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[2015] ZAWCHC 185
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Witbooi v S (A416/2015) [2015] ZAWCHC 185 (8 December 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case No: A416/2015
In
the matter between:
DEVRON
WITBOOI
Appellant
and
THE
STATE
Respondent
JUDGMENT
DELIVERED ON 08 DECEMBER 2015
RILEY,
AJ
[1]
The appellant was charged in the regional court sitting at Parow with
contraventions of ss4(1)(f)(iv) and 90, read with
ss1, 103,
117, 119, 120(1)(a) and s121 with column two of Schedule 4 of the
Firearms Control Act No 60 of 2000
, and further read with s250 and
270 of the Criminal Procedure Act, Act 51 of 1977.
[2]
On count 1 the state alleged that on the 31
st
of March 2013 at or near Uitsig, the appellant unlawfully and
intentionally possessed a 9mm Parabellum, calibre Pietro Beretta
92
SB semi-automatic pistol of which the serial number had been erased,
without being the holder of a licence issued in terms of
s17
,
19
or
20
(1)(b) of the
Firearms Control Act.
[3
]
On count 2 the state alleged that on the same date, time and place,
the appellant unlawfully and intentionally had in his possession
12 x
9mm rounds of ammunition.
[4]
The appellant who was represented in the court a
quo
pleaded not guilty to both counts on 11 May 2015 and on 18 May 2015
he was convicted on both counts.
[5]
On 26 May 2015 the appellant was sentenced to ten (10) years
imprisonment on count 1. The court a
quo
suspended two (2) years of the sentence on count 1 on certain
conditions. On count 2 the appellant was sentenced to six (6)
months imprisonment which was ordered to run concurrently with the
sentence imposed on count 1. The appellant was granted
leave to
appeal to this court in respect of sentence only.
[6]
It is trite law that the courts powers to interfere with sentence on
appeal are circumscribed and that a court of appeal will
only do so
if the sentence is vitiated by irregularity, misdirection or if it is
so unreasonable that no reasonable court would
have imposed it.
See
S
v Petkar
1988 (3) SA 751(A)
and
S
v Mtungwa and Another
1992 SACR 1(A).
[7]
The facts upon which the conviction is based, is as follows. On
31 March 2013 W/O Denver Dirks of the Flying Squad of
the SAPS based
at Maitland and Constable Kerwin Engelbrecht who was stationed at
Ravensmead SAPS, were on duty at about 00h50 doing
crime prevention
patrols on Gousblom Road at Uitsig when they observed six (6) male
persons moving in their direction across a
field adjacent to the
local Apostolic Church. They observed the appellant, who was
one of the group, turn around and run
in the direction that the group
had come from. They pursued him on foot and saw that as he was
running, he removed the firearm
from his tracksuit pants and throw it
over the vibracrete wall onto the premises of the Apostolic Church.
[8]
They apprehended the appellant and Engelbrecht then went into the
church premises and found the firearm. The firearm was
identified as a 9mm police issue Parabellum Pietro Beretta,
semi-automatic pistol with a wooden grip. The magazine of the
firearm contained 12 x 9mm rounds of live ammunition. The
appellant was arrested and taken to the Ravensmead SAPS.
On
examination of the firearm, it was established that the serial
numbers of the firearm had been filed off.
[9]
S121
of the
Firearms Control Act provides
that any person convicted
of a contravention of or failure to comply with any section mentioned
in Column 1 of Schedule 4, may
be sentenced to a fine or to
imprisonment for a period not exceeding the period mentioned in
Column 2 of that Schedule opposite
the number of that section. A
maximum penalty of twenty-five (25) years imprisonment is prescribed
for the illegal possession of
a firearm where the serial number or
any other identifying mark has been changed or removed from the
firearm without the written
permission of the Registrar.
[10]
The
purpose of the
Firearms Control Act 60 of 2000
is
inter
alia
to
prevent the proliferation of illegally possessed firearms and to
prevent crime involving the use of firearms. It is well-known
that the unlawful possession of firearms is one of the greatest evils
besetting South African society and that the legislature’s
intention was clearly to spread the net against the unlawful
possession as widely as possible. See
S
v Mnisi
and Another
1996 (1) SACR 496(T)
at 502 b – d. Gun crime
is completely out of control in South Africa. In
S
v Thembalethu
2009 (1) SACR 50
(SCA) the appellant challenged the sentence of
fifteen (15) years imprisonment in respect of the possession of the
unlicensed,
semi-automatic firearm on the basis that the provisions
of
s51(2)(a)
read with
Part II
of Schedule 2 of the
Criminal Law
Amendment Act 105 of 1997
was not applicable. The SCA rejected
the appellant’s arguments and upheld the sentence of fifteen
years imprisonment
imposed on him even though he was a first
offender. In
S
v Madikane
2011
(2) SACR 11
ECG Plasket J considered a substantial number of cases on
sentence for the unlawful possession of automatic firearms (paras 25
– 28) and of semi-automatic pistols (paras 29 -30). In
dealing with an appeal against a sentence of fifteen (15) years
imprisonment imposed upon the appellant in terms of
s51
of the
Criminal Law Amendment Act on
his conviction for the unlawful
possession of a semi-automatic pistol in contravention of
s3
of the
Firearms Control Act 60 of 2000
, the learned judge observed
that he was unable to find any case apart from S v Tembalethu (
supra
)
either prior to or after the operation of the
Criminal Law Amendment
Act 1997
, in which sentence of fifteen (15) years imprisonment was
regarded as appropriate. The learned judge found that ‘
even
if allowance is made for the imposition of more severe sentences for
the offence of the unlawful possession of a firearm that
is automatic
or semi-automatic, as a result of the application of the
Criminal Law
Amendment Act, it
seems to me that a sentence of fifteen (15) years
imprisonment is unlikely to be proportional to the crime. The
criminal
and the legitimate needs of society, in all but the most
serious cases
’.
The sentence of fifteen (15) years imprisonment was set aside and
replaced with a sentence of seven (7) years imprisonment.
In
S
v Khoza
[2011] ZAGPJHC 218 (20 November 2011), however, a sentence of fifteen
(15) years imprisonment was upheld on appeal for possession
of a
semi-automatic firearm where the provisions of
s51(2)(a)
read with
Part II
of Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
was applicable. In
Swart
v S
(A430/13)
[2014] ZAWCHC 113
(4 August 2014) Rodgers J highlights the
gravity of unlawful possession of semi-automatic firearms where he
states at para [41]
that ‘
unlicensed
possession of semi-automatic firearms is a serious matter.
Violent crime involving the use of such weapons has
not diminished
since Tembalethu was decided. I have no doubt that the lawmaker
in requiring a minimum sentence of fifteen
(15) years imprisonment to
be imposed in the absence of substantial and compelling
circumstances, had in mind that generally an
unlicensed weapon of
that kind is possessed for use (whether by the possessor himself or
by one to whom he passes the weapon) in
other serious crimes such as
murder, robbery with aggravating circumstances, hijacking and the
like. Very often the perpetrators
of violent crime are not
apprehended
’.
Our crime statistics indicate that there has been no let-up in the
crime pandemic that engulfs our country. The crime
situation in
our country continues to be alarming. See
S
v Matyityi
2011 (1) SACR 40
(SCA) para 23.
[11]
There
can be no doubt that the introduction of minimum sentence legislation
in respect of the illegal possession of automatic or
semi-automatic
firearms and the enhanced sentencing regime provided for, for a
contravention of
s4(1)(f)(iv)
read with column two of Schedule 4 of
the
Firearms Control Act, is
directly related to the frequency with
which illegal firearms have been used in perpetrating violent
crimes. In relation
to the unlicensed possession of an
automatic firearm, the
Firearms Control Act places
a cap on the
higher sentences which may be imposed and at the same time gives
expression to the legislature’s view of the
severity of the
offence. Considering the approach adopted by the courts in
Tembalethu (
supra
),
Khoza (
supra
)
and Swart (
supra
)
the overwhelming view appears to be that our courts will not hesitate
to impose the sentences as prescribed by the legislature
in cases
relating to the unlawful possession of automatic and semi-automatic
firearms.
[12]
It
was
inter
alia
submitted on behalf of the appellant that the trial court did not
have a proper regard to the rehabilitative element of sentence,
that
the court a
quo
had
erred in not taking into account that the appellant did not commit
any crime with the firearm nor was evidence led that he intended
to
use the firearm to commit an offence. It was further submitted
that although the serial number was removed, there was
no evidence
that the appellant was the individual that removed the serial number.
[13]
On a
consideration of the record I am satisfied that when the trial
magistrate considered sentence, that he took into account the
appellants personal circumstances, the offence of which he was
convicted and the interest of society. See
S
v Zinn
1969 (2) SA 537.
The trial magistrate in addition had regard to
the element of mercy and the appellant’s rehabilitation
prospects.
At the time of sentence the appellant was
twenty-eight (28) years old. He was unmarried with no
children. He had three
siblings. He had advanced to grade
9 at school. During the period 2004 to 2005 he was in employed
with Mario Movers
and in 2006 he worked as a labourer for Richard
Cottle Repairs. At the time of his arrest, he did casual work
as a ‘
sliding
door operator
’
on the taxis. Although he was on bail, it was withdrawn due his
failure to appear in court and because he was arrested
for another
matter he was held in custody, pending the finalisation of the
matter. The appellant had previous convictions
for
housebreaking with intent to steal, theft and for possession of
drugs.
[14]
In
his judgment on sentence the trial magistrate correctly expressed
concern that ‘
this
area is troubled by unlicensed firearms. There are a number of
murders occurring in this area where perpetrators are
not found and
they are using unlicensed firearms. Police are trying their
best to try and trap these type of offences, but
it appears they are
fighting a losing battle
’.
The trial magistrate found as aggravating the fact that:
1.
The
offence was serious and prevalent within the court’s
jurisdiction.
2.
The
firearm had its serial number erased which is indicative of
mischievous use.
3.
That
appellant was not remorseful and that although he had no similar
previous convictions, he was not a first offender.
[15]
It is
clear from his judgment that the trial magistrate did indeed consider
the rehabilitative element of sentence and that he considered
that
the sentence should be blended with a measure of mercy. It
is not unreasonable to conclude that the reason why
the serial number
was filed off, or erased from the firearm was due to the fact that
the firearm must have been acquired in an
illegal manner. It is
a well-known fact that serial numbers are filed off and/or erased
from firearms by criminals so that
the firearms cannot be traced back
to their lawful registered owners and also in an attempt to frustrate
the attempts of the law
enforcement agencies to link or connect the
firearms with the commission of other crimes. In my view it
makes no difference
whether the appellant was responsible for filing
off or erasing the serial number, or whether someone else did so.
The argument
that there was no evidence that he committed an offence
with the firearm, is non sensical. His unlawful possession of
the
firearm constitutes a very serious offence. Fortunately he
was arrested before the firearm was used in a crime.
Considering
the circumstances under which appellant was arrested, it
is not unreasonable to conclude that he was in possession of this
firearm
for nefarious purposes. The submissions made on behalf
of the appellant must therefore be dismissed.
[16]
In
the present matter the appellant denied that he possessed the
firearm. His denial was correctly rejected as false.
Accordingly there is no evidence before us as to how the appellant
came to be in possession of the firearm and why he had it in
his
possession at the time that he was apprehended. No mitigating
circumstances can therefore be inferred in relation to
his possession
of the firearm nor are there factors or circumstances to place his
unlawful possession in a less serious light.
It is so that it
is incumbent upon the court in every case, before it imposes a
prescribed sentence, whether it be maximum or minimum,
to assess upon
a consideration of all the circumstances of the particular case,
whether the prescribed sentence is proportional
to the particular
offence. Although the trial magistrate did not impose the
maximum sentence in the present matter, it is
necessary to emphasise
that in matters such as the present, offenders must accept that
courts will impose the maximum prescribed
sentence unless there are
truly convincing reasons why they should be departed from. In
crimes like the present, punishment
and deterrence are factors that
stand out in determining an appropriate sentence.
[17]
I am
satisfied that in his well-motivated and balanced judgment, the trial
magistrate properly took into account all the relevant
factors that
he was required to, in arriving at the sentence that he imposed.
The fact that the sentence may at first glance
appear to be on the
steep side does not mean that we are entitled to interfere, or that
the trial magistrate misdirected himself
by not exercising his
sentencing discretion properly. In any event I am further not
persuaded that the sentence is unduly
harsh or startlingly
inappropriate nor does it induce a sense of shock.
[18
]
In
the result the appeal against sentence must fail.
[19]
I
therefore propose the following order:
The
appeal against sentence is dismissed.
__________________
RILEY,
AJ
I
agree and it is so ordered.
__________________
DOLAMO,
J