SENTENCE IN THE HIGH COURT OF SOUTH AFRICA CASE NO.: CC37A/2011 DATE: 8 JUNE 2011 SENTENCE. The accused has been convicted on one count of theft of a

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1 1 IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE, GRAHAMSTOWN) CASE NO.: CC37A/2011 DATE: 8 JUNE 2011 In the matter between: THE STATE versus: SONWABO BRIGHTON QEQE ACCUSED GROGAN AJ The accused has been convicted on one count of theft of a motor vehicle, and three counts of murder. I will not repeat in detail the facts that gave rise to these convictions. Suffice it to say for present purposes that the accused pleaded guilty to the charge of theft, and that the murder convictions arose out of the admittedly reckless driving of the stolen motor vehicle while the accused and his partners in crime were seeking to evade arrest. The State has called for a sentence of between five and eight years direct imprisonment for the theft of the vehicle. This court is not privy to the circumstances of the theft and must accordingly be guided by what the State deems an appropriate sentence for that conviction. I was informed from the Bar that

2 one of the three persons charged with the theft of this particular vehicle was sentenced to five years imprisonment, half of which was suspended. I have also been informed that this is the accused s second offence for car theft and that his role in the theft of this particular vehicle was, if I may put it this way, more active than the role of the other accused who I have already mentioned. In my view, and for reasons that I will elaborate on in a moment, the appropriate sentence for the theft of the vehicle is six years imprisonment. The appropriate sentence for the three convictions of murder is a more difficult matter. As the State has correctly pointed out, each of these convictions fall within the scope of the Criminal Law Amendment Act 105 of 1997, section 51. That provision prescribes a sentence of at least 15 years for murder unless there are substantial and compelling reasons to impose a lesser sentence. Mr Schüring, for the defence, has read into the record the personal circumstances of the accused and a number of factors which he avers amounts to substantial and compelling circumstances. I will revert to these presently. But I merely note that to my mind and without in any sense diminishing the grave nature of the accused s conduct or its tragic consequences, there is one factor present in this case which in

3 3 my view would, amount to a substantial and compelling circumstances as contemplated in the said Act. This is that, as this court has found, the accused did not wish to kill the deceased or deliberately set about causing their deaths. There are authorities which confirm that in cases of murder the state of mind of the accused may serve as a mitigating factor. I cite as an example S v DLADLA EN ANDERE 1980(1) SA 1 (A). However, in most cases I have been able to find on this point that form of intent did not assist the accused. (see for example S v RAPITSI 1987(4) SA 351 (A); S v MAFELE AND ANOTHER 1980(3) SA 825 (A); S v MIENIES 1978(4) SA 560 (A); S v MMUSI EN N ANDER 1968(1) SA 545 (A)). In this case the accused was found guilty of murder on the basis of dolus eventualis a term explained in my judgment on conviction. I am prepared to accept that the legislature did not intend the automatic imposition of the prescribed minimum sentences in such cases This court will accordingly sentence the accused by exercising its common law jurisdiction, as it is in any event enjoined to do by S v MALGAS 2001(2) SA 1222 (SCA). This does not mean, I hasten to emphasise, that the exercise of the court s common law jurisdiction, necessarily means that a sentence need be imposed that is lighter than that prescribed in the Minimum Sentence Act.

4 I accordingly take into account the traditional trilogy of factors or consideration set out in the oft quoted judgment of S v ZINN 1969(2) SA 537 (A). These are the crime, the interests of society, and the personal circumstances of the offender. Any unlawful act that gives rise to the deaths of innocent persons is self-evidently serious. In this case the innocent victims were little children of between two and nine years of age. Each happened by a cruel stroke of fate to be in the path of the vehicle driven by the accused on a day which would otherwise have been perfectly normal. As I have found, the accused did not deliberately drive the stolen vehicle at the children. But he attempted to execute a dangerous turn while they were in his path to save his own skin, reckless of the obvious danger to which he exposed the three children and possibly others in the vicinity. The accused could of course have avoided all of this by the simple expedient of stopping when he saw that the game was up and surrendering himself to the police. As it was, he put his own interests first. On the evidence had the car he was driving not veered off the road in Ntlana Street an accident elsewhere in the township would have been in the making. In these circumstances the fact that the accused did not directly intend the deaths of the deceased may serve as a substantial and compelling circumstance, but in my view, cannot stand that

5 5 strongly in his favour as a mitigating circumstance. The interest of society, particularly of young children, in being protected against reckless drivers is obvious. The carnage on our roads caused by selfish and reckless drivers continues every day. In this case the accused s recklessness went far beyond the mere taking of a chance. It concerned, as this court has found, a deliberate act in which the accused consciously disregarded the safety of innocent members of the public and which resulted in tragic consequences that were foreseen by him as a possibility. This, I would add, was by the driver of a stolen vehicle being lawfully pursued by the police who had no driver s licence and who, as I have said, had disregarded obvious signs that would have warned any prudent person that an accident was in the making. The accused may not find himself in a similar situation again. The need for prevention may not therefore be as compelling a consideration as in other cases of murder. But when it comes to upholding the interests of society the courts must consider the message sent out to other road users by sentences handed down to reckless drivers who deliberately drive in a manner that imperils others and in so doing kill unsuspecting people. I have already observed that a motor vehicle in reckless hands becomes a weapon no less deadly than those designed for the

6 purpose of killing or maiming. The horrendous injuries suffered by the victims in this case, which I will not dwell on for the sake of those family members present, are eloquent proof of this. There is a further element or dimension of community interest in this matter. The accused himself acknowledged at the outset of the trial that those present at the scene assaulted him before he was formally arrested by the police. While this court in no way approves or condones that action, it does demonstrate the extreme shock, grief and anger those people present felt when they saw what the accused had done. That anger will hopefully have abated somewhat by now. But for the parents of the young children whose lives were tragically terminated the grief will still be there. This is demonstrated by the evidence given in these proceedings of the mothers of two of the children. The loss suffered by the families of these children cannot be made good by any sentence handed down by a court. No parents in the world want to bury their own children. In this case they would not have had to do so had it not been for the reckless and selfish action of the accused. I turn now to the personal circumstances of the accused. I am

7 7 informed from the Bar that he is 30 years of age, unmarried, with three daughters of his own, aged eight, seven and five years. income. He is employed in piece jobs and earns a modest His father is deceased and his mother also does piece jobs. He has two younger brothers. He uses part of his income to support his three children and it is claimed on his behalf that he is an active member of a church. He has passed Grade 11 at school. Modest as that curriculum vitae might, be I cannot extract anything from it which amounts to a strong mitigating circumstance. I have taken into account that the accused pleaded guilty to the theft charge and that he professed remorse when giving evidence in these proceedings. I have also taken into account the fact that he had no direct intention to kill any of the children. The accused s counsel points out, quite correctly, that justice and mercy run together. But mercy must be tempered by the considerations that I have already mentioned in this judgment. Mr Henning for the State has pointed out a number of factors, which I agree with him, are aggravating. The first was that the accused was trying to run away from the police. The second was that he continues his efforts to escape at high speed through an area obviously peopled with young children. The

8 third was that he has a previous conviction, of recent vintage, for car theft. While I appreciate that a previous conviction on a charge of theft is not usually taken into account in an unrelated charge of murder, I nevertheless agree that in this case it forms part of the circumstances that need to be considered to formulate an appropriate sentence. The fact is that the accused repeated in a short period two thefts of motor vehicles. I agree with Mr Henning s submission that he should have known on the second occasion that he would be pursued by police. I have taken note of the fact that the accused has been in custody for just over a year after being arrested in the present matter. Taking all of the above into account, I am of the view that the proper sentence in this matter is the following: The accused is sentenced to 6 (six) years imprisonment on count 1 and to 15 (fifteen) years imprisonment in respect of each of counts 2, 3 and 4. Since each murder count arises from a single act these sentences are to run concurrently. The theft of the vehicle was of course a separate and severable act. However, it was part of the transaction that led to the multiple convictions. I therefore rule that 3 (three) years of the sentence of the

9 9 6 (six) years sentence for theft are to run concurrently with the sentences for the murders. The effective sentence is therefore one of 18 (eighteen) years direct imprisonment JG GROGAN ACTING JUDGE OF THE HIGH COURT