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Thomas and Another v S (CC86/2009) [2010] ZAECGHC 48 (15 June 2010)

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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION – GRAHAMSTOWN)


CASE NO: CC86/2009

DATE HEARD: 11/6/10

DATE DELIVERED: 15/6/10

NOT REPORTABLE


In the matter between:


THE STATE


and


MANDLA THOMAS ACCUSED NO. 1

MELIKHAYA NCAPAYI ACCUSED NO. 2



JUDGMENT: SENTENCE


PLASKET J


[1] I convicted each of the accused of four counts of murder and one count of robbery with aggravating circumstances, having found that the State had proved beyond reasonable doubt that, on 25 September 2008, they had forcibly gained entry into the shop and living quarters of the deceased, robbed them of a number of their possessions and killed all four of them. It is now my task to sentence them for these crimes.


[2] The provisions of s 51(1), read with Part I of Schedule 2, of the Criminal Law Amendment Act 105 of 1997 apply to the murder convictions. Because the deaths of the deceased were caused during the course of a robbery with aggravating circumstances and in the execution or furtherance of a common purpose, I am required to impose sentences of life imprisonment in respect of each murder unless, in terms of s 51(3) of the Act, I find substantial and compelling circumstances to be present which justify less severe sentences. In terms of s 51(2) of the Act, read with Part II of Schedule 2, the minimum sentence for robbery with aggravating circumstances, for a person who has not been convicted of this offence before, is 15 years imprisonment. I am obliged to impose this sentence unless, once again in terms of s 51(3), I find substantial and compelling circumstances to justify a less severe sentence. I am, however, entitled to impose a more severe sentence than 15 years imprisonment in my discretion if I am of the view that the circumstances warrant this. See S v Mbatha 2009 (2) SACR 623 (KZP).


[3] The way in which sentence is to be approached when the Act applies is now well known. First, when sentencing for crimes specified in the Act, a court is 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 …’. Secondly, while the Act has shifted the emphasis to ‘the objective gravity of the type of crime and the public’s need for effective sanctions against it’ discretion to deviate from the prescribed sentence was granted to courts ‘in recognition of the easily foreseeable injustices which would result from obliging them to pass the specified sentences come what may’. See S v Malgas 2001 (1) SACR 469 (SCA), at paragraph 8.


[4] Thirdly, while a court may deviate from the sentences prescribed if ‘substantial and compelling circumstances’ are present, it is impermissible to deviate from the prescribed sentence ‘lightly and for flimsy reasons which could not withstand scrutiny’. Fourthly, all factors relevant to determining sentence remain relevant when the Act applies and a sentencing court must look to the ‘ultimate cumulative impact’ of all of these factors in order to determine whether a departure from the prescribed sentence is justified. See S v Malgas, at paragraph 9.


[5] Finally, when a court is convinced that the imposition of the prescribed sentence would be unjust or ‘disproportionate to the crime, the criminal and the legitimate needs of society’ that in itself constitutes substantial and compelling circumstances requiring that a less severe sentence than the prescribed sentence must be imposed. See S v Malgas, at paragraph 22; S v Fatyi 2001 (1) SACR 485 (SCA), at paragraph 5; S v Vilakazi 2009 (1) SACR 552 (SCA), at paragraphs 14-15.


[6] Within this sentencing regime, because all factors that were relevant to sentence when trial courts had a freer discretion remain relevant, the determination of an appropriate sentence requires the consideration and balancing of three sets of factors, namely the nature and seriousness of the crime, the interests of society and the personal circumstances of the offender. See S v Zinn 1969 (2) SA 537 (A), 540G-H. I shall deal with these factors in turn.

[7] The deceased, who were Somali nationals, were a family of four made up of a mother, her 19 year old son, her 14 year old son and her 12 year old daughter. They lived in and owned a shop called Moha’s Shop in Tambo Village between Whittlesea and Queenstown. In the judgment in which I convicted the accused, I said the following of the nature of the murder of the four deceased:

[3] Dr Mzukisi Kolosa performed the post mortem examinations on the bodies of all four of the deceased. From his reports and the evidence he gave it is clear that the deceased were attacked with great ferocity and a great deal of force was used against them. Sahra Omar Farah, for instance, had multiple incised wounds on her scalp, 21 deep incised wounds on her left upper neck, three incised wounds on the right side of the neck, multiple deep incised wounds on the posterior neck and shoulders, a great many incised wounds on other parts of her body (such as 15 ‘deeply incised wounds’ to the chest) and a fractured skull caused by the application of sharp force. Apart from the seven instances where Dr Kolosa noted multiple incised wounds to various parts of her body he recorded in addition a further 51 individual stab wounds.

[4] The post mortem examination reports of Ms Farah’s children are similar. All suffered a large number of stab wounds, particularly into the neck. The 12 year old Issa Chasso Osman, for instance, was stabbed 23 times in her neck and multiple incised wounds ‘dispersed throughout the scalp ranging from 5mm to 26mm’ were recorded by Dr Kolosa. He testified that all four of the deceased’s bodies smelled of paraffin and he noticed that skin, on large parts of their bodies, was peeling off. This, he said, was the result of paraffin having been poured over their bodies. One can but speculate that it was the intention of their killers to set their bodies alight.’


[8] The post-mortem examination reports, the photographs of the bodies of the deceased and the photographs of their bloodied and ransacked shop and living quarters make for disturbing reading and viewing. It is impossible to find adequate words to describe the barbarity and depravity of the crimes committed by the accused. All of their victims were vulnerable in the sense that they were either young or female or both. Two of the four deceased were children. This aggravates the seriousness with which these crimes must be regarded. One can imagine the terror that the deceased must have endured when the accused broke into their home and attacked them, and the painful deaths the deceased endured at their hands. As if to underscore the gross lack of respect for the human dignity of the deceased, the accused saw fit to douse their bodies with paraffin.


[9] In all of this, because of the shocking nature of the murders, the robbery tends to pale into insignificance. It is, however, a serious offence in its own right. The accused planned the robbery beforehand. They armed themselves with knives in order to commit it, and they forcibly entered the sanctity of the home, as well as the shop, of their victims. They turned the shop and living quarters upside down as they pillaged the stock of the shop and the hard-earned money of the deceased.


[10] In a case such as this, the interests of society comes strongly to the fore. Law abiding citizens are justifiably sick and tired of the high levels of crime in the country and particularly the levels of mindlessly brutal crimes like those committed by the accused in this case. When the victims of such crimes are vulnerable members of society, the need for stern, deterrent sentences that reflect the abhorrence of law abiding citizens for such conduct is clear, and society’s expectation that stiff sentences will be imposed is both understandable and reasonable. In S v Marhotya and another ECD 2 March 2007 (case no. CC14/07) unreported, at paragraph 11, I made the point in a case also involving an extreme level of brutality directed at an old woman that ‘[o]ur courts have made it abundantly clear that they are prepared to impose stern sentences on those who prey on the vulnerable and weak’.


[11] I turn now to the personal circumstances of the accused. I shall deal with accused no. 1 first. He was 23 years old at the time that the offences were committed. His parents both died, within a short period of each other, when he was a teenager. Soon after his mother died, he was convicted of the offences of robbery, housebreaking with intent to steal and theft and theft. He was sentenced on 24 January 2003 to six months imprisonment in respect of each offence, suspended conditionally for five years. Leaving aside a previous conviction that is not relevant, he was then convicted of housebreaking with intent to steal and theft. On 3 October 2005, he was sentenced to six months imprisonment.


[12] Accused no. 1 was, after the death of his parents, raised by his grandmother. She was unable to manage financially to keep him at school and, as a result, he dropped out of school after having completed standard 5. He has performed odd jobs since then cleaning yards. This would not have brought him much in the way of income. It can be accepted that accused no. 1 is a poor, rural person with little education.


[13] Accused no. 2 was 27 years old at the time the offences were committed. He has no previous convictions. He too dropped out of school for financial reasons having completed standard 5. He is unemployed and lived with his elderly parents both of whom received grants from the State. He is single and has no children.


[14] It was argued on behalf of both of the accused that their personal circumstances, together with the facts that they are both relatively young and have prospects for rehabilitation constitute substantial and compelling circumstances that justify sentences less severe than those prescribed by the Act.


[15] As for the age of the accused, I am of the view that they cannot be described as callow youths. When the offences were committed, accused no. 1 was two years short of his mid-20’s while accused no. 2 was two years past his mid-20s. In any event, even the relative young age of the accused must be viewed within the broader context of the crimes that they committed. In this case the callous, brutal and senseless nature of the crimes out-weigh the personal circumstances of the accused that are of a mitigatory nature, including their ages. See S v Mohlobane 1969 (1) SA 561 (A), at 565C-D; S v Ngwala-Ngwala and another ECD 1 June 2009 (case no. CA6/09) unreported, at paragraph 16.


[16] A similar argument was raised in Director of Public Prosecutions, KwaZulu-Natal v Ngcobo and others 2009 (2) SACR 361 (SCA), a case in which the respondents – the accused in the court below – were 20, 20 and 22 years old. They, like the accused in this case, were poor rural men who had broken into the home of the employer of one of them and had brutally murdered him and robbed him of his possessions. In rejecting their age as a mitigating factor, Navsa JA held at paragraph 18 that ‘[n]one of the respondents demonstrated immaturity, nor was it evident that any one of them was subjected to peer or undue pressure by one or both of the others’. He also found that ‘the manner in which entry was gained to the deceased’s house’ as well as ‘the brutal nature of the murder’, and certain other factors such as their lack of remorse were ‘all indicative of a calculated bloody-mindedness, belying their relative youth’. In my view, for much the same reasons, the age of the accused in this matter – and I am hesitant to refer to it as ‘relative youthfulness’ -- cannot avail them.


[17] I am also unconvinced of the accused prospects of rehabilitation. There are no facts before me that would justify a finding that they have good prospects of being rehabilitated in prison and should therefore be sentenced to terms of imprisonment of shorter duration than life imprisonment. In any event, even if there were prospects of rehabilitation, they like any other mitigatory factor must be viewed in the full context of the accuseds’ personal circumstances and their deeds. Such is the depravity of their deeds that whatever prospects of rehabilitation they may be said to have pale into insignificance. See S v Stonga 1997 (2) SACR 497 (O), at 500i-501e; S v Tikini 2008 (1) SACR 42 (E), at paragraphs 20-22.


[18] I have considered the personal circumstances of the accused but conclude that nothing in those circumstances, whether individually or cumulatively, is weighty enough to constitute substantial and compelling circumstances justifying sentences less severe than those prescribed by the Act. I take the view, however, that in respect of accused no. 1, his previous convictions for robbery, housebreaking with intent to steal and theft and theft justifies an upwards departure from the prescribed sentence in respect of the sentence for robbery with aggravating circumstances, especially when it is borne in mind that the offences in this matter were committed nine months after the suspended sentences had expired and that he committed a further act of housebreaking with intent to steal and theft in 2005.


[19] For the reasons stated above, the following sentences are imposed.

(a) Accused no. 1 is sentenced as follows:

(i) to life imprisonment in respect of count 1;

(ii) to life imprisonment in respect of count 2;

(iii) to life imprisonment in respect of count 3;

(iv) to life imprisonment in respect of count 4; and

(v) to 17 years imprisonment in respect of count 5.

(b) Accused number 2 is sentenced as follows:

(i) to life imprisonment in respect of count 1;

(ii) to life imprisonment in respect of count 2;

(iii) to life imprisonment in respect of count 3;

(iv) to life imprisonment in respect of count 4; and

(v) to 15 years imprisonment in respect of count 5.




____________________________

C. PLASKET

JUDGE OF THE HIGH COURT



APPEARANCES

For the State: Mr G Turner of the office of the Director of Public Prosecutions, Grhamstown

For accused no. 1: Mr A De Jager of the Justice Centre, Grahamstown

For accused no. 2: Mr C Schuring instructed by the Justice Centre, Grahamstown