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S v Mpete (CC 14/02) [2005] ZANWHC 41 (2 June 2005)

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CC 14\02


IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)



In the matter between:


SIMON OUPA MPETE APPELLANT



and



THE STATE RESPONDENT


JUDGMENT


MOKGOATLHENG AJ:


INTRODUCTION:


[1] This is an application for leave to appeal to the Supreme Court of Appeal, alternatively to the Full Bench of this Honourable Court in terms of section 315 of Criminal Procedure Act No 51 of 1977.


[2] The appeal is against the sentence of twenty five (25 years imprisonment imposed on the Appellant on 12 March 2002 at Temba Circuit court by the Honourable Mr Justice Hendler.


[3] The Appellant was convicted on a charge of murder in that on or about 29 April 2001 and at or near Temba in the district of Moretele, the Appellant did unlawfully and intentionally kill Benjamin Kupa an adult male person by shooting him with a firearm.


[4] The appeal is premised on the following grounds that;


  1. The Trial Judge erred in finding that section 51 (2) read with Part II of Schedule 2 of the Criminal Law Amendment Act No 105 of 1997 is applicable in this case;


  1. the Learned Trial Judge erred in finding that the prescribed minimum sentence was life imprisonment;


  1. the Learned Trial Judge erred in not imposing a sentence of fifteen years imprisonment or a lesser period after having found that there are substantial and compelling circumstances in this case;


  1. the Trial Judge erred in over emphasising the seriousness of the offence, the interests of society and the deterrent effect of sentence;

  2. the sentence of twenty five (25) years imprisonment is shockingly inappropriate in that in effect it disregards one or more of the following factors,


  1. the Appellant was a first offender,

  2. the Appellant supported his family and was the sole provider,

  3. the Appellant was a productive member of society and was employed,

  4. the Appellant was apparently under the influence of liquor,

  5. the deceased was the initial aggressor,

  6. the deceased also handled a firearm during the course of events,

  7. the deceased in his drunken state acted in a provocative and aggressive manner towards the Appellant,

  8. the offence was not premeditated and was committed almost on the spur of the moment,

  9. the Appellant took steps to ensure that the deceased was taken to hospital.


(f) The sentence of twenty five years imprisonment is out of proportion with the totality of the accepted facts in mitigation.


[5] It is contended that having regard to the above submissions there is a reasonable possibility that a Court of Appeal may interfere with the imposed sentence. The State is opposing the Application for leave to Appeal.


[6] The Appellant contends that the provisions of section 51 (1) read with Part I of Schedule 2 of the Criminal Law Amendment Act, No 105 of 1997 (The Act) are not applicable in this case, that none of the circumstances referred to in Part I of Schedule 2 of the Act are present, that life imprisonment was not the prescribed minimum sentence applicable.


AD Conviction


[7] Before determining whether Appellant’s contentions have merit, it is appropriate to have recourse to the stipulations of section 51(1) read with Part I of Schedule 2 of the Act.


Section 51 provides:


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.



    1. Notwithstanding any other law but subject to subsection (3) and (6), a regional court or a High Court shall-


  1. if it has convicted a person of an offence referred to in Part II of Schedule 2, sentence the person, in the case of –


    1. a first offender, to imprisonment for a period of not less than 15 years;


    1. a second offender of any such offence, to imprisonment for a period not less than 20 years; and


    1. a third or subsequent offender of any such offence, to imprisonment for a period not less than 25 years;

  1. 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 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 period not less than 5 years;


      1. a second offender of any such offence, to imprisonment for a period not less than 7 years; and


      1. 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 that it may impose in terms of this subsection.


Part I of Schedule 2


Murder, when –


  1. it was planned or premeditated,


  1. the victim was –

    1. the law enforcement officer performing his or her functions as such, whether on duty or not; or

    2. 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;


  1. 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:


    1. Rape; or

    2. Robbery with aggravating circumstances; or


  1. the offence was committed by a person, group of persons or syndicate acting in the execution or furthermore of a common purpose or conspiracy.

Rape -


  1. when committed-


    1. in circumstances where the victim was raped more than once whether by the accused or by any co-perpetrator or accomplice;


    1. by more than one person, where such persons acted in the execution or furtherance of a common purpose or conspiracy;


    1. 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


    1. by a person, knowing that he has the acquired immune deficiency syndrome or the human immunodeficiency virus;


  1. where the victim –


    1. is a girl under the age of 16 years;


    1. is a physically disabled woman who, due to her physical disability, is rendered particularly vulnerable; or


    1. is a mentally ill woman as contemplated in section 1 of the Mental health Act, 1973 (Act No 18 of 1973); or

  1. involving the infliction of grievous bodily harm.

[8] The contention is that the murder committed by the Appellant does not fall within the purview of section 51 (1) read with Part 1 of the Schedule 2 of the Act, but that the circumstances pertaining to the murder the Appellant was convicted of, falls within the ambit of section 51 (2) (a) (i) read with Part II of Schedule 2 of The Act, that the prescribed minimum sentence applicable is fifteen years imprisonment.


[9] The Appellant’s submission is premised on the following remarks the Honourable trial judge uttered when delivering sentence;


You can be very fortunate that because of the circumstances in this case, I find compelling and substantial reasons not to impose the maximum sentence because I could have easily have done so”

The argument was the advanced that the Honourable Trial Judge misdirected himself, because he did not pertinently make a find that the murder committed by the Appellant was planned or premeditated that therefore when the Honourable Trial Judge uttered the said remarks he could possibly not have been referring to section 51 (2) of The Act, as the Appellant was not convicted in the Regional Court.


[10] The submission is therefore that it appears from the above quoted remarks that the Honourable Trial Judge inadvertently thought and accepted that the prescribed applicable minimum sentence in this case was life imprisonment, unless there were substantial and compelling circumstances which existed which justified the imposition of a lesser sentence than that prescribed.


[11] The Appellant’s counsel to buttress the above submissions, contented that the Appellant committed the murder almost on the spur of the moment, that the murder was not planned or premeditated. It is contended further that but for the trial court ‘s misdirection and irregularity, the Appellant should correctly have been found guilty of murder which was not planned or premeditated. The Appellant being a first offender, the court a quo would have been obliged to impose a sentence of not less than fifteen (15) years imprisonment in terms of section 51 (2) (a) (i) of The Act read with Part II of Schedule 2 thereto. It was not so obliged if the court was satisfied in terms of section 51 (3) (a) of The Act that substantial and compelling circumstances existed which justified the imposition of a lesser sentence than the minimum prescribed sentence of fifteen (15) years imprisonment.


[12] In terms of section 51 (3) (a) a court is enjoined if it is satisfied that substantial and compelling circumstances exists which justify the imposition of a lesser sentence than that prescribed, that “it shall enter those circumstances on the record of the proceedings and may thereupon impose such lesser sentence”.


[13] The contention that the murder was at the spur of the moment is not supported by the evidence. The Honourable Trial Judge in his judgment made the following remarks:


Now why on earth after this argument ……would the Accused have gone home or gone away for five minutes ……….and come back with a firearm. For what reason could he have come back with that firearm?” Well the only reason I can think of is to show who is the boss.


The situation at the time the Accused fired the shot was that the deceased was in a pleading position and that is from both witnesses and I accept that now if you shoot somebody in the chest when he is pleading when you shoot him, you clearly wanted to kill him.” (My emphasis)


From these remarks it is patent that the Honourable Trial Judge made a finding that the Appellant planned or at least premeditated the murder.


[14] A fair reading of the judgment reflects that the Honourable Trial Judge in express terms, directed his mind and properly found that there were substantial and compelling circumstances. This is clear if regard is had to the following passage;


In your favour is the fact that the deceased also had a firearm and that he did brandish it ……. You can be very fortunate that because of the circumstances in this case, I find compelling and substantial reasons not to impose the maximum sentence.”


[15] It is trite that “an appellate court should not seek anxiously to discover reasons adverse to the conclusions of the trial judge. No judgment can ever be perfect and all-embracing, and it does not necessarily follow that, because something has not been mentioned, therefore it has not been considered.”


(per Davis AJA in R v Dhlumayo & Another 1948 (2) SA 677 (A) at 706)


[16] The Trial Judge does not in his judgment pertinently and specifically enter the substantial and compelling circumstances on the record of the proceedings. This does not mean that the court did not consider and find that substantial and compelling circumstances exist. The Honourable Trial Judge did find that substantial and compelling circumstances are present in this matter. This is borne out by the following passage;


“….because the deceased was the aggressor to a certain extent and that you were under the influence of liquor, both of you, and because there was an argument ………. I have decided to exercise my discretion.”


[17] The submission that the Honourable Trial Judge misdirected himself and had committed an irregularity by finding that the murder fell within the purview of section 51 (1) read with Part 1 of Schedule 2 of Act 107 of 1997 is without merit.


AD Sentence


[18] The contention that the Honourable Trial Judge overemphasised the seriousness of the offence, the interests of society and the deterrent effect of sentence is not sustainable if regard is had to the following;


  1. Appellant gave evidence in mitigation of sentence that he was 39 years old, he is employed at Oupa Jerry’s Supermarket as a driver earning R1200.00 per month, he is married with three children aged 16, 11 and 9 years respectively, that his wife is not employed, that he did not shoot the deceased but is sorry that a person has lost his life but that he did not cause it.


[19] The Honourable Trial Judge in imposing sentence stated the following:


I take into account all your personal circumstances, your family, your job situation and everything involved but, I have to weigh that up on the scales of justice and I have to take into account the nature of the crime you committed and the wishes of the community, and I have done so and I may tell you I have tempered your sentence with a great deal of mercy ……..After due consideration the sentence of the court is of twenty five (25) years imprisonment.

[20] In S v Malgas 2001 (2) SA 1222 (SCA) (approved by the Constitutional Court S v Dodo [2001] ZACC 16; 2001 (1) SACR 594 (CC) paragraph [11] at 602 – 603 and paragraph [40] at 615 – 6 this requirements of section 51 of Act 105 of 1997 relating to sentence were fully considered. In that case at 1230 A–E Marais JA delivering the judgment of the court put the matter in paragraph 8 as follows:


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 had ordained life imprisonment or the particular prescribed period of imprisonment as the sentence which should ordinarily be imposed for commission of the listed crimes in the specified circumstances. In short, the Legislature aimed at ensuring 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.”


In summary the Learned Judge concluded by stating that;


All factors (other than those set out in D above) [i.e. ‘speculative hypotheses favourable to the offender, undue sympathy, aversion to imprisoning first offenders, personal doubts as to the efficiency of the policy underlying the legislation and marginal differences in personal circumstances or degrees of participation….’] 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.”

[21] The imposition of sentence is pre-eminently a matter which falls within the discretion of the trial court, a court of appeal, will not interfere with the exercise of such discretion unless it can be said that the court a quo did not exercise it’s discretion judicially; by reason of irregularity or material misdirection or that the sentence imposed is so shockingly inappropriate that it is clear that the trial court acted unreasonably.


[22] The unfettered discretion a court exercises in relation to sentencing is a vital element of our law which calls for constant recognition.


See S v Toms; S v Bruce [1990] ZASCA 38; 1990 (2) SA 802 (A) 806 H – I.

S v Kwatsha 2004 (2) SACR 564 at 569 A – B


[23] The argument is that the sentence of twenty five (25) years imprisonment is shockingly inappropriate and out of proportion with the totality of the accepted facts in mitigation.


[24] The Trial Court would not have exercised its discretion properly if it is likely that a court of appeal is of the view that no reasonable court would have imposed the sentence of twenty five (25) years imprisonment that such sentence is out of all proportion to the gravity or magnitude of the offence, that the sentence induces a sense of shock or outrage, is grossly excessive or that the disparity of the sentence of the Trial Court and the sentence which the court of appeal would impose is so marked that it can properly be described as “shockingly”, “startlingly” or “disturbingly inappropriate”.


See S v Anderson 1964 (3) SA 494 (A) at 495 (E); S v Malgas 2001 (2) SA 1222 (A) at paragraph 12.


[25] In my view the court a quo correctly applied the principles pertaining to sentence and found that substantial and compelling circumstances exist which render the prescribed sentence unjust in that it would be disproportionate to the offence, the personal circumstances of the Appellant and the interests of the society.


[26] The deceased was killed in a callous, cold calculated manner when he posed no danger or threat to the Appellant. Infact it is no exaggeration to state that the deceased was executed. The sentence imposed for such a crime was balanced and fair and is not inconsistent with sentences imposed for such an offence by this Court.


[27] I am of the view that the sentence of twenty five (25) years is not disproportionate to the crime, that it is not disturbingly inappropriate having regard to the manner the Appellant killed the deceased.


[28] In the premises it is my opinion that there is no reasonable possibility that a court of appeal would interfere with the imposed sentence.


The application for leave to appeal is dismissed.




___________________

R D MOKGOATLHENG

ACTING JUDGE OF THE HIGH COURT




APPEARANCES:



FOR THE APPELLANT : ADV C J ZWIEGELAAR

FOR THE RESPONDENT : ADV G S MAEMA



APPELLANT’S ATTORNEYS: NKOMO & PARTNERS

RESPONDENT’S ATTORNEYS: STATE ATTORNEYS



DATE OF HEARING : 29 APRIL 2005

DATE OF JUDGMENT : 02 JUNE 2005

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