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[2010] ZAECGHC 40
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Vika v S (CA&R316/2009) [2010] ZAECGHC 40; 2010 (2) SACR 444 (ECG) (27 May 2010)
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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE - GRAHAMSTOWN)
Case No: CA&R316/2009
Date Heard: 12 May 2010
Date Delivered: 27 May 2010
In the matter between
MVELISI VIKA APPELLANT
and
THE STATE RESPONDENT
JUDGMENT
ROBERSON J
[1] The appellant was convicted, after pleading guilty, in the Regional Court, Port Elizabeth, of two counts of contravening s 1(1) of the Criminal Law Amendment Act 1 of 1988 (‘the Act’). S 1(1) of the Act reads as follows:
“Any person who consumes or uses any substance which impairs his or her faculties to appreciate the wrongfulness of his or her acts or to act in accordance with that appreciation, while knowing that such substance has that effect, and who while such faculties are impaired commits any act prohibited by law under any penalty, but is not criminally liable because his or her faculties were impaired as aforesaid, shall be guilty of an offence and shall be liable on conviction to the penalty which may be imposed in respect of the commission of that act.”
[2] The specific acts prohibited by law, which the appellant committed, were murder (count 1) and attempted murder (count 2). Both counts were treated as one for the purpose of sentence and the appellant was sentenced to fifteen years imprisonment. As will be seen from the subsection, a person convicted will be liable to the same sentence as may be imposed for the prohibited act. S 51(2) of the Criminal Law Amendment Act 105 of 1997 provides that the minimum sentence for a first offender, for murder in circumstances other than those where life imprisonment is the prescribed sentence, is fifteen years imprisonment. The magistrate found that no substantial and compelling circumstances existed justifying a lesser sentence on count 1, as provided for in s 51(3) of Act 105 of 1997.
[3] This appeal is directed at the sentence of fifteen years imprisonment.
[4] I must first deal with the ground of appeal that no reference was made in the charge sheet to the provisions of s 51(2) of Act 105 of 1997. It appears from the address of the appellant’s legal representative on sentence, that she was aware that the minimum sentence applied to count 1, because she submitted in argument that substantial and compelling circumstances existed justifying a departure from the minimum sentence. In S v Ndlovu 2003 (1) SACR 331 (SCA) at 337a, Mpati JA said:
“The enquiry, therefore, is whether, on a vigilant examination of the relevant circumstances, it can be said that an accused had had a fair trial.”
(See also S v Cunningham 2004 (2) SACR 16 (ECD) at 19b-d.)
[5] In addition to her knowledge that the minimum sentence of fifteen years imprisonment applied to count 1, apparent from her address, the appellant’s legal representative did not appear to have been taken by surprise about its application. The prosecutor at the trial also submitted that the court might find that substantial and compelling circumstances existed. In these circumstances I am of the view that the lack of reference in the charge sheet to reliance on the minimum sentence provisions, did not render the trial unfair.
[6] This court may only interfere with the sentence if there was a material misdirection on the part of the magistrate or the sentence is such as to be startlingly disproportionate to the offences.
[7] The Act came into being following an investigation by the South African Law Commission, which concluded that public opinion demanded that a person who committed a serious crime should not rely on his drunkenness in order to escape conviction or the usual penalty for such crime. (Milton South African Criminal Law and Procedure, Volume III, Statutory Offences, Chapter F8.)
[8] The need to apply caution and not to punish an offender for the prohibited acts (in this case murder and attempted murder) has been emphasised by our courts. (S v Maki 1994 (2) SACR 414 (E) at 417e-f and 418f-g, S v Ingram 1999 (2) SACR 127 (WLD) at 135f-i, S v D 1995 (2) SACR 502 (C) at 510i-511b.)
However, as Jones J said in Maki (supra) at 418f:
“Once the law criminalises the doing of such an act, its nature and consequences must become relevant.”
[9] According to the appellant’s statement in terms of s 112(2) of the Criminal Procedure Act 51 of 1977, on 26 April 2008 he invited some friends for a party. At the party he consumed alcohol continuously during the evening and the last he recalled was that he was outside in the yard and music was playing. The following afternoon his sister woke him up and told him that he had stabbed the deceased in count 1, and the complainant in count 2. He had no recollection of these assaults. The deceased and the complainant in count 2 were his friends.
[10] Further details of the assaults were given by the prosecutor at the trial, from the bar, to which no objection was made by the appellant’s legal representative. The prosecutor referred to a witness’s statement according to which the appellant had been fighting with the deceased in count 1 and had been disarmed of the knife he had in his possession. The appellant then fetched two knives and stabbed the deceased. He then fought with the complainant in count 2 and stabbed him as well.
[11] It was submitted on behalf of the appellant that the information provided by the prosecutor had been irregularly admitted. In view of the fact that it was not objected to at the trial, I am of the view that there was no irregularity.
[12] The appellant’s personal circumstances were as follows: he was thirty years old at the time of the offences; he was a first offender; he had obtained Grade 12 and had completed a security guard course; he had been employed as a security guard since February 2009; he supported his two dependent children, and, if he was able, also helped to support his parents.
[13] It was submitted on his behalf at the trial that in view of his pleas of guilty, he took responsibility for his actions, and that he regretted his actions, having taken the life of a friend and injured another friend. It was also submitted that in view of his clean record he did not have a propensity to commit these types of offences.
[14] It was submitted on appeal that the magistrate had misdirected himself in not having regard to the appellant’s personal circumstances, and that the sentence was startlingly inappropriate.
[15] The magistrate’s judgment on sentence was very short. After repeating the provisions of s1 of the Act, he proceeded to say the following:
“And you have been found guilty under this sect. 1. Though you claimed that you were under the influence of alcohol, you committed fairly serious offences. You killed Batandwa Ndalase. You were stopped from killing (indistinct), dispossessed of the knife then you went away to fetch two knives. Then you stabbed and attempted to kill Sandasile Nxiki.
Under this Act you are found guilty of, it directs the Court to deal with the offence if you are found guilty under this Act. But the Court will treat you very leniently and will keep these two counts as one for purposes of sentence. But you have committed offences that warrant a custodial sentence and nothing else.”
[16] In these few lines there is no mention of the appellant’s personal circumstances, and the magistrate seems to have had regard only to the seriousness of the offences. It appears that no regard was paid to the caution referred to in paragraph [8] above. In saying “though you claimed that you were under the influence of alcohol, you committed fairly serious offences”, the magistrate seems not to have appreciated the difference between the offences of which the appellant had been convicted, and the offences of murder and attempted murder. No mention was made of substantial and compelling circumstances, the absence or existence of which the magistrate was obliged to consider before imposing the minimum sentence. I consider all these factors to be misdirections on the part of the magistrate, entitling this court to interfere with the sentence.
[17] The appellant’s personal circumstances in my view weighed strongly in his favour. His clean record, his pursuit of a qualification, his employment, and support of his family, all show that he is, but for these offences, a useful and responsible member of society. He also regretted his actions. These factors amount cumulatively, in my view, to substantial and compelling circumstances in respect of count 1.
[18] Sight must not be lost however of the serious consequences of the appellant’s actions. These were not petty assaults. A life was taken violently. According to the post mortem report, the deceased died of a stab wound to the heart. According to the J88 form, the complainant in count 2 had a five to six centimetre stab wound in the upper chest.
[19] The interests of society must also be taken into account. There is a high incidence of alcohol related assaults which lead to death and serious injury. The courts must be seen to impose sentences which deter this kind of behaviour, and have the effect of protecting people’s bodily integrity.
[20] In all these circumstances a custodial sentence is in my view the only appropriate one.
[21] In considering an appropriate term of imprisonment, I have had regard to the sentences imposed in other cases where the accused were convicted of the same offence, namely contravening s 1(1) of the Act.
[22] In Maki, the accused had consciously broken into the home of the deceased, an eighty four year old woman, and thereafter in a drunken state strangled her. He had previous convictions for possession of dagga, assault with intent to do grievous bodily harm, attempted rape and theft. He was sentenced to fifteen years imprisonment. Jones J said at 420a-b:
“The accused is not a youngster who, for the first time, had too much to drink and dabbled with dagga. On the contrary, he has a criminal record for violent acts and for involvement with dagga. Through his counsel he admits to longstanding serious substance abuse. His character is malformed. He lacks discipline. This sort of thing could happen to him again. In a case such as this the interests of society must prevail over the interests of the individual offender.”
[23] In S v Pietersen 1994 (2) SACR 434 (C), the accused had strangled a fellow inmate in a prison cell. He had ten previous convictions for crimes of violence. He was sentenced to seven years imprisonment, two of which were suspended.
[24] In Ingram (supra), the appellant was a twenty five year old first offender who had stabbed the deceased once, in the heart. He expressed genuine remorse for his conduct. His sentence was altered on appeal to five years imprisonment in terms of s 276 (1)(i) of Act 51 of 1977.
[25] In D (supra) the appellant had attempted to rape an eleven year old girl. He was a forty four year old first offender. The complainant had not suffered physical injuries and there was no evidence of psychological damage. The sentence was altered on appeal to three years imprisonment, half suspended.
[26] What emerges from these sentences, in my view, is that appreciably lower sentences were imposed than if the accused / appellant had been convicted of the underlying prohibited act. In Maki, for example, Jones J said the following at 417 f-h:
“It is perhaps worthwhile therefore to speculate on the possible sentences which would have been imposed or considered if the accused had killed the deceased with full criminal capacity. If he had had less liquor to drink and if he had been sufficiently in command of his faculties to be convicted of murder, his intake of alcohol might have been a mitigating factor. He might also have been able to point to other mitigating factors in explaining what happened inside the flat. But the many aggravating factors, which are self-evident, would have made the death penalty one of the options to be given serious consideration. If the Court had come to the conclusion that the death sentence was not the only proper sentence, the other options of imprisonment for life or imprisonment for a lengthy term of 20 or 25 years would have been considered. It is my view that it is extremely unlikely that a sentence of less than 20 years would have been imposed for this kind of murder.”
I do not intend to convey however that there will not be cases where as severe a sentence would be imposed, as would have been imposed as if the accused had full criminal capacity.
[27] In the present case, having considered all the circumstances of the offences, and having compared these circumstances to those in the cases to which I have referred, I am of the view that a sentence of seven years imprisonment on count 1 and four years on count 2 would be appropriate. The two offences appear to have been closely linked in time and circumstance, and I consider it appropriate that the sentences should run concurrently.
Order
[28] The appeal succeeds. The sentence of fifteen years imprisonment imposed by the magistrate is set aside and substituted as follows:
[28.1] Count 1: seven years imprisonment
[28.2] Count 2: four years imprisonment
[28.3] The sentences are to run concurrently, and are ante-dated to 19 August 2009.
_______________
J.M. ROBERSON
JUDGE OF THE HIGH COURT
PIENAAR AJ
I agree
___________
B.J. PIENAAR
JUDGE OF THE HIGH COURT (ACTING)
Appearances:
For the appellant: Adv MM Xozwa instructed by Justice Centre,
Grahamstown
For the Defendant: Adv H Obermeyer instructed by DPP, Grahamstown