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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 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 “a
lonely and onerous task”[1].
For those who must shoulder that responsibility in society’s 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:
“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.)”
“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.”
[5]
Schedule 2 is as follows:
“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.”
[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 “business as usual” 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
public’s 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, “a
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
not”. 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 “substantial” and “compelling” 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
“exceptional” 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 “shocking”,
“startling” or “disturbingly inappropriate”. 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 (“shocking”,
“startling”, “disturbingly inappropriate”
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
“justify” (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
“business as usual” 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 “substantial and compelling circumstances” 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 “substantial and compelling” are to be examined
separately
or conjointly in attempting to arrive at Parliament’s 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
“or” in favour of the word “and” 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 one’s 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 (“‘n skokkende
onreg” 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
“extenuating
circumstances” 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 legislature’s 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 courts’ 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
(“substantial
and compelling”) 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 deceased’s house
together with him, his wife
Carol and their children. Precisely what the nature
of appellant’s 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 deceased’s
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 “drink pills” 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 “‘n hond se lewe”. 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 Carol’s children would thereafter be able to lead
“‘n
baie lekker lewe”. 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 “Henna
nou!” 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 Mofokeng’s case was that “for 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 ‘compelling’ the
conclusion that the imposition of a lesser sentence than that
prescribed by
Parliament is justified”.
[31] As I have indicated earlier in
this judgment the requirement that the circumstances be
“exceptional” 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 “lekker lewe” of which Carol had spoken.
He adverted
to the prevalence of crimes of violence in the country and the community’s
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 appellant’s deed.
The learned
Judge regarded appellant’s remorse induced voluntary admission of her
guilt to her friends as possibly the strongest
point in appellant’s 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 Judge’s 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 J’s 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 Carol’s influence by reason of her status as
a
resident in the latter’s home at the latter’s 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 (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][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.
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