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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

Case number: A377/2018

 

In the matter between:

TSHEPO MAILE                                                                                                  APPELLANT

 

And

 

THE STATE                                                                                                        RESPONDENT

JUDGEMENT

MOSOPA, J

 

INTRODUCTION

1.        Appellant, who at the time of sentence was 33 years old, was on the 12 April 2018 convicted on his pleas of unlawful possession of firearm, in contravention of Sec 3 read with relevant provisions of Act 60 of 2000, and unlawful possession of ammunition, in contravention of Sec 90 read with relevant provisions of Act 60 of 2000.

2.        As a sequel to his pleas and conviction appellant was sentenced as follows;

          2.1       possession of unlicensed firearm; 15 years imprisonment, and

          2.2       possession of unlicensed ammunition; 9 months imprisonment (sentence not meted on the original date of sentence but later on the 11 September 2019, after leave to appeal against sentence was granted by this court) and both sentences ordered to run concurrently, effective sentence being 15 years imprisonment.

 

3.      Due to the pandemic engulfing our country, this appeal is determined in line with the directives issued by the Judge President of this division and more in particular Sec 19(a) of the Superior Court Act 10 of 2013 which authorizes appeal court to dispose with oral hearing and determine appeal on paper. Both counsel were invited to file supplementary heads of argument, and both waived their rights to do same.

 

EVIDENCE

4.      Appellant attended a “party”, wherein alcohol was consumed and the complainant was one of the people who attended such social gathering. Even though he consumed liquor, appellant in his own words was “moderately” under the influence of alcohol but still able to distinguish between right and wrong. He then noticed that complainant left his firearm under the seat of his motor vehicle and then decided to take the firearm and keep it for himself.

5.      At that particular moment he has not yet decided what he was going to do with the firearm he stole and said he would later “decide” what he wanted to do with that firearm. The owner realized that his firearm is missing shortly after it was stolen and then alerted the police. In a period of less than 2 hours the police stopped appellant who was at that time in the street, but not at the place where the social gathering was held, conducted a search and found the stolen firearm in his possession. Appellant was then arrested for being in possession of a firearm and ammunition without a license and/or permit to possess such.

 

LEGAL PRINCIPLE

6.      Approach of court on appeal against sentence was in my view correctly explained in the constitutional court matter of S v Bogaards 2013 (1) SACR 1 (CC), at para 41 were Khamphepe J observed;

          “Ordinarily, sentencing is within the discretion of the trial court. An appellate court’s power to interfere with sentence imposed by the court below is circumscribed.  It can only do so where there has been an irregularity that results in a failure of justice, the court below misdirected itself to such an extent that its decision on sentence is vitiated, or the sentence is so disproportionate or shocking that no reasonable court could have imposed it. A court of appeal can also impose a different sentence when it sets aside a conviction in relation to the charge and convicts accused of another”.

 

7.      Schedule 4 of Act 60 of 2000 (“Act”) read with the provisions of Section  121 of the Act, prescribes a sentence of 15 years imprisonment in the event of contravention of Sec 3 of the Act. The firearm the appellant was found to be in possession of, i.e semi-automatic firearm, falls under the category of firearms described under this schedule. In S v Malgas [2001] 3 ALL SA 220 (A) Marais JA writing for the majority observed;

 

          “ [8] In what respects was it no longer to be business as usual? 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 has ordained life imprisonment or the particular prescribed sentence as the sentence which should ordinarily be imposed for the commission of the listed crimes in the specified circumstances. In short, the legislature aimed at ensuring a severe, standardized 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 be objective gravity of the type of crime and the public’s needs for effective sanctions against it. But that did not mean that all other considerations were to be ignored. The residual discretion to decline to pass the sentence which the commission of such an offence would ordinarily was given to the courts in recognition of the easily foreseeable injuries which could remit from obliging them to pass the specified sentences come what may.

[9]     Secondly a court was required to spell out and enter on the record the circumstances which it considered justified a refusal to impose specified sentence….. The specified sentence were not to be departed from lightly and for flimsy reasons which could not withstand scrutiny. Speculative hypothesis favorable to the offender, maudlin sympathy, aversion to imprisoning first offender, personal doubt as the efficacy of the policy implicit in the amending legislation, and like considerations were equally obviously not intended to qualify as substantial and compelling circumstances”.  

8.      Further

“[12]  ….A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as it were a trial court and then substitute the sentence arrived at by it simply because it prefers it.   Where material misdirection by the trial court vitiates its exercise of that discretion, an appellate court is of course entitled to consider the question of sentence afresh…….”

 

9.      Siwendu J in the matter of Ramaqele v S (A98/2018) [2019] ZAGPJHC 35 (21 February 2019 after considering a line of authorities found that there were changing patterns in respect of sentence in matters involving possession of unlicensed firearms and ammunition despite the ordained sentencing regime and remarked;

 

          ‘[22]  Having regard to the sentencing pattern, which emerges from the cases quoted herein before, I am driven to conclude that the sentence imposed by the court a quo, was unjust. In my view, peculiarities of this case do not warrant a deviation from the general imposition of between 6 to 8 years imprisonment for the possession of the semi-automatic firearm ….”

 

MERITS

10.    Appellant in his Sec 112 statement did not in detail say what motivated him to steal the complainants’ firearm, save to say that “he was going to decide later what to do with that firearm”. Whatever his intentions are, what was to follow was going to be a criminal act.

11.    Appellant was lucky to escape without being charged with theft of the firearm, as was correctly contended by the respondent. The discretion to change or not to charge a person of a particular offence rests with the state. Despite evidence indicating that appellant stole the complainants’ firearm, no mention was made by the state as to why appellant was not charged with theft of a firearm.

12.    Appellant was arrested shortly after the theft of the firearm, after the complainant alerted the police about his missing firearm. The firearm was consequently recovered before appellant committed an offence with it. The motive behind the theft of the firearm remains unknown despite appellant given opportunity in his sentencing process to express such. However, it is not a point in the moment that I can hold against the appellant as no crime was committed by appellant while still in possession of such firearm.

13.    In my view, the below court did not adequately consider the personal circumstances of the appellant but highlighted such in passing in its judgement on sentence and in my considered view it amounted to paying lip service to such circumstances.

          The appellant was 33 years old the time of commission of the offence. He was gainfully employed as a motor mechanic earning a salary of R 6,700,00 per month and had a N2 qualification. He did not have children and nothing was said about his parents. He is a first offender and pleaded guilty to the offences he was charged within a matter of 7 months after his arrest. Appellant does not strike me as a day to day criminal who goes around stealing from other people. Most importantly he apologized to his friend for stealing his firearm and that was long before he pleaded guilty.

 

14.    S v Matyityi 2011 (1) SACR 40 (SCA) at para 13 Ponnan JA cautioned us as to what amounts to genuine remorse and remarked;

          “….there is, moreover, a chasm between regret and remorse….. Remorse is a gnawing pain of conscious for the plight of another. Thus genuine contrition can only come from an appreciation and acknowledgement of the extent of one’s error. Whether the offender is sincerely remorseful and not simply feeling sorry for himself or herself at having been caught is a factual question. It is to the surrounding actions of the accused rather that what he says in court that one should rather look…..”

15.    In my view, appellant was truly remorseful by apologizing to the complainant and pleading guilty to the charges. I am alive to the strength of the states’ case against appellant and the fact that he was arrested shortly after firearm was stolen. That should have also motivated appellant into pleading guilty to the charges. However in my considered view complainant is partly to be blamed for appellants’ misery. I did not see any reason why he was carrying a firearm knowing that he was attending a social gathering where liquor was consumed. Most importantly leaving the firearm negligently and unattended under his motor vehicle seat. He placed such firearm under his vehicle seat knowingly that appellant was observing him.

16.    The mere fact that a prescribed sentence is ordained for contravention of a specific offence does not mean that all other considerations are to be ignored. The court trial court is given discretion to consider other sentence than the prescribed one. When exercising such discretion, court should consider the type of the offence and the public’s needs for effective sanction against it.

17.    It is my view that a material misdirection was committed by the court below which vitiated exercise of its discretion, which warrants this court to interfere with its decision. The sentence is so disproportionate and shocking and needs to be set aside.

 

APPROPRIATE SENTENCE

18.    In a line of authorities referred to in Ramaqele v S (supra) and other authorities given to by appellants’ counsel, it is clear that appeal courts after interfering with sentences imposed by trial courts imposes sentences between 6 and 8 years imprisonment. In most of the matters appellants are not only charged with possession of unlicensed firearms and ammunition, but with other offences such as robbery, murder etc. In some of the instances, where sentence is interfered with, appellant were not only found in possession of semi-automatic firearms, but rifles which attracts a sentence more than the one prescribed in Schedule 4 of the Act.

19.    In casu, appellant is only convicted of possession of unlicensed firearm and ammunition and as such Ramaqele matter becomes relevant in casu. The court below misdirected itself in not considering gradations of seriousness attached to the unlawful possession of a firearm.

 

ORDER

20.    In the consequence the following order is made:

 

1.   Appeal against sentence in both counts is upheld.

2.   The sentence on both counts is set aside and substituted with the following,

2.1       Count 1;  Appellant is sentenced to 6 (six) years imprisonment ;

2.2       Count 2;  Appellant is sentenced to 9 (nine) months imprisonment, sentences are ordered to run concurrently, effective sentence is 6 (six)years imprisonment.

3.   Sentence is antedated to the 12 April 2018

4.   Appellant remains unfit to possess a firearm in terms of Sec 103(1) of Act 60 of 2000.

 

 

 

 

 

M.J MOSOPA

JUDGE OF THE HIGH

COURT, PRETORIA

 

I, agree

 

 

 

 

                                                                                                                                                                                                        

                                                                                      J MOGOTSI

                                                                                      ACTING JUDGE

                                                                                      OF THE HIGH

                                                                                      COURT

                                                                                      PRETORIA

 

 

 

 

APPEARANCES

For Applicant      :        L Van Wyk

Instructed by       :        Legal Aid South Africa                   

For Respondent:          C Pruis

Instructed by     :          Director of Public Prosecution

Date of hearing:            10 June 2020     

Date of delivery:           29 June 2020              

 

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