Mr Tankiso Moeketsi (the “accused”), in this criminal trial faced a charge of murder in that on or about 04 November 2017, and at or near the district of Ehkuruleni Central, he unlawfully and intentionally killed his brother (the “deceased”), by stabbing him with knives and hitting him with a spade.
The accused and the deceased on the day in question, and at their family home had a heated argument which led to the altercation. At the time of the incident the accused was to an extent inebriated.
|The accused entered into a plea and sentence agreement with the state in terms of Section 105A of the Criminal Procedure Act 51, 1977 (the “Act”). This section of the Act serves to expedite matters in order to decongest or reduce the court rolls without sacrificing the demands of justice and/or the public interest.
The purpose of the section is achieved by the provision of a formal plea-bargaining process which calls for the court to engage in an exercise of three phases of judicial scrutiny, namely:
(a) verification before plea,
(b) scrutiny of the plea agreement; and
(c) scrutiny of the sentence agreement.
In achieving the above the court first considered the background of the matter and the allegations made by the state in the indictment. It also considered that the accused had concluded an agreement with the state in terms of which he would plead guilty to the offence as per the charge and accept a just sentence for such offence.
The court proceeded to scrutinise the plea agreement to ensure that all legal formalities as in terms of the Act were complied with. It found that all formalities were met, being inter alia that:
1) the agreement was written and signed by all required parties,
2) it was concluded between the accused and the state,
3) the agreement contained a full written explanation of the accused’s plea of guilty,
4) counsel for the state had the requisite authority to enter into the agreement,
5) the investigating officer and the deceased’s family were consulted beforehand,
6) the accused was fully advised of his rights in terms of section 105A before entering into the agreement; and
7) he did so of his free will and volition, while in his sound and sober senses and without there being any undue influence exerted upon him.
The accused confirmed his admissions, the agreement and the terms thereof. Being satisfied that the legal formalities had been met, the court allowed the accused to formally plead to the charge of murder and the agreement was admitted into record as an exhibit. The court was also satisfied that the accused admitted to all the allegations in the indictment and to the essential elements of the offence of murder.
The proposed sentence was that of 10 (ten) years imprisonment and for the accused to be declared unfit to possess a firearm as in terms of section 103 (1) (g) of the Firearms Control Act 60, 2000.
The court considered whether this proposed sentence was “just”. Since the offence with which the accused was charged attracted a minimum prescribed sentence in terms of the Criminal Law Amendment Act 105,1997 (by being an offence listed in part I of schedule 2 – murder). The court also had to consider whether there were substantial and compelling circumstances which justified deviation from the prescribed minimum sentence as set out in section 51 (3) (a) of Act 105, 1997. This section provides as follows:
51 (3) (a) – if any court referred to in subsection (1) or (2)is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence than the sentence prescribed in those subsections. It shall enter those circumstances on the record of the proceedings and may thereupon impose such lesser sentence.
The court observed that (as envisaged by the legislature) to determine whether the proposed sentence was “just”, it had to exercise its discretion and conduct a balancing exercise wherein it balanced the interests of society and those of the victims against the personal circumstances of the accused. In doing so the court had to consider the facts and circumstances of the matter. The court only needed to find that the sentence proposed was appropriate, not most appropriate.
With the above in mind the court considered whether the proposed sentence was appropriate in respect of the accused and his family members bearing in mind the seriousness of the offence.
|In considering his personal circumstances the court observed inter alia that: the accused is a father to a 6-year-old child,he was employed,he was the only bread winner in his family, supporting his mother, the deceased and the deceased’s minor children,he pleaded guilty and did not waste the court’s time,he showed remorse; andhe had acted in the heat of the moment while intoxicated during a once-off family tragedy,he spent 10 months awaiting trial; andhe undertook to undergo drug and alcohol rehabilitation.
The court also considered that he had a previous conviction of common assault and that the current offence was a serious offence for which the interests of society require severe punishment for offenders.
In light of the principles laid down in S v Malgas 2001 (2) SA 1222 SCA, S v Thebus & another 2002 (2) SACR 556 (SCA), the court considered the list factors submitted by the state and the defence to decide whether it could impose a lesser sentence than the one prescribed. These consisted of his mitigating personal circumstances, listed above, with the addition of one other factor: –
|that the accused’s mother, also the mother of the deceased, pleaded for a lenient sentence. She expressed that she had lost one son to the incident. She did not wish to lose the second to a long sentence.|
The court found the sentence proposed in terms of the plea agreement to be just and so imposed same.
Written by Phathu Ratshitanga and Dingumuzi Ndhlovu