---

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

JOHANNESBURG

CASE NO: SS49/2000

DATE:2000-08-14

In the matter between

THE STATE

and

VINCENT NCEBA BHACELA.........................................................................................Accused

SENTENCE

WILLIS. J: It is well established in these courts and reflects the accumulated wisdom of the generations that sentence should fit the criminal as well as the crime, be fair to the state and to the accused and be blended with a measure of mercy. It must also reflect the interests of society.

The accused is currently 21 years of age. At the time of the commission of these offences he was either 19 or 20 years of age. He is a first offender. He lives with his grandmother and his sisters.

The accused did not testify with regard to sentence. He did however indicate that he was very sorry that the death of the deceased, who had been his good friend for a number of years, should have occurred.

The accused used an unlicensed firearm and ammunition. The deceased, an innocent person who had been the friend of the accused for a number of years, was gunned down in cold blood. The death of the deceased has caused his family immense bereavement,

As was submitted by Ms Ranchod, counsel for the state, offences of this kind occur with disturbing prevalence in our society. Daily all in authority over the populace are called upon to take steps to rid our society of this scourge and to take firm measures, if not to eliminate it in its entirety, then at least strongly to discourage it.

Sentence also has five important functions:

1. It must act as a general deterrent. In other words it must deter other members of the community from committing such acts, or even thinking that the price for wrongdoing is worthwhile;

2. It must act as a specific deterrent. In other words it must deter this particular individual from being tempted to act in such a manner ever again;

3. It must enable the possibility of correction, unless this is very clearly either not necessary or not possible;

4. It must be protective of society. In other words society must be protected from those who can do it harm;

5. It must serve society's desire for retribution. In other words society's outrage at serious wrongdoing must be placated. Clearly in this case a lengthy period of imprisonment is

We live in a society where it has become a cliche to say that violent crime has reached alarming proportions. Cliches of course become cliches because they express a truism very well. Violent crime instills fear in all law abiding citizens. It affects the culture in which our children grow up. It adversely affects confidence in our economy and in turn the capacity of our economy to create new jobs. A vicious cycle is set in motion from which there is no easy escape and for which there are no easy solutions.

Part, but certainly not all, of the solution lies in the courts having regard to the function of general deterrence. In other words lengthy prison sentences are part of the solution but we delude ourselves if we believe that this alone will solve our problems with crime. We need jobs. We need more efficient, dedicated and competent policemen and women, prosecutors, magistrates and judges. Above all we need a culture of non-violence. It is beyond my wisdom to know how we can create a culture of non-violence. Perhaps the great institutions of our society, such as our courts, can make a contribution by reflecting in their judgments compassion and a love for our fellow men and women.

It has to be accepted that not only do we live in a violent society but also that our society has for the past few decades undergone great turmoil, suffering and distress. These were the decades of the accused's life. While each of us is responsible for his or her acts it has to be accepted that each of us is the product of his or her times and circumstances.

I spoke earlier of a vicious cycle. There are others that move in parallel with the one I have mentioned earlier. A harsh and often vicious society which experienced great social upheaval inevitably fashioned the accused and all of us share some blame for the hardness of the accused's heart which resulted in this dreadful crime of murder.

The state has asked for a lengthy period of imprisonment. Were it not for the fact that the accused is very youthful, that he is a first offender, that he has shown some remorse and that the form of intention was dolus eventualis, I would have seriously considered sentencing the accused to imprisonment for life.

Mr Jacobs, counsel for the accused, asked that I have regard to the cumulative effect of the sentences that I impose and that I should in the exercise of mercy order that they run concurrently.

For the crime of unlawful possession of a firearm a minimum sentence of five years is prescribed in terms of the Criminal Law Amendment Act number 1 05 of 1 997. I refer to section 51 (1) of the Act read together with part 2 thereof.

I have given anxious consideration to the question of allowing the sentences for unlawful possession of arms and ammunition to run concurrently with the sentence for murder. I have decided to do so for reasons of mercy.

Will the accused please stand for sentence?

1. For count 1, the murder charge, you are sentenced to 20 years imprisonment;

2. For count 2, the charge of unlawful possession of a firearm, you are sentenced to five years imprisonment; 3. For count 3, unlawful possession of ammunition, you are sentenced to six months imprisonment.

It is ordered that the sentences on counts 2 and 3 are to run concurrently with the sentence on count 1. In other words the effective sentence is 20 years.

---