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Last Updated: 17 October 2005
THE SUPREME COURT OF APPEAL
OF SOUTH
AFRICA
Reportable
Case no: 515/04
In the matter between:
MEMORY MUSHANDO MAGIDA
Appellant
and
THE
STATE Respondent
_______________________________________________________
Coram: Navsa,
Ponnan JJA et Maya AJA
Date of hearing: 18 August 2005
Date
of delivery: 26 August 2005
Summary: Appellant’s
AIDS status a factor to be considered in deciding an appropriate sentence
─ magistrate not supplying reasons
for sentence ─ no reasons
requested by court below ─ matter requiring expeditious decision by this
Court ─ principle
of individualisation of sentence restated and
applied.
_______________________________________________________
JUDGMENT
_______________________________________________________
NAVSA
JA:
[1] The appellant pleaded guilty to and was convicted of 99 counts of
fraud in the Bellville Magistrates’ Court. On 30 July
2001 she was
sentenced to 60 days’ imprisonment on each count, of which 40 days’
imprisonment was suspended on condition
that she was not convicted of fraud or
theft or any attempt thereto committed during the period of suspension. The
cumulative total
sentence amounted to 16 years and 3 months’ imprisonment.
The unsuspended term of imprisonment amounted to 5 years, 5 months
and 2 days.
[2] The appellant served part of her sentence but was released on bail
pending her appeal to the Cape High Court. That appeal was
dismissed (per Hlophe
JP and Franks AJ). The court below granted leave to appeal that decision and
further extended bail pending
the outcome of the present appeal.
[3] Before us the appellant applied to have evidence by way of
affidavits admitted on appeal. The affidavits reveal that the appellant
discovered, after she was sentenced, that she had contracted the Human
Immunodeficiency Virus (HIV), which had caused her to develop
full-blown
Acquired Immunodeficiency Syndrome (AIDS). As a result her life expectancy has
been drastically reduced. She and the doctors
treating her describe the
treatment she is receiving which is not available to her in prison. This
evidence is set out in greater
detail later in this judgment. The state did not
oppose the admission of the evidence and, for reasons that will become apparent,
it was admitted on appeal.
[4] The following are the appellant’s
grounds of appeal:
(a) The magistrate did not supply reasons for the sentence imposed by him and the Cape High Court was therefore not at liberty to deal with the question of sentence as though it had been properly imposed;
(b) The appellant’s legal representative before the court below did not properly present her case on appeal and she could therefore not be considered to have had a fair appeal as envisaged by the Constitution;
(c) The appellant’s HIV/AIDS status entitled her to a lesser sentence.
[5] The accused was represented at her trial and
her legal representative presented the following facts from the side-bar (the
appellant
did not testify):
The appellant was 26 years old and was the mother
of a 7-year old daughter who had been placed in the father’s custody. She
was a first offender. The appellant completed matric and had been in several
jobs after that. When she committed the offences in
question she had been
unemployed. The appellant perpetrated the fraud of which she had been convicted
by paying for goods with cheques
from chequebooks obtained by false pretences.
She committed the offences in concert with others.
[6] A probation
officer’s pre-sentencing report was handed in during the trial before the
magistrate. The following additional
relevant facts appear from the report. The
appellant’s father disappeared from her life when she was very young. Her
mother
married another man and left her in the care and custody of her maternal
grandmother. Whilst growing up she moved from relative to
relative. During the
period 1995 to 1999 the appellant worked for a total of six employers. She
contracted tuberculosis in prison
while awaiting trial, for which she received
treatment. The appellant expressed remorse to the probation officer. The latter
recorded
that it was difficult to confirm the information supplied by the
appellant because of lack of time and the absence of contactable
family members,
but that some of the information supplied by the appellant (other than that
recorded above) was false. It was, however,
recorded in the appellant’s
favour that the head of the prison in which the appellant had been detained
described her as well-mannered
and co-operative. The probation officer
considered the offence with which the appellant had been charged as serious, but
did not
make any recommendation in respect of sentence.
[7] That then
was the sum total of the material available to the magistrate in respect of
sentencing. The magistrate supplied no reasons
for the sentence imposed by him.
Reasons were not requested and the court below proceeded without the benefit of
the magistrate’s
reasons.
[8] The appellant’s former legal
representative did not apply to have the evidence referred to in para [3]
admitted in the court
below. It appears that all that he did was to make a
submission (encompassed in three very brief paragraphs in heads of argument)
that the appellant’s HIV status entitled her to a lesser sentence as any
sentence of imprisonment imposed would affect her
more harshly than it would a
healthy person.
[9] At this stage it is necessary to set out in some
detail the evidence presented to us: On applying for bail pending the present
appeal, the appellant described how, without the proper treatment for AIDS, she
would die within a few months ─ even with treatment,
her life expectancy
has been drastically reduced. She described further how, in a
government-sponsored initiative, she is receiving
antiretroviral treatment at
Groote Schuur hospital in Cape Town. Whilst awaiting trial in prison she
contracted tuberculosis very
quickly because she had been HIV positive. The
treatment received at the hospital was not available in prison. The appellant
contracted
shingles and thrush flowing from her AIDS condition. She described in
her affidavit how her diet in prison and a lack of the range
of necessary
vitamins are not conducive to combating her present condition. Whilst in prison
the appellant became sicker. In her
words: ‘My immune system
crashed.’. Her exposure to opportunistic infections in prison increases
the risk to her health.
[11] The doctors treating the appellant at
Groote Schuur confirm that her return to prison will have a serious impact on
her health
and that, without proper treatment, she will die prematurely. They
confirm the effectiveness of highly active antiretroviral therapy
in the
treatment of AIDS. The head of the prison in which the appellant served part of
her sentence confirmed by way of a letter
that nevirapine, a vital
antiretroviral drug in the fight against AIDS, is unavailable in any prison.
[12] The following is the essential part of a very brief judgment in the
court below:
‘The appellant who pleaded guilty knew exactly what she
was doing. When she is in prison she will still be entitled to receive
her
treatment. No case has been made out or no suggestion has been made that she has
been deprived of treatment for her HIV status
by relevant authorities. I am not
aware of any good authority for the view that if someone is HIV positive, he or
she may get away
with murder. In my view the sentence fits the crime. She was
very lucky to get this kind of sentence for the crimes she committed.
I
would dismiss the appeal against sentence as being altogether without
merit.’
[13] In S v Calitz en ‘n Ander 2003 (1) SACR
116 (SCA) this Court
said the following at
121i-j:
‘Hoe dit ook al sy, dit moet beklemtoon word dat
die behoorlike beskerming, enersyds, van ‘n appellant se grondwetlike
reg
tot appèl en, andersyds, die gemeenskap se belang dat oortreders
behoorlik gestraf word, van ‘n regterlike amptenaar
vereis dat deeglike
aandag gegee word aan die formulering en verstrekking van vonnisredes.
Daarsonder word gesonde strafregpleging
belemmer.’
[14] The notice
of appeal in the court below consisted of a letter by the appellant herself. The
legal representative who appeared
on her behalf in the court below did not deem
it necessary to improve on or supplement it.
[15] As stated earlier, the
appellant’s legal representative in the court below appeared to have
contented himself with a submission
from the Bar that the appellant’s AIDS
status entitled her to a lesser sentence. He did not consider it necessary to
request
the magistrate prior to the hearing in the court below to supply reasons
for the sentence imposed. Neither did the court below.
[16] In my view,
the court below erred: first, in not considering that it was necessary to call
on the magistrate to supply reasons
for the sentence imposed; and, second, in
failing to appreciate that, on the new issue raised, it did not have sufficient
evidential
material or an adequate notice of appeal before
it.
[17] Whilst it is correct that any illness does not per se
entitle a convicted person to escape imprisonment, the facts presented to us by
the appellant and the issue raised before the court
below comprise matter
forming part of the totality of the circumstances of a convicted person that
ought to be considered in order
to do justice both to the person to be sentenced
and to society. See S v Berliner 1967 (2) 193 (A) at 199F-G and S v C
1996 (2) SACR 503 (T) at 511g-h. This Court has for decades
emphasised the importance of the individualisation of sentence. See in this
regard S v Blank 1995 (1) SACR 62 (A) at
70f-71c.
[18] In S v Cloete 1995 (1) SACR 367 (W)
and S v C, supra, it was held that a court, in considering an
appropriate sentence, may take into account a convicted person’s
ill-health
and how it may relate to the effect of a contemplated sentence. Thus,
for example, a particular sentence may be rendered more burdensome
by reason of
an offender’s state of health.
[19] In respect of treatment that may
or may not be available in particular prisons, an appropriate order - after an
investigation
of all the facts - may address the needs of the person to be
sentenced.
[20] In the present case, where a pertinent issue was raised
on appeal, it ought rightly to have been considered and explored further.
Ideally the matter ought to be remitted to the magistrate for a reconsideration
of the appropriate sentence. However, the circumstances
in the present case are
such as to warrant an expeditious decision. We have all the necessary facts at
our disposal and given the
history of the matter and the misdirections alluded
to, we are at large in deciding an appropriate sentence.
[21] The
appellant was arrested on 19 July 2000 and remained in custody until she was
sentenced on 30 July 2001. She remained in prison
until 24 November 2003 when
she was released on bail pending the outcome of her appeal in the court below.
The appellant thus spent
slightly more than 40 months in detention. Having
regard to all the factors referred to above, including the fact that the
appellant
may die soon, and considering the seriousness of the offence, the
interests of the appellant and of society, I agree with the submission
by
counsel for the State and the appellant that further imprisonment is
unwarranted. In my view, a sentence of imprisonment equal
to the time spent in
prison subsequent to the date on which the appellant had been sentenced by the
magistrate is an appropriate
one.
[22] The following order is
made:
The appeal is upheld. The sentence imposed by the trial court is set
aside and the following sentence is substituted:
‘The accused is
sentenced to imprisonment for a period of two years, three months and 25
days.’
The substituted sentence is antedated to 30 July
2001.
[23] The effect of the substituted sentence is that the appellant
is not to undergo any further period of imprisonment.
_________________
M S NAVSA
JUDGE OF
APPEAL
CONCUR:
PONNAN JA
MAYA AJA
SAFLII:
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