---

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1)    REPORTABLE: YES / NO

(2)    OF INTEREST TO OTHER JUDGES: YES/NO

(3)    REVISED.

11-12-2020.

 

  CASE NO: A57/2020

 

In the matter between:

IGWARE, QUIVARE CARLOS                                                                           Appellant

and

THE STATE                                                                                                            Respondent

 

DATE OF HEARING: This matter was enrolled for hearing on 07 SEPTEMBER 2020, but was dealt with or determined on the basis of the papers or record and written argument filed on behalf of the parties, without appearance and oral argument.

DATE OF JUDGMENT: This judgment was handed down electronically by circulation to the parties’ representatives by email. The date and time of hand-down is deemed to be 10h00 on 11 DECEMBER 2020

 

JUDGMENT

 

MANAMELA, AJ (TEFFO, J concurring)

Introduction

[1]        The appellant, Mr Carlos Quivare Igware,[1] was convicted on 05 February 2018 by the Regional Court for the Regional Division of Gauteng, Benoni (the Trial Court) on a count of unlawful possession of a firearm and a count of unlawful possession of ammunition. The Trial Court sentenced the appellant to a prison term of 14 years 6 months for the unlawful possession of a firearm and 2 years for the unlawful possession of ammunition. The Trial Court had found that there were no substantial and compelling circumstances justifying deviation from imposing the minimum sentence of 15 years’ imprisonment prescribed by under the Criminal Law Amendment Act 105 of 1997. However, the Trial Court deducted 6 months from the prescribed minimum sentence of 15 years to credit the appellant for time spent in prison awaiting his trial. The sentence for the unlawful possession of ammunition was ordered to run concurrently with the sentence of 14 years 6 months imposed on the firearm count. The appellant came before this Court with leave of the Trial Court to appeal his sentence only. The appeal was enrolled for hearing on 07 September 2020, and decided on the basis of the papers filed, with no oral argument necessary.         

 

[2]        The nub of the appeal against sentence is that the Trial Court erred in finding that there were no substantial and compelling circumstances to deviate from imposing the prescribed minimum sentence of 15 years’ imprisonment. It is submitted that factors advanced before the Trial Court when cumulatively considered constituted substantial and compelling circumstances justifying deviation from the prescribed minimum sentence. The State or respondent opposes the appeal and supports the sentence imposed on the appellant.  As the appeal is only against sentence the circumstances relating to the appellant’s possession of the firearm are of most relevance to the issues in the appeal.

 

Evidence before the Trial Court

[3]        The appellant is a Mozambican national, but has been in South Africa for over 20 years and has a South African Identity Document, ostensibly as a permanent resident. He was arrested on 17 August 2017 at the Lindelani informal settlement (colloquially a squatter camp) within the Benoni environ in possession of a firearm described as SP1 Vektor 9mm semi-automatic pistol. He had no licence to possess the firearm and ammunition of 5 rounds. On 05 February 2018, almost 6 months after his arrest and imprisonment, the appellant appeared before the Trial Court for his trial. He was legally represented throughout the proceedings. He was convicted on both counts after he pleaded not guilty.

 

State’s Case

[4]        Mr Lionel de Gouveia, a constable within the South African Police Service (SAPS), was the only witness for the State. His testimony was essentially that acting on information received, he went with a colleague to the appellant’s place. Upon arrival they found the appellant, introduced themselves as police officers, obtained permission to search the appellant and found a semi-automatic 9 mm firearm and five rounds of live ammunition by the appellant’s waist. When asked the appellant failed to produce a licence for the firearm or to give a valid reason why he was in possession of same. The appellant was taken to Benoni SAPS for detention whilst awaiting trial. The appellant made admissions in terms of section 220 of the Criminal Procedure Act 51 of 1977 and thus rendered common cause all the elements of the crimes or charges, save only that he denied the firearm was found in his person and contended it was found under the bed in the room.

Appellant’s Case

[5]        The appellant testified in his defence. He stated that on the day of his arrest at about 18h00 he had found the firearm lying on the side of a gravel road along the Brakpan-Springs Road. He was with a certain Mr Dorris Zitha, a resident of Lindelani. He rebuffed Zitha’s suggestion that they sell the firearm, as he wanted to hand it over to the police. But he did not know the location of the police station as he stays elsewhere in Johannesburg and not in Lindelani. Zitha agreed to take him to the police station. He waited for Zitha by his (i.e. the appellant’s) nephew’s place, also in Lindelani. His nephew’s place is about 2 minutes away from Zitha’s place. He placed the firearm under his nephew’s bed after wrapping it with or placing it in a black plastic bag. He did not tell his nephew about the firearm as he was worried the nephew might divulge the information to others who might come for the firearm. When asked why he did not ask his nephew or any of the persons in the vicinity for directions to the police station he repeated his fears that strangers might have removed the firearm from him. But Zitha had not come to fetch him by the time he was arrested at his nephew’s place by three black male police officers. He had never seen De Gouveia, the State witness. But he would not venture a reason why De Gouveia would tell the court that he was the one who arrested him after finding the firearm by his waist. The firearm was under the bed and not in his person. But he conceded that the firearm was under his control. He explained that he did not keep the firearm for bad reasons, but to surrender it to the police.

 

Judgment of the Trial Court

[6]        The Trial Court found the appellant guilty on both counts, after finding his version of events highly improbable and certainly not reasonably possibly true. In sentencing the appellant the Trial Court considered the following submissions and factors for mitigation of sentence and for it to deviate from imposition of the minimum prescribed sentence for the firearm count, that the appellant was (a) a first offender as the State proved no previous convictions; (b) 41 years old (at the time of sentencing) and therefore not a young person; (c) from Mozambique, although he had been in South Africa for 20 years; (d) married to a dependent wife and had two children (then 5 years old and 1 year old) back in Mozambique; (e)  was at school up to the equivalent of standard 5; (f) earning about R1 300 per fortnight from his employment as a tiler at Harry’s Associates, and (g) was in passive possession of the firearm and ammunition as he had not possessed same for illegal use.

 

[7]        The Trial Court considered the devastation caused by illegal firearms in South African communities often resulting in loss of innocent lives. Illegal firearms are the prominent cause of violent crimes and possession of illegal firearms is in itself a prevalent crime, the Trial Court remarked. It held further that the only way to stop this scourge was through imposition of severe sentences, as this is the only way to serve the interests of society. Whilst bearing in mind the purposes or objectives of sentencing (i.e. retribution, deterrence, prevention and rehabilitation) the Trial Court held that in this matter deterrence was to be emphasised. It found that there were no substantial and compelling circumstances warranting deviation from imposition of the prescribed minimum sentence. However, it credited the appellant with the period of over 5 months spent by the appellant in jail awaiting trial by imposing a sentence of 14 years and 6 months and 2 years for the unlawful possession of ammunition. The latter sentence was ordered to run concurrently with the former so that the appellant serves 14 years 6 months’ jail term. The appellant was also declared unfit to possess a firearm.

 

 

Grounds of appeal and submissions

[8]        The appellant was granted leave to appeal his sentence by the Trial Court. It is submitted on his behalf that the sentence of 14 years and 6 months’ imprisonment imposed on him by the Trial Court is shockingly disproportionate to the crime he committed and to him as a first offender.  Further, that the Trial Court ought to have found his personal circumstances and other factors, such as the time spent by the appellant in custody awaiting trial, cumulatively to constitute substantial and compelling circumstances justifying deviation from the prescribed minimum sentence. Other factors worthy of consideration in this regard include that the appellant gave his cooperation when he was arrested; he did not commit any crimes with the impugned firearm, and he was on antiretroviral medicine or AVR’s. Overall, it is submitted that the Trial Court overemphasised the seriousness of the crime and made general assumptions or comments that firearms are used in commission of violent crimes, when in this matter there was no evidence that the impugned firearm had been used to commit crime or was intended for such use. Also, deterrence, as an element or objective of sentencing was overemphasised above the other objectives, being prevention, rehabilitation and punishment. Relying upon the authority of some decided cases, some of which I will specifically mention later below, we were urged to substitute a lesser sentence for the sentence of 14 years 6 months’ imprisonment ante-dated to 05 February 2018.

 

[9]        The State or respondent in this appeal opposed the appeal and urged us not to interfere with the sentence of the Trial Court. The State reiterated the principles applicable to the determination of appeals, including where the sentence imposed by the trial court is totally disproportionate to the gravity or magnitude of the offence. The State also relied on a number of decided cases as authority for the dismissal of the appeal and its contentions. In sum, the State contends that the Trial Court was correct in finding no substantial and compelling reasons to deviate from the prescribed minimum sentence and that there was no misdirection warranting interference by this Court with the sentence of the Trial Court.

 

Applicable legal principles and the facts of this matter (a discussion)

[10]      Central to the issues to be determined in this appeal is the application of section 51 of the Criminal Law Amendment Act 105 of 1997 (“the Minimum Sentences Act”).[2] The appellant was sentenced by the Trial Court to a period of incarceration prescribed in section 51(2)(a) of the Minimum Sentences Act for his conviction for the unlawful possession of a semi-automatic firearm. The Trial Court had also found that there were no substantial and compelling circumstances warranting deviation from the prescribed minimum sentence, as envisaged by section 51(3)(a) of the Minimum Sentences Act.[3]

 

[11]      The appeal is premised on two pivots or essential grounds. Firstly, that the Trial Court ought to have deviated from the minimum sentence prescribed in section 51(2) on the basis of substantial and compelling circumstances, according to the appellant, existing at the time of his sentencing. Secondly, that the sentence of 14 years and 6 months’ imprisonment is shockingly disproportionate to the crime and the appellant as a first offender. A finding in favour of the appellant on the first ground would dispose of the appeal. But a finding against the appellant would require a determination of the second ground. I deal with both grounds under self-explanatory subheadings, next.

 

Substantial and compelling circumstances (did they exist at sentencing?)

[12]      The Trial Court whilst finding no substantial and compelling circumstances, singled out one factor or circumstance worthy of reduction of the minimum sentence of 15 years. It considered that the appellant was in custody awaiting his trial for over 5 months and consequently reduced the minimum sentence of 15 years by 6 months, hence the sentence of 14 and half years. It also ordered the sentence of 2 years’ imprisonment imposed for the unlawful possession of ammunition to run concurrently with the longer sentence.

 

[13]      In my view, the 6 months’ reduction suggests a deviation from the prescribed minimum sentence. This also suggest that the Trial Court, even if intuitively so, found the period spent by the appellant in custody a substantial and compelling circumstance. But nothing turns on this as the appellant is evidently dissatisfied with the degree of deviation, if any, and contend – in terms of the second essential ground or pivot of the appeal – that the imposed sentence is harsh or disproportionate. Therefore, there is a need to determine whether the Trial Court erred in holding that there were no substantial and compelling circumstances justifying deviation from the imposition of the minimum sentence prescribed in section 51(2)(a) of the Minimum Sentences Act.

 

[14]      Determination of whether or not substantial and compelling circumstances exist (or existed in a matter at the time of sentencing) would turn on the particular facts or circumstances of the matter, including attributes of the offender or the appellant, the peculiar circumstances of the crime and interests of society. But such determination would benefit significantly from a review or consideration of previous similar decisions and sentences imposed in those decisions, even though there is authority that they generally serve a very limited purpose and are only useful to determine a general trend and to ensure a measure of consistency in sentencing, due to the need for individualisation of the sentencing process.[4] I consider a number of cases relevant to the issues in this appeal.[5] I am indebted to both counsel for the citation of some of these cases.

 

[15]      In S v Shabalala,[6] a decision of a full court of then Natal Provincial Division, the Court dealt with a 44-year-old married accused who was also a first offender. He was convicted on plea of guilty in the regional court for unlawfully possessing an AK47 machine gun, a 9 mm pistol and ammunition for both firearms. His explanation was that he was safekeeping the weapons and ammunition for his brother and had no intention to use them. He was sentenced to an effective prison term of 15 years on all counts. On appeal it was held that on the facts of the matter the prison term of 15 years for possession of the AK47 not used in the commission of any offence, coupled with an explanation that the weapon was kept for his brother, induces a sense of shock.[7]  The Court reduced the sentence to 5 years imprisonment and further conditionally suspended 3 years thereof for 5 years. Although the provisions of the Minimum Sentences Act did not apply in Shabalala due to the appellant having been not made aware at the appropriate time that they would be relied upon, the facts in Shabalala are clearly distinguishable from those in this appeal.  There were two weapons involved and yet the Court deemed it fit to drastically reduce the punishment.

 

[16]      In S v Radebe,[8] a full bench of the then Orange Free State Provincial Division dealt with an appellant who, apart from being convicted by the regional court of culpable homicide, was also convicted for unlawfully possessing a firearm (i.e. a Norinco pistol) and ammunition. He had been found in possession of the firearm, which was reasonably suspected to have been stolen, and he could not give a satisfactory account of his possession of the firearm. He was given an effective sentence of 18 years’ imprisonment (after the Court ruled his sentences to run concurrently), which sentence included 15 years for the unlawful possession of a firearm. On appeal the Court held that it was clear that it was not intended by the Legislature when enacting the Minimum Sentence Act that the prescribed sentence of 15 years for unlawful possession of a semi-automatic firearm should be applied to unlawful possession of a pistol even if the pistol had a semi-automatic mechanism or was commonly known as a semi-automatic firearm.[9]  The Court set aside the 15 years’ imprisonment sentence and substituted for it a sentence of 3 years’ imprisonment antedated to 30 May 2000.[10] The view in Radebe that the Minimum Sentences Act wasn’t aimed for semi-automatic pistols was later debunked. Therefore, there is no material guidance to be derived from this matter.

 

[17]      In Thembalethu,[11] the Supreme Court of Appeal (the SCA) dealt with an appellant convicted in the regional court on four counts, including for robbery with aggravating circumstances, and unlawful possession of a semi-automatic firearm. He was sentenced to 15 years’ imprisonment for the firearm count, but his effective sentence as 25 years’ imprisonment after the court ordered the individual sentences on the counts amounting to 36 years and 9 months’ imprisonment to run concurrently. His appeal against the sentence of 15 years’ imprisonment for the firearm count to the Eastern Cape High Court was dismissed, hence his approach of the SCA. The SCA also had to determine the interpretation of section 51 (2) of the Minimum Sentence Act. The SCA after criticising previous decisions regarding the view that the Minimum Sentence Act was ill-conceived and the imposition of the mandatory sentences was absurd, held that although the way the Minimum Sentence Act was drafted is not “a specimen of clarity”, the impugned provisions were not rendered nugatory.[12] It held that the fact that one of the consequences of the Minimum Sentence Act is that the unlawful possession of a pump-action shotgun would carry a more lenient sentence than would the unlawful possession of a semi-automatic firearm, does not render the legislation or its impugned provisions absurd.[13] For the Legislature may have singled out of semi-automatic firearms due to the frequency with which they have been used in violent crimes.[14] On the sentence imposed by the High Court, the SCA emphasised the principles from S v Malgas that the minimum sentences prescribed in the Minimum Sentences Act may be departed from where substantial and compelling circumstances exist.[15] In Thembalethu, the SCA dismissed the appeal after finding laudable and “a sound approach” the trial court’s ordering that 11 years of the 15 year sentence imposed for unlawful possession of firearm should run concurrently with the robbery sentence, thereby “tempering that which would otherwise have been a very harsh sentence” this taking place after the trial court found no substantial and compelling circumstances.[16] The outcome in Thembalethu although of optimum guidance is materially affected by the fact that a large portion of the sentence on the firearm charge (i.e. 11 years) was “tempered” with by the order for concurrent running. But it is clear that the original sentence of 15 years would not have been allowed to stand with the proportionality brought by the concurrency order.

[18]      A few years after Thembalethu in the case of S v Madikane[17] the Eastern Cape (Grahamstown) Division of the High Court dealt with an appeal concerning an appellant who was convicted on a guilty plea by the regional court on a charge of unlawful possession of a firearm and sentenced to 15 years’ imprisonment. He admitted obtaining 9 mm Norinco pistol from some other boys in the area and explained that he was safekeeping the firearm. He was found at some other premises when the police arrived to search the premises and found the firearm in his possession. His personal circumstances included the following: he was 32 years of age; not permanently employed but occasionally doing casual work; lived with and depended on his aunt, a domestic worker. He had three previous convictions for housebreaking with intent to steal and theft, plus two other immaterial previous convictions. Further, the trial court considered the following factors for purposes of sentencing: (a) that, the appellant pleaded guilty and therefore took responsibility for his actions; (b) that, there was no evidence that the firearm had been used in the commission of any offence;[18] (c) that, society is outraged by the commission of the type of offence involving unlawful possession of firearms; (d) that, unlawful possession of a firearm is in its own right a serious offence; (e) that, violent crimes are often committed by those in unlawful possession of firearms, and (f) that, society is or its members are entitled to peaceful living and protection. The trial court imposed the prescribed minimum sentence of 15 years’ imprisonment after finding no substantial and compelling circumstances for a lesser sentence.[19] The High Court held that circumstances constituting substantial and compelling circumstances contemplated by section 51(3) of the Minimum Sentences Act may comprise “any of the factors that courts traditionally take into account as mitigation, and may be the cumulative effect of a number of such factors”.[20] It further held if by imposing the prescribed minimum sentence would render the sentence imposed disproportionate to the crime, the criminal and the legitimate needs of society, that fact of itself constitutes a substantial and compelling circumstance warranting or indeed requiring the imposition of a lesser sentence than the prescribed minimum sentence.[21]

 

[19]      Still in Madikane the Court after trawling the law reports, lamented that it was unable to find, besides Thembalethu, a case where the accused was sentenced to 15 years’ imprisonment for possession of a semi-automatic pistol.[22] Further, the Court held that a sentence of 15 years imprisonment for unlawful possession of automatic firearms also appears to be exceptional.[23] Regarding the unlawful possession of semi-automatic pistols, the Court stated that it found no reported decision, apart from Thembalethu, in which a sentence of more than 3 years’ imprisonment was imposed.[24] The Court against the view that the circumstances of cases differed, the historical moment of cases differed and that some involved mitigating factors noticed a pattern in the cases generally placing the sentences in the region of two years’ imprisonment.[25] It concluded that the sentence of 15 years’ imprisonment is unlikely to be proportional to the crime, the criminal and the legitimate needs of society, in all but the most serious of cases, even if one were to impose more severe sentences for the unlawful possession of automatic or semi-automatic firearms in terms of the provisions of the Minimum Sentences Act.[26] In the end the Court found the prescribed sentence of 15 years’ imprisonment to be unjust and further held that the sentence imposed, in itself, constituted a substantial and compelling circumstance “justifying and requiring [the Court] to impose a less severe sentence than the prescribed sentence”. It reduced it to 7 years imprisonment.[27] The facts around the nature of the weapon, the appellant’s explanation of fortuitous finding of same and some of the personal circumstances in Madikane are similar to those in the appeal before us. But what clearly distinguishes the two maters is the guilty plea and existence of three previous convictions for the appellant in Madikane. Whilst the former is clearly a mitigating factor the latter is somewhat aggravating in effect. The Court still found the sentence of 15 years’ imprisonment unlikely to be proportional; unjust and in itself constituting a substantial and compelling circumstance justifying imposition of a drastically reduced - less severe - sentence than the prescribed sentence.

 

[20]      Next I deal with the full bench decision of the KwaZulu Natal, Pietermaritzburg Local Division of the High Court in S v Madlala[28] in which the appellant was appealing against a sentence of 15 years’ imprisonment for possession of an AK47 automatic firearm, which sentence had been ordered to run concurrently with the others so that the appellant serves an effective imprisonment term of 18 years. His charges included a charge for attempted murder. The trial court had found no substantial and compelling circumstances, after taking into account the appellant’s personal circumstances that he was a 35-year-old unmarried father of a 3-year-old child; was unemployed when he was sentenced; had passed grade 11 at school and had previous convictions for robbery, unlawful possession of a firearm and ammunition. The Court upheld the trial court’s finding that there were no substantial and compelling circumstances to deviate from the minimum prescribed sentence and dismissed the appeal against sentence. My views on the effect of the order of concurrency made in Thembalethu above are applicable in respect of Madlala.[29] In the latter, sentence for the firearm charge of 15 years’ imprisonment was ordered to run concurrently with the attempted murder. Therefore, Madlala is notable - for purposes of this appeal - only for a finding of no substantial and compelling circumstances.

 

[21]      In S v Swartz[30] a full court of the Western Cape, Cape Town Division dealt with an appeal against sentence of an appellant convicted on four counts. The counts were two counts of unlawful possession of a semi-automatic firearm for which he was sentenced to 15 years’ imprisonment per count (i.e. counts 1 and 3) and two counts of unlawful possession of ammunition for which he was sentenced to 3 years’ imprisonment (i.e. counts 2 and 4). Ultimately the trial court ordered that 10 years of count 3 and 2 years of count 4 run concurrently with the sentence for 15 years’ imprisonment on count 1. The result was an effective sentence of 24 years’ imprisonment. The Court naturally considered the  appellant's previous convictions to constitute aggravating circumstances, which included possession of a dangerous weapon and the unlawful possession of a firearm for which (the latter) he had been previously sentenced to 2 years’ imprisonment.[31] The Court took cognisance of the fact that the possession and the use of unlicensed semi-automatic firearms is a matter of very serious nature and the Legislature by requiring the imposition of a minimum sentence of 15 years’ imprisonment – in the event of no substantial and compelling circumstances – had in mind the general involvement of unlicensed weapons in other serious crimes such as murder and robbery by the possessor or those who may access the possessor’s unlicensed weapon, very often not apprehended.[32]  However, the Court found that the trial court erred in finding no substantial and compelling circumstances with regard to one of the two counts of unlicensed possession of a semi-automatic firearm. The appellant had explained that he fortuitously found the firearm at a rubbish dump on the same day he was arrested and, consequently did not have the firearm in his possession for very long by the time he was apprehended.[33] He had pleaded guilty on the two counts, which ought to redound in his favour. Therefore, the sentence of 15 years’ imprisonment on count 3 was disproportionate. The Court substituted a sentence of 7 years for it, but did not interfere with the sentence of 15 years’ imprisonment on count 1.[34] This clearly suggests mixed fortunes for the appellant. In one respect the sentence of 15 years’ imprisonment was reduced for count 3, whilst it was retained in its entirety for count 1, both counts relating to the unlawful possession of firearms. The Court even further tempered with the impact of the reduced sentence of 7 years imposed for count 3 by ordering the concurrent running of 4 years thereof. The effect of the sentences is only more pronounced in respect of the unaltered sentence for 15 years’ imprisonment in count 1 and the non-concurrent 3 years for count 3 on the firearms counts. All these factors, including the previous convictions proven in Swartz clearly distinguishes it from the appeal before us.

 

[22]      The SCA after Thembalethu[35] had another opportunity to deal with the issue of appropriate sentence for the unlawful possession of a firearm in its unreported decision of Asmal v S.[36] This case involved the unlawful possession of an AK47, a fully automatic rifle, for which the trial court imposed a sentence of 15 years’ imprisonment, ordered to run concurrently with a sentence for life imprisonment imposed for the murder charge in the same matter. An appeal to the full court of the KwaZulu-Natal (Pietermaritzburg) Division had mixed outcomes, hence the appeal to the SCA – albeit only on a limited basis - against the sentence for the firearm charge. He had murdered an 18-year-old boy he employed as a herdsman on suspicion that the boy had stolen his property. The police found the firearm upon searching the appellant’s house after his arrest on suspicion of murder. He challenged the trial court’s sentence on the grounds that it ought to have found that the following to constitute substantial and compelling circumstances: the firearm was unloaded and with no ammunition, although it had the potential to fire automatically, and also, that it had not been used in the commission of an offence. In the appeal before the SCA, the Court agreed with the concession made by the State that 15 years’ imprisonment induced a sense of shock and that the combined effect of the appellant’s personal circumstances jointly with the surrounding factors constituted substantial and compelling circumstances.[37] The appellant’s personal circumstances included that he was 42 years old at sentencing; married with 4 children and employed as a junior manager at a store.[38] His previous convictions were immaterial and he was therefore considered a first offender. The SCA held that the sentence imposed for the firearm charge was not only shockingly harsh, but also disproportionate on the facts of the case.[39] It reduced it to 8 years’ imprisonment, also ordered to run concurrently with the life sentence.[40] But surprisingly – in my respectful view - there was no word about or reference to the SCA’s previous decision of Thembalethu.[41] Alhough the case of Asmal is clearly distinguishable for its dissimilarities with the appeal before us, the reduction of sentence under its circumstances is noteworthy. But the concurrency order with the life term renders any attempt at comparison problematic or even impossible.

 

[23]      In S v Delport,[42] a full bench decision of the Western Cape (Cape Town) Division, the Court dealt with an appeal involving an appellant dissatisfied with his sentences imposed by the regional court for possession of an unlicensed fully automatic firearm and possession of 34 rounds of ammunition. He had been sentenced to 15 years’ imprisonment for the firearm count and 3 years’ imprisonment for the ammunition count, which were ordered to run concurrently. His personal circumstances included that he was 30 years old when he was convicted; he was not married; he did not have any dependants, he was unemployed and his work history only involved doing odd jobs from time to time; he had two recent previous convictions for possessing drugs and had been incarcerated for over 9 months at the time of sentencing.[43] The trial court found no substantial and compelling circumstances and consequently imposed the prescribed minimum sentence.[44] On appeal, the Court distinguished the facts in Delport from those in Asmal,[45] Madikane[46] and Swartz,[47] and further remarked that it had difficulty with the suggestion from some decided cases that the unlawful possession of a firearm ought to be considered a serious offence only if the firearm had been used for the commission of a serious crime. That suggestion loses sight of the fact that the use of the firearm in the commission of other serious crimes is bound to be separately punished for those crimes.[48] Further, the Court endorsed heavy penalties for the unlawful possession of firearms as these weapons are used in violent crimes and the Legislature clearly intended to curb and disincentivise these violent crimes through the alteration of the statutory landscape or context through the passing of the Minimum Sentences Act, which the sentencing Courts have an obligation to recognise and apply.[49]  The circumstances of a particular matter would define the seriousness of the offence, as there is still a need for a gradation of the seriousness of the offence of the unlawful possession of firearms for in some cases the innocuous of the unlawful possession and where the firearm was unlikely to have been kept or used for any nefarious purpose would render a sentence of 15 years’ imprisonment “clearly … disproportionate, and irreconcilable with a constitutionally compatible implementation of the prescribed minimum sentence”.[50] The latter aspect suggests some level of evidential burden on the part of an accused person to establish that the unlawful possession of the firearm was relatively benign.[51] The Court held in Delport that there were features pointing to the seriousness of the offence.[52] Ultimately, the Court found the sentences imposed appropriate and thus dismissed the appeal. This matter differs with the appeal before us mainly on the existence of previous convictions on the former. Quite expectedly the personal circumstances also differ.

 

[24]      The case of S v Pillay[53] involved the murdering of a female person and therefore perpetuation of the femicide plague in this country. The appellant had been convicted of murdering his girlfriend or fiancée and the unlawful possession of a firearm. He was sentenced to life imprisonment for the murder and 15 years’ imprisonment for the firearm conviction. The appellant was 32 years old, who had completed grade 11 at school and was unmarried man with no children. He was the sole breadwinner for his family after his father became ill requiring fulltime care by his mother. After considering the circumstances of the matter the Court sentenced him to 5 years for the unlawful possession of a firearm, which was ordered to run concurrently with the sentence of 20 years’ imprisonment on the murder charge. The concurrency order with the long sentence for the murder charge distinguishes this matter with the appeal before us.

 

[25]      In a recent full bench decision of the Eastern Cape (Grahamstown) Division in S v Jansen[54] the Court dealt with an appellant who was convicted by the regional court for the unlawful possession of a 9 mm pistol and ammunition. He had been sentenced to 15 years’ imprisonment for the firearm charge and 18 months’ imprisonment for the ammunition charge, which were ordered to run concurrently. The Court fully agreed with the reasoning and the findings made in Swartz and Delport[55] and further agreed with the view expressed in S v Vilakazi[56]that added that the minimum sentence legislation was introduced in response to an upsurge of serious crimes at the time.[57] The Court labelled as “a narrow approach” the criticism levelled against the Minimum Sentences Act which focuses on the failure of the prescribed sentences imposed by the courts to reflect the differences in the calibre of the firearms involved in the cases before the courts in question.[58] The Court also disagreed with the view in Madikane that the prescribed minimum sentence for unlawful possession of a semi-automatic pistol ought to only be imposed as exception.[59] The Court reviewed the appellant’s personal circumstances placed before the trial court (i.e. that he was 31 years of age at the time; quit school after completing grade 10; was temporarily employed as a taxi conductor; was unmarried with two minor children from different mothers and had a number of previous convictions including for the unlawful possession of a firearm for which he received a suspended sentence of 5 years’ imprisonment). The Court agreed with the trial court that the latter circumstance constituted an aggravating factor.[60] Further the Court considered several features pointing to the seriousness of the offence and that all indications are that the appellant possessed the firearm and the ammunition for a criminal purpose.[61] It was further held that whilst it is a necessary factor to be considered for purposes of sentencing the fact that the appellant in Jansen spent two years in custody before his sentencing, this factor is not on itself sufficient reason or circumstance to depart from imposition of the prescribed minimum sentence,[62] but a factor to be considered in the context of all relevant factors when determining the proportionality of a sentence.[63] The Court also considered the fact that the trial court, as the sentencing court, in the context of weighing the traditional factors to determine the proportionality of the prescribed sentence, considered the interests of society to take into account the prevalence of offences relating to the unlawful possession and use thereof in violent crimes, more particularly gang activities in the Port Elizabeth area.[64] The Court concluded that the sentence of 15 years’ imprisonment was not disproportionate and accordingly dismissed the appeal.[65] The existence of previous convictions, particularly for a firearm charge met with 5 years’ suspended sentence, clearly distinguishes this matter from the appeal before us.

 

[26]      I will discuss the possible influence of the above cases on the outcome of this matter in the conclusion part of this decision, below. Next, I deal with the proportionality element, which is the other essential ground or element of the appeal before us.    

 

Proportionality of a sentence

[27]      Apart from challenging his sentence of 15 years’ imprisonment on the basis that the Trial Court erred in its finding of no substantial and compelling circumstances, the appellant complains that the sentence imposed is “disproportionate to the crime, the criminal and the legitimate needs of society”.[66] At the heart of the proportionality requirement  lies the value of human dignity.[67] In Vilakazi the Court held that according to both Malgas and S v Dodo[68] that it was “incumbent upon a court in every case, before it imposes a prescribed sentence, to  assess, upon a consideration of all the circumstances of the particular case, whether the prescribed sentence is indeed proportionate to the particular offence” and where the court is satisfied that a sentence lesser than the prescribed sentence is justified then the court is bound to impose the lesser sentence, as the courts are not vehicles for injustice.[69] The proportionality principle is borne in mind in the conclusions below.

 

Conclusion

[28]      The Trial Court, in the appeal before us, found no substantial and compelling circumstances to deviate from the imposition of the prescribed minimum sentence of 15 years’ imprisonment. This finding was made at the same time as the Trial Court’s finding that it ought to credit the appellant with 6 months for the period of just over 5 months spent in jail by the appellant awaiting trial. I have discussed the palpable contradiction of this holding. There is no need to discuss it further, save to agree with the view in Jansen that this factor is not in itself sufficient reason or circumstance to depart from the imposition of the prescribed minimum sentence,[70] but a factor to be considered in the context of all relevant factors when determining the proportionality of a sentence.[71] But, overall, I agree with the Trial Court that there are no substantial and compelling circumstances justifying deviation from the imposition of the prescribed minimum sentence.

 

[29]      Before I turn to and conclude on the element of proportionality I would like to briefly comment on some remarks of the Trial Court. The Trial Court held that deterrence was to be emphasised through imposition of severe sentences in order to serve the interests of society considering the devastation caused by illegal firearms and their prominent role in violent crimes.[72] I disagree. A sentencing court ought not overemphasise the public interest and general deterrence, as deterrence or even retribution are not the only legitimate elements of punishment or the overriding ones.[73]

 

[30]      Despite my agreement with the Trial Court on the absence of substantial and compelling circumstances, that does not conclude the matter. It has to be determined that the sentence imposed by the Trial Court is proportionate to the crime, the appellant and the legitimate needs of society.[74] This is to be determined from a consideration of all the circumstances of this matter. For a disproportionate sentence is, in itself, a substantial and compelling circumstance warranting or indeed requiring the imposition of a sentence lesser than the prescribed minimum sentence.[75] But, it is clear on the circumstances of this matter that the sentence of 14 and half years imprisonment is disproportionate. This very fact constitutes misdirection entitling this Court to interfere on appeal. Then the question that immediately comes up to mind is what length of sentence would be proportionate?

 

[31]      From the cases reviewed above the length of jail terms imposed differed. This was largely due to the grounds found by the appellate courts to interfere with the sentences of the trial courts. Naturally, the reasons differed as borne by the peculiar circumstances of each case. The prescribed minimum sentence of 15 years was reduced in Shabalala to 5 years (3 years further conditionally suspended for 5 years); in Radebe to 3 years; in Madikane to 7 years; in Swartz to 7 years on the one count (4 years ordered to run concurrently with another sentence), although leaving unaltered the other 15 years sentence; in Asmal to 8 years (ordered to run concurrently with a life sentence), and in Pillay to 5 years (ordered to run concurrently with a 20 years’ sentence for a murder charge). Therefore, without the orders for suspension and concurrency the reduced sentences are between 3 and 8 years or between 5 and 8 years when Radebe (i.e. 3 years) is excluded due to its discredited views on the Minimum Sentences Act.[76] The minimum sentence was not interfered with in Thembalethu (with 11 years ordered to run concurrently with a sentence for robbery in an effective sentence of 25 years); in Madlala (ordered to run concurrently with the other counts in an effective sentence of 18 years); in Swartz (with other counts ordered to run concurrently with the 15 years and the second firearm charge drastically reduced); in Delport and in Jansen (although heavily aggravated by the previous conviction with 5 years suspended sentence on a firearm charge).

 

[32]      I find in this matter that the sentence of the Trial Court ought to be set aside and for it substituted a sentence of 8 years’ imprisonment of the appellant. I consider this length of sentence justified by the circumstances of this matter. Most prominent in these consideration is the fact that the appellant did not fully explain the circumstances of his possession of the firearm. It is also reasonable to think that the firearm may have been acquired in unlawful manner. I share the Trial Court’s views that the condition of the firearm when it was found, as described by the police witness, is not compatible with a fortuitous find by the road side. The appeal against sentence would be upheld as reflected in the order below.

 

Order

[33]      In the result, I propose that the following order be made:

a)         the appeal against sentence is upheld to the extent set out in b) below;

b)         the sentence of the Regional Court for the Gauteng Regional Division, Benoni is set aside and the following sentence is substituted for it antedated to the 05 February 2018:

 

“1. The accused is sentenced to imprisonment as follows:

(a)   8 years in respect of count 1, and

(b)   2 years in respect of count 2.

2.      the sentence in count 2 shall run concurrently with the sentence in count 1.”

 

c)         The effect of the order in 2 hereof is that the accused is sentenced to effective imprisonment for 8 years as at 05 February 2018.

 

                                                                                                                                                                                                                                               

                                                                                                K. La M. Manamela

                                                                                                Acting Judge of the High Court

                       

                                                                       

M.J. Teffo

Judge of the High Court

 

I agree and it is so ordered

 

Appearances:

For the Appellant         :                       Mr R du Plessis

Legal Aid SA, Pretoria

 

For the Respondent       :                      Adv L Williams

                                      :                      Director of Public Prosecutions

Gauteng Division, Pretoria

---