S v NDZOLA AND ANOTHER 2016 (1) SACR 320 (WCC)
Juvenile offenders — Sentence — Personal circumstances of accused — Failure by magistrate to obtain pre-sentence report when circumstances called for such and legal representative requesting it — Young offenders sentenced to lengthy term of imprisonment for murder of rival gang member — Immaturity and peer pressure had to be taken into consideration— Sentence reduced on appeal.
The two appellants were convicted in a regional magistrates’ court of murder and were sentenced to 15 years’ imprisonment, of which 3 years’ imprisonment was suspended on certain conditions for 5 years, resulting in an effective term of 12 years’ imprisonment. They appealed against their sentences. It appeared that the murder of the deceased, a 14-year-old boy, was carried out by the appellants as revenge by the appellants for the killing by a rival gang of one of the members of their gang. The appellants were both 17 years of age at the time of the offence and still at school. The first appellant had three previous convictions but the second appellant was a first offender. Despite a request by the legal representative for the second appellant in the court a quo that a pre-sentence report be obtained, the magistrate declined to do so and proceeded to sentence both appellants.
Held, that the magistrate had misdirected himself when he ignored the request for a probation officer’s report. He ought to have requested the report of his own accord after convicting the appellants. In his rush to finalise the matter the magistrate had also lost sight of the fact that, when dealing with juvenile offenders, the court had to exercise its wide sentencing discretion sympathetically and imaginatively, in order to determine a sentence which was suited to the accused in the light of his personal circumstances and the crime of which he stood convicted.
Held, further, that both the appellants were still children at the time of the commission of the offence and their immaturity at the time of the incident and peer-group pressure had to be taken into account.
Held, further, that a sentence of 10 years’ imprisonment in respect of the first appellant and 8 years’ imprisonment in respect of the second appellant would be appropriate in the circumstances. Ordered accordingly.