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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GUATENG DIVISION, JOHANNESBURG

CASE NO: A130/2019

In the appeal:

MSOMI NORMAN YOUNG                                                                                     Appellant

and

THE STATE                                                                                                        Respondent

 

JUDGMENT

 

R STRYDOM J:

[1] This is an appeal against the sentence imposed by Du Toit AJ on 25 August 2003 in this division.  Sixteen years later, on 7 June 2019, the appellant obtained leave to appeal against this sentence. It is not necessary for purposes of this judgment to consider the reasons for the delay.

[2] At the hearing of this matter, there were two condonation applications granted in favour of the appellant and the state respectively.

[3] The appellant was convicted and sentenced on the following counts:

[3.1] Counts 1, 2 and 6 for murder;

[3.2] Counts 8, 10 and 11 for robbery with aggravating circumstances as defined in section 1 of the Criminal Procedure Act, 51 of 1977 (the CPA);

[3.3] Count 9 for unlawful possession of a firearm in contravention of the provisions of the Arms and Ammunition Act, 75 of 1969.

[4] The appellant was sentenced as follows:

[4.1] On count 1, to 17 years imprisonment;

[4.2] On count 2, to 20 years imprisonment;

[4.3] On count 6, to 15 years imprisonment;

[4.4] On count 8, to 15 years imprisonment;

[4.5] On count 9, to 3 years imprisonment;

[4.6] On count 10, to 15 years direct imprisonment; and

[4.7] On count 11, to 15 years imprisonment.

[5] An order was made to the effect that two years of the sentence imposed in respect of count 9 should run concurrently with the sentence imposed on count 8, and that 10 years of the sentence imposed on count 11 should run concurrently with the sentence imposed on count 10.

[6] Accordingly, the appellant was effectively sentenced to 88 (eighty-eight) years imprisonment.  It is against this sentence that leave to appeal was granted.

[7] When this sentence was imposed, the appellant was already serving an effective term of 33 years imprisonment pursuant to convictions and sentences for crimes committed after the dates of the crimes, the subject matter of this appeal.  These crimes constituted two counts of housebreaking, two counts of rape and six counts of the unlawful possession of arms and ammunition in contravention of the Arms and Ammunition Act.  All these crimes were committed on 30 May 2001. There was one further previous conviction proven and that was in relation to an attempted escape for which the appellant was sentenced to one year imprisonment. This crime was committed on 4 January 2000 being a date before 10 February 2001 when the crimes mentioned in counts 10 and 11 were committed. As such this would count as a previous conviction pertaining to these counts only.

[8] Although the appellant applied for leave to appeal against the effective term of 33 years imprisonment, this application was dismissed and, accordingly, that sentence is not subject to an appeal before this court and would not be considered.

[9] What is of importance, however, is that the trial judge, in relation to the sentence which he imposed, the subject matter of this appeal, ordered that the effective sentence of 88 years imprisonment “will only take effect after your present sentence has expired …”.  This would mean that the sentences had to be served consecutively and appellant first had to serve the 33 years imprisonment, after which he would serve the further sentence of 88 years imprisonment.  In total, the effective sentence for the two sets of convictions would amount to 121 years imprisonment.

[10] Turning now to the effective sentence of 88 years imprisonment imposed on appellant. It was not argued before us on behalf of the appellant that the individual sentences on the various counts were shockingly inappropriate or arrived at as a result of any form of misdirection by the trial judge.

[11] Leave to appeal was granted on the basis that a court of appeal may find that:

[11.1] the cumulative effect of the various individual sentences imposed by the court a quo, resulting in an effective sentence of 88 years imprisonment,  was excessive, and,

[11.2] by not ordering some portion of the 88 years imprisonment to run concurrently with the existing sentence of 33 years imprisonment, the court a quo imposed a sentence which was shockingly inappropriate.

[12] I will first deal with the effective sentence of 88 years imprisonment before dealing with the order that  this sentence should be served consecutively with the sentence of 33 years imprisonment.

[13] Before us, Ms Mokwatedi, appearing for the respondent, conceded that the cumulative effect of the various sentences resulted in an excessive sentence which can be described as disturbingly inappropriate.  She, nonetheless, argued that the appellant was a danger to society and had shown no respect for human life and the dignity of others. I agree with her view. The appellant deserves a very long term of imprisonment.  It was argued that the respondent is not calling for a “Methuselah” sentence which has been described as cruel, inhumane, degrading and unconstitutional[1] but still for an appropriately long sentence. I am also in agreement with this view as an effective sentence of 88 years imposed by the trial court is extraordinarily long and induces a sense of shock. It is substantially longer as what a sentence of life imprisonment would entail, which would be about 25 years if a sentenced prisoner is placed on parole. See in this regard the detailed discussion on this issue in State v Mahlatsi 2013 (2) SACR 625 (GNP) at para [21]-[25].  

[14] Considering that the legal representatives on behalf of the appellant and the respondent were ad idem  that the individual sentences adding up to the 88 years imprisonment were not excessive, there is no need to deal fully with the nature and circumstances of the various crimes.  It should however be briefly stated and borne in mind  that the two murder convictions pertaining to counts 1 and 2 were committed before the promulgation of the General Law Amendment Act 105 of 1997 (the Minimum Sentences Act) which determined minimum sentences for murder and other serious crimes.

[15] The first murder count pertains to an incident where the appellant shot and killed a pregnant woman after the appellant had started an argument with her at a night vigil held for purposes of a funeral.  Count 2 is also a murder count and relates to an incident where the appellant shot the deceased more than once as he had an argument with the deceased for walking in the street instead of on the pavement.  Count 6 relates to an incident when the appellant shot the deceased during a discussion about moneys owed by the deceased to the appellant.  Count 8, the robbery with aggravating circumstances, pertains to an incident where the appellant and a co-perpetrator robbed the complainant of R50 using a firearm.  Count 9 was a conviction of being in possession of an unlicensed firearm on two different dates.  Counts 10 and 11 relates to robbery with aggravating circumstances as a firearm was used when the appellant robbed two complainants, in their driveway, of a motor vehicle and other items.  All these counts relate to serious crimes being committed by the appellant. Undoubtedly, the appellant has no regard for human life and did not hesitate to shoot people for virtually no reasons at all. Add to this that appellant is a convicted rapist, there can be no counter view that at the time of his sentence in this matter, he was and should have been regarded as a danger to society.

[16] The court a quo correctly sentenced the appellant to a long term imprisonment but the cumulative effect of the sentence resulted in an effective sentence which was inappropriate and excessive.  On this basis, I am of the view that this court can interfere with the sentence which the trial court imposed. In my view the interference should be limited to the cumulative effect of the sentences.

[17] On behalf of the state, it was submitted that this court order:

[17.1] that the sentences on counts 1 and 6 be served concurrently with the sentence on count 2, which would mean an effective sentence of 20 years imprisonment on these counts;

[17.2] that the sentences on counts 10 and 11  be ordered to run  concurrently with the sentence on count 8, which would mean an effective sentence of 15 years imprisonment on these counts.

[17.3] Effectively, this amounts to 35 years imprisonment.

[18] In Ms Mokwatedi’s heads of argument and before us, she failed to mention the sentence on count 9, which was 3 years of imprisonment, of which only 2 years were ordered to run concurrently with the sentence on count 8, i.e. the 15 years imprisonment. The cumulative effect of these suggested sentences will therefore be 35 years imprisonment, without the further 1 year pertaining to count 9.

[19] Counsel for the appellant was in agreement with counsel for the state that her suggested sentence was an appropriate sentence to substitute the sentence of 88 years imprisonment but he argued that the court should rather impose life imprisonment as an all-encompassing sentence.  This is what the court being faced with multiple convictions did in the matter of State v Nkosi and others 2003 (1) SACR 91 (SCA) at para [11].  See also State v Mhlakaza and others 1997 (1) SACR 515 (SCA) at 523H – J.  In this latter case, the Supreme Court of Appeal sentenced the appellant to life imprisonment taking all counts together for sentencing purposes and pointed out that the several convictions resulted from more or less the same event.  The court concluded that it believed that a sentence of life imprisonment would have been fully justified not only in relation to the combined crimes, but also on the murder count alone.  In casu, the various convictions did not result from the same event and I am also not convinced that the appropriate sentence for the individual crimes should have been life imprisonment.  Accordingly, I am of the view that the more appropriate sentence should be to sentence the appellant as was suggested by the state, with few adjustments, and to allow, to some extent, the cumulative running of these sentences.  By sentencing the appellant as such, the cumulative effect of sentences will be ameliorated and an effective sentence of 36 years imprisonment would, in my view, be appropriate.

[20] The matter however does not end here.  As stated above, the appellant was already convicted and sentenced to an effective term of 33 years imprisonment.  The court did not order that any portion of the sentence of 88 years should run concurrently with the 33 years imprisonment.  In this regard, in my view, the court misdirected itself as the cumulated effect of the two sentences, if served consecutively, would result in a sentence which is disturbingly inappropriate.  The trial court, pursuant to the terms of section 280(2) of the CPA, should have ordered that a portion of the sentence imposed be served concurrently with the existing sentence. The trial court should have considered the duration of the sentences holistically.

[21] Section 280 of the CPA determines as follows:

“1. When a person is at any trial convicted of two or more offences or when a person under sentence or undergoing sentence is convicted of another offence, the court may sentence him to such several punishments for such offences or, as the case may be, to the punishment for such other offences, as the court is competent to impose.

2. Such punishments, when consisting of imprisonment, shall commence the one after the expiration, setting aside or remission of the other, in such order as the court may direct, unless the court directs that such sentence of imprisonment shall run concurrently.” (my emphasis).

[22] It is clear that section 280(2) provides the court with a discretion to allow newly imposed sentences to run concurrently as well as further sentences to run concurrently with previously imposed sentences. 

[23] In State v Kruger 2012 (1) SACR 396 (SCA), Shongwe JA said (at para [9]):

“In the present case the trial court and the High Court considered the previous convictions as an aggravating factor.  I too agree. The trial court as well as the High Court reasoned that it was inappropriate to order the sentences to run concurrently because the offences were committed at different places and at different times.  While this may be a consideration, it cannot justify a failure to factor in the cumulative effect of the ultimate number of years imposed. I believe that a sentencing court ought to tirelessly balance the mitigating and aggravating factors in order to reach an appropriate sentence.  I also acknowledge that it is a daunting exercise indeed.”

[24] If the 36 years sentence, which this court considers to be an appropriate sentence for the latest convictions, is added to the 33 years existing sentence, it amounts to a sentence of 69 years imprisonment.  This in my mind is still an inappropriate sentence which will extend beyond the natural life expectancy of the appellant.  When the appellant was sentenced during 2003, he was 29 years old. If he had to serve the total of the 69 years imprisonment, without taking cognisance of the possibility of parole, he would have to reach the age of 98 to complete his sentence. This would be cruel, inhumane, degrading and unconstitutional. This court must impose a sentence which leaves some room for the appellant, if he can rehabilitate himself, to be placed on parole and still have some life as a normal citizen.

[25] The court is aware that the families affected by the deeds of appellant and the society at large expect  courts to deal harshly with dangerous criminals and remove such criminals from society permanently. The court can, however, not overlook the fact that we live in a constitutional democracy where constitutional values dictate that punishment must not be cruel, inhumane and degrading. 

[26] In determining which portion of the further sentence should be ordered to run concurrently with the existing sentence, this court must consider what the appropriate sentence should have been when appellant was sentenced on 25 August 2003 and not now when this court sentences the appellant.  A court has a discretion to order the ante-dating of sentences imposed on appeal. I am of the view that in this case, it should be ordered. The reason being that appellant already served approximately 17 years of his 33 years sentence. If the current sentence is going to be ante-dated and ordered to run to concurrently, albeit only partially, with the existing sentence, the appellant effectively already served part of the further sentence.

[27] Section 282 of the CPA provides for the ante-dating of sentences imposed on appeal and stipulates as follows:

“Whenever any sentence of imprisonment imposed on any person on conviction for an offence is set aside on appeal or review and any sentence of imprisonment or other sentence of imprisonment is thereafter imposed on such person in respect of such offence in place of the sentence of imprisonment imposed on conviction or any other offence which is substituted for that offence on appeal or review, the sentence which was later imposed may, if the court imposing it is satisfied that the person concerned has served any part of the sentence of imprisonment imposed on conviction be anti-dated by the court to a specified date, which shall not be earlier than the date on which the sentence of imprisonment imposed on commission was imposed, and thereupon the sentence which was later imposed shall be deemed to have been imposed on the date so specified.”

[28] This would mean that if this court orders that some of the current sentence is to run concurrently with the previous sentence, the concurrent running already started from 25 August 2003 when the appellant was sentenced in this matter.

[29] This court is of the view that considering the cumulative effect of the two sentences, it should be ordered that half of the 36 years imprisonment run concurrently with the 33 years sentence imposed during or about 2002. This would mean that the appellant, leaving out the scenario of the 1 year imprisonment for attempted escape, will have an effective sentence of 51 years imprisonment. This sentence would in real terms equate to a sentence of life imprisonment.

[30] The following order is made:

(1) The sentences imposed by the court a quo are set aside and substituted with the following sentences:

a. Count 1, murder, 17 years imprisonment;

b. Count 2, murder, 20 years imprisonment;

c. Count 6, murder, 15 years imprisonment.

d. The sentences on counts 1 and 6 are ordered to be served concurrently with the sentence on count 2, effectively, the appellant is sentenced to 20 years imprisonment on these counts.

e. Count 8, robbery with aggravating circumstances, 15 years imprisonment;

f. Count 9, unlawful possession of a firearm, 3 years imprisonment;

g. Count 10, robbery with aggravating circumstances, 15 years imprisonment;

h. Count 11, robbery with aggravating circumstances, 15 years imprisonment;

i. The sentences on counts 10 and 11 are ordered to be served concurrently with the sentence on count 8;

j. Two years of the sentence imposed on count 9 is to be served concurrently with the sentence imposed on count 8;

k. The effective sentences for counts 1,2,6,8,9,10 and 11 will accordingly be 36 years imprisonment;

(2) The sentence is ante-dated to 25 August 2003 in terms of section 282 of the CPA.

(3) Half of the effective sentence of 36 years imprisonment is to run concurrently with the previously imposed sentence of 33 years imprisonment.

 

 

__________________________

R STRYDOM

(Judge of the Gauteng Local Division)

 

 

I agree

 

 

                                                                        _______________

                                                                        M.M MABESELE

                                                                        (Judge of the Gauteng Local Division)

 

 

I agree

 

 

_____________________________

C. VAN NIEKERK

(Acting Judge of the Gauteng Local

Division)

 

 

DATE OF HEARING: 9 March 2020

DATE OF JUDGMENT: April 2020

Counsel for the appellant: Mr S Hlazo Legal Aid South Africa

Counsel for the State: Ms Mokwatedi

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