistrate had misdirected himself
and ought
to have requested a probation officer’s report of his own
accord after convicting the appellant. In the circumstances
I
am of the view that the matter should be remitted to the trial court
for consideration of sentence afresh after a proper investigation
is
done by a probation officer into the appellant’s background,
his involvement in crime and the prospects of his rehabilitation.
In the
result I propose the following order:
(1)
THE
APPEAL AGAINST SENTENCE IS UPHELD AND THE SENTENCE OF 15 YEARS
IMPRISONMENT IMPOSED BY THE TRIAL COURT IS SET ASIDE.
(2)
THE
MATTER IS REMITTED TO THE TRIAL COURT FOR URGENT CONSIDERATION OF
SENTENCE AFRESH IN ACCORDANCE WITH THE JUDGMENT OF THIS COURT.
RILEY,
AJ
I agree
and it is so ordered.
BINNS-WARD,
J