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IN THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG REPUBLIC OF SOUTH AFRICA

Case No: AR337/09

In the matter between

Thokozani Mchunu …..............................................................Appellant

and

The State …..........................................................................Respondent

JUDGMENT

Delivered on: 4 February 2010

STEYN J

[1] The Appellant, Thokozani Mchunu, was convicted on a count of Robbery with aggravating circumstances and Murder. Upon conviction he was sentenced to life imprisonment on the count of Murder and eighteen (18) years imprisonment on the count of Robbery with aggravating circumstances. An order was made by the Court a quo that the sentences should run concurrently.

[2] The Appellant applied for leave to appeal against conviction and sentence, leave was, however, granted by the learned trial judge Hurt J, on the 25^th August 2008 to appeal against the sentences, imposed.

[3] Ms Anastasiou, acting on behalf of the Appellant, submitted that this Court is at liberty to interfere with the sentences because it is severe and harsh, even though the Criminal Law Amendment Act, No. 105 of 1997 found application. She strongly contended that in light of the Constitutional Court’s decision in Centre for Child Law v Minister for Justice and Constitutional Development and Others 2009 (11) BCLR 1075 (CC).

Mr Ngcobo, acting on behalf of the Respondent, supports the view, that this Court should interfere with the sentences imposed at the time especially in the light that the appellant was a juvenile at the time when he was sentenced.

[4] It is clear from the record that counsel acting for the appellant at the time of sentencing, informed the trial Court that the appellant was between 16 and 17 years when he committed the offences and that he is a first offender, gainfully employed before he was arrested by the police. It was also submitted to the Court that the Appellant had been incarcerated for a period of two (2) years as an awaiting trial prisoner. The aforementioned circumstances are now also listed by Ms Anastasiou in her written heads of argument.

Ad Sentence

[5] I shall now turn to the sentences imposed. The learned trial judge correctly considered the crimes as gruesome and callous. The deceased who was murdered was an elderly woman 70 years of age, who could not defend herself in the face of an attack by the appellant and his co-accused. The Court cannot be faulted in its observation that the Appellant caused the deceased to suffer when she was suffocated.

What lies however at the heart of this appeal is whether the trial Court was justified in its assessment, that the Appellant’s tender age did not qualify for a departure from the prescribed sentence by the legislature, namely life imprisonment.

[6] Given the gravity of life imprisonment it is important that this Court should analyse all the factors, presented to the Court a quo in order to determine whether collectively the factors listed in mitigation, constitute substantial and compelling circumstances. I align myself with the view of our Supreme Court of Appeal in Brandt v S [2005] 2 All SA 1 (SCA) when it stated:

“[15] The traditional aims of punishment, particularly in respect of child offenders, therefore have to be reappraised and developed to accord with the spirit and purport of the Constitution. International documents on child justice emphasise the re-integration of the child into society. Indeed the aims of re-socialisation and re-education must now be regarded as complementary to the judicial aims of punishment applicable to adult offenders. A child charged with an offence must be dealt with in a manner which takes into account his/her age, circumstances, maturity as well as intellectual and emotional capacity.

[18] The principle that detention is a matter of last resort (and for the shortest appropriate period of time) is the leitmotif of juvenile justice reform. Those principles are articulated in international law and are enshrined in section 28(1)(g) of the Constitution [Act 108 of 1996] which reads: “Every child has the right not to be detained only for the shortest appropriate time…

[24] To summarise:

(a) The legislative scheme entails that the fact that an offender is under 18 although over 16 at the time of the offence automatically confers a discretion on the sentencing court which is without more free to depart from the prescribed minimum sentence.

(b) In consequence the sentencing court is generally free to apply the usual sentencing criteria in deciding on an appropriate sentence.

(c) The offender under 18 though over 16 does not have to establish the existence of substantial and compelling circumstances because section 51(3)(a) [Act 105 of 1997] finds no application to him or her.

(d) By contrast with the class of offender under 16, however, the statutory scheme requires that the sentencing court should take into account the fact that the Legislature has ordinarily ordained the prescribed sentences for the offences in question. This operates as a weighting factor in the sentencing process.

(e) It follows on this approach that where the provisions of section 51(2) apply the regional court retains its competence to finalise the matter contrary to the conclusion in Makwetsja [(2004 (2) SACR 1 (T)]. ”

[7] It is evident that the traditional aims of punishment in respect of juvenile offenders had been re-considered post 1994. In S v B 2006 (1) SACR 311 (SCA) at 318a-d the Supreme Court of Appeal re-affirmed that juvenile offenders should be dealt with in a manner that takes into account their age, circumstances and maturity as well as their emotional and intellectual capacity.

In my view, the learned trial judge certainly shared the same sentiment as pronounced by our Supreme Court of Appeal, when he entertained the application for leave to appeal.

[8] In my view, the State failed to disprove the fact that the Appellant was merely between the ages of 16 to 17 years, when he committed these horrific offences and henceforth the trial court should have departed from the minimum sentence prescribed. Such departure did not take place and accordingly this Court is at liberty to consider an appropriate sentence afresh.

[9] In applying the ‘determinative test’ as prescribed by Malgas 2001 (1) SACR 469 (SCA) I am of the view that the life imprisonment imposed is disproportionate to the specific circumstances of this case. The seriousness of the offence and the fact that the appellant killed a defenceless elderly woman of sub-standard intelligence for personal gain sufficiently qualify for long term custodial sentence. In my view such a sentence would take care of the concern expressed by the learned trial judge when he stated:

“[I] consider that this was a most serious offence and an unforgivable offence and if you are disposed to commit it at the tender age which you say you are then it seems to me that society needs to be protected by removing you until you are older.”

A lengthy custodial sentence will not only serve the societal interest but it would take account of the Appellants’ need to re-integrate into society.

[10] In the result the appeal against the imposed sentence of life imprisonment should be upheld and substituted with:

1. 18 (Eighteen) years imprisonment on count one, Robbery with aggravating circumstances;

2. 20 (Twenty) years imprisonment on count three, murder.

3. Both sentences to run concurrently.

4. The sentences imposed are hereby antedated to 13 September 2004.

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Steyn, J

____________________________

Tshabalala, JP: I agree and it is so ordered.

____________________________

Chili, AJ: I agree.

Date of Hearing: 28 January 2010

Date of Judgment: 4 February 2010

Counsel for the appellant: Adv Z Anastasiou

Instructed by: Pietermaritzburg Justice Centre

Counsel for the respondent: Adv M E Mthembu

Instructed by: The Director of Public Prosecutions, Pietermaritzburg

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