In die saak tussen:

THE STATE
en
1. SIYABONGIA SIKRENYA
2. DUMISANI BOQUANA

SENTENCE

The three accused were yesterday convicted of (1) murder; (2) robbery with aggravating circumstances; (3) & (4) two counts of kidnapping; and (5) & (6) two counts under the Arms and Ammunitions Act, 75 of 1969. The facts on which these charges were based are fully set out in our judgment and it is not    necessary   to    repeat    them   for    purposes    hereof.

When it comes to sentence, the court must have regard to three principal factors, namely:
(a) the   personal   circumstances   of   the   individual accused;
(b) the seriousness of the crimes in question; and
(c) the interests of society.

With regard to the counts of murder and robbery with aggravating circumstances, the court must also have regard tp the provisions of the Criminal Law Amendment Act, 105 of 1997.

	it was planned or premeditated; or
	the death of the victim was caused by the accused in committing or attempting to commit or after having committed or attempted to commit robbery with aggravating circumstances as defined in section 1 of the Criminal Procedure Act; or

•

It is clear that the murder of which the accused have been convicted, falls within all three categories.

As regards the count of robbery, sec 51(2)(a), read with Part II of Schedule 2 of the Act provides for a compulsory sentence of 15 years imprisonment to be imposed when there are aggravating circumstances or when it involves the taking of a motor vehicle.

Again it is clear the present crime complies with both these requirements. The crucial question for consideration, therefore, is whether or not there are substantial and compelling circumstances which justify the imposition of a lesser sentence than the sentence prescribed as comtemplated by the Act.

"Whatever nuances of meaning may lurk in those words, their central thrust seems obvious. The specified sentences were not to be departed from lightly and for flimsy reasons which could not withstand scrutiny. Speculative hypotheses favourable to the offender, maudlin sympathy, aversion to imprisoning first offenders, personal doubts as to the efficacy of the policy implicit in the amending legislation, and like considerations were equally obviously not intended to quality as substantial and compelling circumstances. Nor were marginal differences in the personal circumstances or degrees of participation of co-offenders which, but for the provisions, might have justified differentiating between them."

Later in the judgment, the learned judge said the following:

"If the sentencing court on consideration of the circumstances of the particular case is satisfied that they render the prescribed sentence unjust in that it would be disproportionate to the crime, the criminal and the needs of society, so that an injustice would be done by imposing that sentence, it is entitled to impose a lesser sentence."
As far as the personal circumstances of the accused are concerned, all three of them gave evidence in mitigation of sentence. All three share certain features in common: all of them are first offenders; all three come from the Transkei in the Eastern Cape from deprived and impoverished circumstances. Accused 1 and 3 have advanced at school to Grade 12 and 11 respectively. All of them came to the Western Cape to look for work, but were unemployed at the time of the commission of the offences. All of them had dependants back home, whom they were supporting.

At the same time, none of them have shown any remorse for the crimes that they have committed. Accused 1 and 3 stil! maintain that they are innocent of any wrongdoing, while accused 2 told the court that he feels "bitter" over what had happened. He claimed that it happened under "verswarende omstandighede", as it was put, by which he presumably meant "versagtende omstandighede".

This brings me to the crimes of which the accused have been convicted, which include some of the most serious crimes known to our law. Counsel for the defence, who said everything that could be said in favour of the accused, argued that the crimes could have been so much worse, for example, the accused could have killed or robbed the innocent passengers as well. I agree with counsel for the State that the accused hardly deserve credit for not having killed or robbed more people or for not executing their common purpose with greater skill and professionalism.

What aggravates the crimes in question, are the following facts: firstly, that the crimes have been premeditated and preplanned; secondly, that the accused deliberately chose a "soft target", like a taxi, which inevitably accepts strangers to enter the vehicles. Taxis provide an indispensable service in society and they are entitled to the full protection of the law in providing that service.

Next, there is the fact that the deceased in this case offered no resistance to the attempts of the accused to rob him of his father's brand new vehicle. All he wanted to do was to try and escape with his life, but he was not allowed to get away with it. Instead, he was shot in the back and killed by accused 1 while accused 2 and 3 held his hands so as to prevent his escape. It was, therefore, a cold-blooded and senseless murder of an innocent victim, who had done them no harm and who posed no threat to them.

While it is easy at this stage to look only at the situation of the accused and to consider the devastating effect that a long term of imprisonment will have on each of their lives (of which I am painfully aware), the court cannot be allowed to forget or ignore the fact that the life of another young man with a young family has been prematurely terminated by the callous deeds of the accused. No sentence that the court imposes today can ever return the deceased to his loved ones.

As far as the robbery is concerned, it is accompanied by aggravating circumstances, because a person's death has been caused in the process. Furthermore, it involved the taking of a motor vehicle. Both forms of robbery have been singled out by the legislature for particularly severe punishment. Violent car-jacking has unfortunately become a everyday feature of life in our country.   It is easy to commit and extremely difficult to combat. Were it not for the fact that the minibus in question ran out of petrol, coupled with the vigilance of the members of the police service at Storms River, it is more than likely that the present crimes would have become just another statistic in the police records.

The kidnapping of two innocent passengers, after they were made to witness these terrible and traumatic events, is also a serious crime. I take into account, however, that they were not deprived of their freedom for a lengthy period of time and that no actual physical harm came to them. Counts 3 and 4 will be taken together for purposes of sentence.

With regard to the illegal possession of the firearm and ammunition, it goes without saying that it is likewise a very serious offence. The percentage of illegal firearms in circulation is astronomically high and literally every day our courts have to listen to cases of serious crimes committed with the aid of illegal firearms. What aggravates the present crime, is the fact that the firearm in question is a sem-automatic weapon, in respect of which the legislature has prescribed a minimum sentence of 15 years imprisonment in terms of the provisions of sec 51(2)(a), read with Part II of Schedule 2 of the Act Fortunately for the accused, however, the   State   has   neither   invoked   these   provisions   in   the indictment nor have they been relied upon in argument before sentence.

In the circumstances, the court has an unfettered discretion in this regard. In exercising that discretion, I deem it just to draw a distinction between the position of accused 1, on the one hand, and accused 2 and 3 on the other hand. This is so, because, in my view, the moral blameworthiness of the accused 1 as actual possessor of the firearm and ammunition is greater than that of the other two accused. Counts 5 and 6 will likewise be taken together for purposes of sentence.

Having carefully considered all the circumstances of the present case, I am of the firm view that there are no such substantial and compelling circumstances which may justify the departure from the minimum sentences prescribed by Parliament. Taking into account all the factors mentioned on behalf of the accused, I am in any event of the view that they are far outweighed by the aggravating circumstances which I have mentioned. I conclude, therefore, that on the facts of this case the prescribed sentences are not disproportionate to the crime, the criminal and the needs of society, nor would an injustice be done by imposing those sentences.

In the circumstances, all three of the accused are sentenced as follows:

Counts 5 and 6 (Illegal possession of a firearm and ammunition in contravention of the provisions of Act 75 of 1969, both counts taken together for purposes of sentence):

The sentences on counts 2 to 6 shall run concurrently with the sentence on count 1,