S v Pillay

• Jurisdiction: South Africa
• Judgment Date: 07 May 2018
• Citation: 2018 (2) SACR 192 (KZD)

S v Pillay
2018 (2) SACR 192 (KZD)

2018 (2) SACR p192

Citation	2018 (2) SACR 192 (KZD)
Case No	CCD 48/17
Court	KwaZulu-Natal Local Division, Durban
Judge	Henriques J
Heard	April 24, 2018
Judgment	May 7, 2018
Counsel	Adv Mkhumbuzi for the accused.; Adv Singh for the state.

Flynote : Sleutelwoorde

Murder B — Sentence — Mitigating factors — Crime not premeditated or planned — Accused acting with diminished responsibility after break-up of relationship — Genuine remorse shown and accused pleading guilty from outset — Sentence of 20 years' imprisonment imposed.

Sentence C — Imprisonment — Cumulative effect of — Order that sentences should run concurrently — When appropriate — Accused convicted of murder and unlawful possession of firearm used to commit murder — Unlawful possession of firearm antedated murder by long period — No reason for sentences to run concurrently.

Headnote : Kopnota

The D accused, a 32-year-old unmarried man and first offender, pleaded guilty to the murder of a woman with whom he had had a relationship — it had recently been terminated by the deceased. He also pleaded guilty to contravening s 3 of the Firearms Control Act 60 of 2000 read with s 51, part I of sch 2 to the Criminal Law Amendment Act 105 of 1997, in that he had been in possession of a semi-automatic pistol whose serial number had been removed. On the day of the murder, the accused, after E having obtained the whereabouts of the deceased through a vehicle-tracking company, went to her workplace where he waited for her for 23 minutes. When the deceased emerged from the building, he went to the outside staircase of the building, called up to her and, when she started running back up the stairs, shot at her from below. The deceased fell from the building, incurring severe injuries, and died approximately 10 minutes later. F The accused dropped the gun and went to the police station to hand himself over. It appeared that he had obtained the firearm after having been attacked and robbed whilst on duty repairing a taxi. As to sentence,

Held, that there was nothing on the facts to indicate that in the time preceding the shooting the accused had formed an intention or plan to kill the deceased, and nothing to suggest that he deliberately armed himself with the firearm G and went to her workplace with the sole intention of killing her. His actions, although deadly and tragic, could not change what appeared to be a spur-of-the-moment act, of a man in an emotional rage, into a planned and premeditated murder. (See [39].)

Held, further, that, whilst acknowledging the circumstances under which the deceased met her untimely death, on the facts of the matter substantial and H compelling circumstances existed, warranting a deviation from the prescribed minimum sentence. The accused had displayed genuine remorse and had articulated an intention to plead guilty from the time of his arrest, and had acted at the time with diminished responsibility. (See [42] – [43].)

Held, in respect of the firearm offence, that it carried a sentence of seven years' imprisonment, and, given that the accused had possessed the firearm for a I considerable period of time prior to the incident, and although used in the commission of the offence in count 1, the sentence imposed in respect of the firearm count had to take those facts into consideration as well. There was no reason to order the sentences to run concurrently. (See [44] – [49].) The accused was sentenced to 20 years' imprisonment in respect of the murder count and to five years' imprisonment in respect of the unlawful J possession of the firearm.

2018 (2) SACR p193

Cases cited

R v Karg 1961 (1) SA 231 (A): considered A

S v Jantjies 2014 JDR 2004 (SCA): referred to

S v Kruger 2012 (1) SACR 369 (SCA) ([2011] ZASCA 219): dictum in para [11] applied

S v Madikane 2011 (2) SACR 11 (ECG): compared B

S v Magano 2013 JDR 2733 (SCA): referred to

S v Makwanyane and Another 1995 (2) SACR 1 (CC) (1995 (3) SA 391; 1995 (6) BCLR 665; [1995] ZACC 3): dictum in paras [88] – [89] applied

S v Malgas 2001 (1) SACR 469 (SCA) (2001 (2) SA 1222; [2001] 3 All SA 220; [2001] ZASCA 30): applied

S v Mashao 2015 JDR 2263 (GJ): referred to C

S v Mathe 2014 (2) SACR 298 (KZD): followed

S v Matyityi 2011 (1) SACR 40 (SCA) ([2010] 2 All SA 424; [2010] ZASCA 127): referred to

S v Mhlakaza and Another 1997 (1) SACR 515 (SCA) ([1997] 2 All SA 185; [1997] ZASCA 7): dictum at 518f – g applied

S v Mudau ([2014] ZASCA 43): referred to D

S v Mvamvu 2005 (1) SACR 54 (SCA) ([2005] 1 All SA 435): dictum in para [13] applied

S v Raath 2009 (2) SACR 46 (C): followed

S v Rabie 1975 (4) SA 855 (A): dictum at 862G – H applied

S v Scott-Crossley 2008 (1) SACR 223 (SCA): dictum in para [35] applied E

S v Vilakazi 2009 (1) SACR 552 (SCA) (2012 (6) SA 353; [2008] 4 All SA 396; [2008] ZASCA 87): applied

S v Zinn 1969 (2) SA 537 (A): applied.

Legislation cited

Statutes

The Criminal Law Amendment Act 105 of 1997, s 51(2), part II, sch 2: see F Juta's Statutes of South Africa 2016/17 vol 1 at 2-516 and 2-519 to 2-520.

The Firearms Control Act 60 of 2000, s 3: see Juta's Statutes of South Africa 2016/17 vol 1 at 3-16.

Case Information

Adv Mkhumbuzi for the accused.

Adv Singh for the state. G

A criminal trial in the High Court on charges of murder and the unlawful possession of a firearm in contravention of s 3 of the Firearms Control Act 60 of 2000.

Order H

1.

Count 1: Murder read with s 51(1) and part I of sch 2 to the Criminal Law Amendment Act 105 of 1997: the accused is sentenced to 20 years' imprisonment.

2.

Count 2: Possession of a firearm in contravention of s 3 of the Firearms Control Act 60 of 2000, read with s 51(2) and part II of I sch 2 to the Criminal Law Amendment Act 105 of 1997: the accused is sentenced to five years' imprisonment.

3.

The accused is thus sentenced to an effective 25 years' imprisonment.

4.

The accused is declared unfit to be licensed for a firearm in terms of the provisions of the Firearms Control Act 60 of 2000. J

2018 (2) SACR p194

Judgment

Henriques J: A

Introduction

[1] Violence by men towards women is endemic in this country. South Africa's femicide rate is five times higher than the global average. It is the B duty of courts to impose harsh sentences to recognise the seriousness of the situation.

[2] The accused was convicted of the murder of Annelene Pillay (the deceased), committed under circumstances contemplated in s 51, part I of sch 2 to the Criminal Law Amendment Act 105 of 1997 (the CLAA), in that the state alleged the offence was planned or premeditated C (count 1), and possession of a firearm in contravention of s 3 of the Firearms Control Act 60 of 2000 read with s 51, part II of sch 2 to the CLAA (count 2).

[3] Imposing sentence is one of the most difficult tasks which a presiding officer has to grapple with. It has been described as a 'painfully difficult D problem' and it involves a careful and dispassionate consideration of all factors.

[4] The court must consider the factors referred to in S v Zinn, [1] being the interests of society, the personal circumstances of the accused and the nature of the offences that have been committed. The court must also E consider the recognised objectives of sentencing, being prevention, rehabilitation, deterrence and retribution.

[5] The seriousness of the offences, the circumstances under which they were committed, and the victim are also relevant factors in respect of the last element of the triad. The personal circumstances of the accused, F including his age, education, dependants, his previous convictions (if any), his employment and other relevant conduct or activities, call for consideration in respect of the second element. An appropriate sentence should also have regard to or serve the interests of society, as the first element of the Zinn triad, which is the protection of society's needs, and the deterrence of would-be criminals.

Issue G

[6] The issue which concerns this court is whether to impose the prescribed minimum sentences of life imprisonment in respect of count 1, and 15 years' imprisonment in respect of count 2, or whether to H deviate from such sentences.

Criminal Law Amendment Act 105 of 1997

[7] The minimum sentences have been ordained to be the sentences that must ordinarily be imposed, unless the court finds substantial and I compelling circumstances which justify a departure therefrom. [2] In addition, the Supreme Court of Appeal has indicated that the minimum

2018 (2) SACR p195

Henriques J

sentences must not be departed from for 'flimsy reasons' and are the A starting point when imposing sentence.

[8] In terms of S v Malgas, [3] in the event of substantial and compelling circumstances not existing, then a sentencing court is entitled to depart from imposing the prescribed minimum sentences, if it is of the view, that, having regard to the nature of the offence, the personal circumstances B of the accused, and the interests of society, it would be disproportionate and unjust to do so. This is often referred to as the proportionality test.

What are substantial and compelling circumstances? C

[9] When sentencing an accused person, a court has to evaluate all the evidence, including the mitigating and aggravating factors, to decide whether substantial and compelling circumstances exist. A court must be conscious of the fact that the legislature has ordained a particular sentence for such an offence, and there must be truly convincing reasons to depart therefrom, which reasons must be stipulated on the record. D

[10] It is for this reason that courts have not attempted to define what is meant by substantial and compelling circumstances. This is in keeping with the principle that the...