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NORTH WEST HIGH COURT, MAFIKENG

CASE NO.: CAF 01/2010

In the matter between:

DANIEL MAKHALEMELE …........................................................APPELLANT

and

THE STATE …...........................................................................RESPONDENT

DATE OF HEARING : 25 JUNE 2010

DATE OF JUDGMENT : 01 JULY 2010

FOR THE APPELLANT : ADV N L SKIBI

FOR THE RESPONDENT : ADV M M MOROKA

FULL BENCH APPEAL

HENDRICKS J; LANDMAN J AND MPSHE AJ

JUDGMENT

LANDMAN J:

Introduction

[1] The appellant was arraigned at the Ga-Rankuwa (Temba) Circuit Court before Mogoeng J on a count of murder. The appellant pleaded not guilty. However, the appellant was convicted of murder. The appellant was sentenced to thirty five (35) years imprisonment.

[2] On 28 July 2000 the appellant was granted leave to appeal against his sentence. The appellant now appeals to this Court against the sentence.

[3] The appeal has been prosecuted late. The appellant seeks condonation for his failure to do so. The application is not opposed by the State.

Grounds of appeal

[4] The appellant avers that the court a quo erred in:

1. Over-emphasizing the seriousness of the offence and the interests of society.

2. Under-emphasizing the personal circumstances of the appellant as well as:

2.1 The fact that appellant was a 40 year old first offender;

2.2 The fact that the appellant’s judgment was impaired by the intake of alcohol;

2.3 The fact that the appellant was provoked;

2.4 The fact that only one shot was fired;

2.5 The fact that the appellant took immediate steps to have the deceased taken to hospital.

3. Finding that direct imprisonment was the only suitable sentence in the circumstances of the case.

4. Imposing such a lengthy term of imprisonment that it induces a sense of shock and/or is inappropriate with regard to the facts and circumstances of the case.

The facts

[5] On 7 May 1995 the appellant shot the deceased after they had a quarrel at a shebeen. The appellant admitted that he shot the deceased.

[6] The following are the personal circumstances of the appellant:

(a) He is 40 years old.

(b) He is a first offender.

(c) He had been a law abiding citizen.

(d) He is married with two children.

(e) He passed standard five (5) and has been running his own business.

[7] As regards the crime:

(a) The appellant had imbibed alcohol and was under the influence at the time of the commission of the offence.

(b) He was provoked.

(c) He fired a single shot.

(d) He took immediate steps to have the deceased taken to hospital by contributing some money for transport.

(e) The murder was not pre-meditated nor was it pre-planned.

(f) The offence is a very serious one.

(g) He admitted firing the shot that killed the deceased.

[8] It is well settled that the task of sentencing an accused falls primarily within the discretion of the trial court. A court of appeal may only interfere with the sentence if the trial court failed to exercise its discretion or exercised its discretion unreasonably or improperly. See S v Pillay 1977 (4) SA 531 (A) and S v Kibido 1998 (2) SACR 213 (SCA) at 216g – j.

[9] Trollip JA said in S v Pillay 1977 (4) SA 531 (A) at 535E–G:

“As the essential inquiry in an appeal against sentence, however, is not whether the sentence was right or wrong, but whether the court in imposing it exercised its discretion properly and judicially, a mere misdirection is not by itself sufficient to entitle the Appeal Court to interfere with the sentence, it must be of such a motive, degree, or seriousness that it shows, directly or inferentially, that the court did not exercise its discretion at all or exercised it improperly or unreasonably. Such misdirection is usually and conveniently termed one that vitiates the court’s decision on sentence.”

[10] The test for unreasonableness is whether the sentence induces a sense of shock. See S v Hlapezula and Others 1965 (4) SA 439 (A) at 444A.

Appellant’s contentions

[11] Mr Skibi submits, on the element of provocation, that the court a quo acknowledged that the appellant was provoked but that provocation was considered against him instead of it being taken in his favour. I do not believe, in the final analysis, that the court a quo did not consider the contribution of the deceased to the appellant’s action. The court a quo said:

“I must also bear in mind that although this is not an excuse, the accused did in fact shoot the deceased once. This must distinguish the seriousness of his case from a case where a number of bullets were fired. He must have been angered by whatever discussion took place between him and the deceased, and that anger must have been a little bit more exaggerated by the intake of liquor.”

[12] Mr Skibi referred to the case of S v Ndhlovu (2) 1965 (4) SA 692 (A) where it was held that intoxication is one of humanity’s age-old frailties, which may, depending on the circumstances, reduce the moral blameworthiness of a crime, and may even evoke a touch of compassion through the perceptive understanding that man, seeking solace or pleasure in liquor, may easily over-indulge and thereby do things which sober he would not do.

[13] The court a quo was alive to the insidious effect of the abuse of alcohol. This is reflected in the following passage in the judgment:

“It is important for me to bear in mid that liquor does have the effect of impairing a person’s power of judgment, with the result that he may then act as stupidly as the accused did in this matter.”

[14] It has been said many times over the years that a sentence should be blended with mercy. See S v Rabie 1975 (4) SA 855 (A). In imposing sentence the court a quo said:

“I must also take into account the fact that murder is a very serious offence. The sentence I impose must have recognition to the sanctity of human life. It must have the effect of bringing about the realisation that human life is not something to play around with and it must have the effect of driving a clear message clear to the community that very little mercy, if any, will be shown to criminals who kill people with firearms. (My emphasis.)

Society expects protection from the Courts of law. They must have confidence in the administration of justice. This objective can only be realized if the sentences we impose are appropriate, and recognise the seriousness of the offences that people are committing.”

[15] It constitutes a misdirection to take the view that “very little mercy, if any,” should be shown when sentencing an accused. As Holmes JA pointed out in S v Rabie at 626 the mercy, with which sentence should be blended, should be measured according to the circumstances. Here it is clear that mercy, which recognizes the fallibility of human beings, was not shown to the appellant who was not a career criminal. He, at 40 years of age, was a first offender.

[16] Mr Skibi pointed out that the Judge in the court a quo said nothing about the element of rehabilitation as one of the elements considered when dealing with sentence. He submitted that it amounts to misdirection. See S v Chowe 2010 (12) SACR 141 (GNP). A judgment cannot reflect all the considerations taken into account but it does seem that the prospect of rehabilitation was not given due weight.

Conclusion re sentence of court a quo

[17] The respondent concurs that the appeal should be upheld and that the sentence should be reduced.

[18] The mitigating factors considered cumulatively justifies a lesser sentence than the one imposed by the court a quo. The sentence imposed by the trial court is shockingly inappropriate and this court should interfere by setting it aside and replacing it with a lesser sentence. See S v Matlala 2003 (1) SACR 80 (SCA) 83c–f.

Appropriate sentence

[19] Taking all the circumstances and the aim of sentencing into account, I am of the view that a sentence of 20 (twenty) years imprisonment would be appropriate. The sentence should be backdated to 1 June 1999.

[20] In the premises I would:

1. Condone the late prosecution of the appeal.

2. Uphold the appeal.

3. Set aside the sentence of the court a quo and replace it with a sentence of 20 (twenty) years imprisonment effective from 1 June 1999.

A A LANDMAN

JUDGE OF THE HIGH COURT

I concur and I make the following order:

1. Condonation for the late prosecution of the appeal is granted.

2. The appeal is upheld.

3. The sentence of the court a quo is set aside and replaced with a sentence of 20 (twenty) years imprisonment effective from 1 June 1999.

R D HENDRICKS

JUDGE OF THE HIGH COURT

I concur.

M J MPSHE

ACTING JUDGE OF THE HIGH COURT

ATTORNEYS FOR THE APPELLANT : JERRY SITHOLE ATTORNEYS

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