/LVS
                      IN THE HIGH COURT OF SOUTH AFRICA
                        (TRANSVAAL PROVINCIAL DIVISION)

				                       DATE: 11 December 2008
			                                CASE NO: A692/07

In the matter between:

PETROS BONGANI MCHUNU                                APPELLANT
vs.
THE STATE                 				                RESPONDENT
						                 _____________________________________________________
                                           JUDGMENT
_____________________________________________________

BOTHA J:

	The appellant appeals against his conviction and sentence.

	He was convicted of murder and sentenced to 20 years imprisonment of which 10 years were suspended on certain conditions for five years.

	The appellant was convicted in the Regional Court.  After conviction the matter was referred to the High Court for sentence in terms of section 52 of Act 105 of 1977.

	The appellant was charged with murder on the basis that on 21 May 2003, he killed Johan Daniël Boshoff by knocking him with a motor vehicle.  There were alternative charges of culpable homicide and reckless or negligent driving.

	The appellant, who was represented, pleaded guilty of murder.  The appellant’s attorney offered the following plea explanation:
	“Accused admits that on the 21 May 2003 at or near 	Benoni which is in the regional division of Southern-	Transvaal.  He did unlawfully and intentionally kill Johan 	Daniël Boshof, a male person by knocking him with a 	motor vehicle to wit a Toyota mini-bus bearing 	registration numbers HLF 206 GP.  Accused admits that 	at the time of the offence he was aware that this conduct 	was unlawful and punishable by law.  Accused admits 	that while so driving his conduct would result in 	knocking down of a person who could die as a result 	thereof. 
	Accused admits that the body of the deceased was 	properly identified and was transported after it was 	properly sealed by the relevant authorities.  Further 	accused admits that during the transportation of the 	said body it did not suffer any additional injuries other 	than those that were caused as a result of the driving of 	his motor vehicle.  Accused admits that the post mortem 	report was properly conducted.  Accused states that he 	made the statement freely and voluntarily.  Accordingly 	accused pleads guilty and the statement is dated on this 	the 5 November 2003.  It has not been signed your 	worship subject to confirmation of the contents by the 	accused.”

	The appellant confirmed the correctness of the plea explanation.

	When the regional magistrate asked a further clarification of the explanation, the following was supplied by way of addendum:
	“Accused states that whilst he was driving the motor 	vehicle to wit the Toyota mini-bus bearing registration 	numbers HLF 206 GP, the deceased, a traffic officer 	entered the middle of the road along which he was 	driving well in advance, which could have given him 	that is the accused, enough time to stop the motor 	vehicle without knocking down the said traffic officer 	that is the deceased.  That is the addendum your 	worship.” 

	The court then found the appellant guilty of murder.

	The previous convictions were proved against the appellant.  The following facts were placed before the court in mitigation:
(a)	that the appellant was 23 years old;
(b)	that he was married and had two children;
(c)	that he was a taxi driver earning R250.00 per week;
(d)	that he had not planned to kill someone;
(e)	that he was remorseful and
(f)	that he left school in grade 1.
     The state called a traffic officer, Mr Hunt.  He testified that he was in the company of the deceased when he died.

	He pointed out that the deceased was wearing his full uniform with protective clothing which included reflectors.  It was a straight road.  As he put it, it looked like Christmas, the way cars were flashing their lights at oncoming vehicles.

	After argument the regional magistrate decided to refer the matter to the High Court for sentence.

	On 22 April 2004 the appellant appeared before Kruger AJ.

	Counsel on behalf of the appellant had no objection against the confirmation of the conviction.  It was then duly confirmed.

	The court referred to what it was told by the appellant’s counsel, namely that there was ample time to react when the deceased stepped into the road, that the appellant was driving fast, that his brakes were not working properly, that he tried to swerve, that he realized that his vehicle might capsize, that he was afraid to react to the deceased’s signal and stop because he was afraid that he would be given a fine for not having a taxi permit.

	The court found that substantial and compelling circumstances justifying a lesser sentence than life imprisonment were present.  He referred to the fact that the appellant made a split second decision on the spur of the moment, the fact that intent took the form of dolus eventualis and the remorse shown by the appellant.

	The court then imposed the sentence of 20 years imprisonment of which one half was suspended.

	On all the facts tendered in explanation of the plea the conviction was entirely appropriate.  The correctness of the conviction was not questioned when the court had to decide whether the conviction should be confirmed.

	It was argued on behalf of the appellant that a defence was disclosed to the judge a quo when he was addressed on sentence, the defence being that the appellant’s brakes were not working properly.  It was argued that the court should have entered a plea of not guilty in terms of section 113(1) of Act 51 of 1977.  It was also argued that because the court accepted that version as the basis of finding that substantial and compelling circumstances justifying a lesser sentence were present, it should have found the appellant guilty of culpable homicide.

	In my view the allegation that the brakes were not working properly was not submitted as a defence.  It was submitted as one of several circumstances that led to the appellant deciding on the spur of the moment not the react to the signal of the deceased.  It must be read in context.  I quote from page 44:
	“According to what Mr Ramasodi, appearing on behalf of 	the accused, told me this morning the deceased stepped 	from the left hand side of the accused as the accused 	was driving his vehicle.  There was according to the 	accused’s admission ample time to react as he saw the 	deceased stepping onto the road surface.  From what I 	was told this morning the accused says that he was 	driving fast, but that the brakes of his vehicle were not 	working properly, that he tried to swerve but realised 	that his vehicle might capsize.  He then hit the deceased 	on the left hand side of the vehicle he was driving.  The 	reason he was afraid to stop and to react to the signal 	given by the deceased was that he was afraid he will be 	given a fine for not having a permit, that is a taxi driver’s 	permit.”     

	In my view it is clear that the basis of the plea explanation, namely that there was enough time to react, remained unaffected.  The court a quo took into account his explanation to find that the crime was not premeditated.

	Accordingly there is no reason to interfere with the conviction.    

	All that remains is the question of the sentence.  Life imprisonment was mandatory because the deceased was a law enforcement officer performing his functions.

	The court a quo’s finding that substantial and compelling circumstances justifying a lesser sentence were present, must be accepted.

	I have a problem with the fact that a suspended sentence was effectively added onto a long period of imprisonment.

	One cannot help to wonder whether the court did not try to make the sentence look more severe than it was.

	In general it is inappropriate to add a long term of suspended imprisonment to a long term of effective imprisonment.  See S v Abrahams 1996(1) SACR 571 A at 571 f-g and S v Mhlakaza 1997(1) SACR 515 SCA at 524 a-b.  In S v Wakiri 1981(2) SA 527 AD at 530 G-H it was said that what was needed after a long period of imprisonment  was a comparatively short period of suspension to induce the released offender to settle down to a useful life.

	On the assumption that the suspended portion of the sentence has to be undergone (see S v Setnoboko 1981(3) SA 5530 at 556 E-F), I am of the view that a sentence of 20 years imprisonment would be excessive in the circumstances.

	The appellant had spent a year in custody awaiting trial.  He was a first offender.  His conduct was not premeditated.  He made a disastrous decision in a fraction of a second under the circumstance where he did not have the direct intent to kill, but where the death of the deceased clearly was a possible outcome.

	In all the circumstances I am of the view that a sentence of 12 years imprisonment of which two years are suspended would be an adequate sentence.

	Any lesser sentence would not be adequately reflect the seriousness of the offence.

	In the circumstances the following order is made:
1.	The appeal against the conviction is dismissed.
2.	The appeal against the sentence succeeds.  The sentence imposed by the court a quo is set aside and the following sentence is substituted for it:
	“Twelve years imprisonment of which two years 	are suspended for three years on condition that the 	accused is not convicted of murder or attempted 	murder committed during the period of 	suspension.”
3.	This sentence is antedated to 22 April 2004.  

_________________________
C. BOTHA
JUDGE OF THE HIGH COURT

I agree

_________________________
K MAKHAFOLA
ACTING JUDGE OF THE HIGH COURT

I agree

_________________________
S.P MOTHLE
ACTING JUDGE OF THE HIGH COURT