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[2017] ZAWCHC 166
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Smith v S (A44/2017) [2017] ZAWCHC 166; 2019 (1) SACR 500 (WCC) (10 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
Number:
A44/2017
In
the matter between:
ANDRIES
SMITH
Appellant
and
THE
STATE
Respondent
Date
of hearing: 03 March 2017
Date
of judgment: 10 March 2017
JUDGMENT
DOLAMO,
J
INTRODUCTION
[1]
On 21 July 2016
the appellant, who was 27 years old at the time, pleaded guilty to
one count of housebreaking with intent to steal and theft of
two
pieces of cheese and a bar of soap to the value of R52-80. These
items were stolen from a fellow farmworker who caught the
appellant
in
flagrante delicto
in the former’s house. He was convicted on his plea of guilty.
The Regional Court thereafter declared him a habitual criminal
in
terms of section 286 of the Criminal Procedure Act
[1]
(“CPA”). The effect of this declaration is that the
appellant would be detained in prison for at least seven years
but
would be released once he had served 15 years imprisonment. He was
granted leave to appeal the sentence on 2 December 2016.
[2]
Although not married the appellant is the father of four minor
children who were born to and stayed with their different mothers.
He
was raised by his mother alone, his father having left them when he
was young. He has virtually no formal education as he left
school in
Sub B (Grade 2). He has been a farm labourer since 2015 earning
R500-00 per week. He has a string of previous convictions
ranging
from housebreaking with intent to commit theft and theft to theft
simpliciter
. His first offence was committed when he was only
15 years old with the last offence, which led to his declaration as
an habitual
criminal, committed on 15 January 2016. The particulars
of his previous convictions are:
“
2001-07-18
: Theft – on 2001-07-20 – In terms of section 297 (1)(a)
and (e) the imposition of sentencing was postponed
for 5 years. This
sentence was later put into effect.
2001-07-19
: Housebreaking with intent to steal and theft.
2001-07-20
: Housebreaking with intent to steal and theft committed on the
2001-07-19 – 297 (1)(A).
2002-07-
21 : Theft – sentenced on 2002-07-23 to 6 months
imprisonment.
2003-03-07
: Housebreaking with intent to steal and theft. He was
sentenced on 2003-04-07 to 12 months’ imprisonment.
He was
released on 2005-06-17 on the expiration of the sentence.
2003-04-06
: Theft – He was sentenced on 2003-05-31 to 12 months’
imprisonment. It is not clear whether this sentence
was ordered
to run concurrently with the one which was imposed on 2003-04-07.
2005-07-14
: Theft – On 2005-07-18 the court sentenced him to 9 months’
imprisonment. A further 9 months imprisonment
was suspended for 4
years on the usual conditions of suspension.
2006-10-01
: Housebreaking with intent to steal an theft. He was sentenced on
2007-01-15. He was released on parole supervision
on 2009-03-06 until
2010-01-14.
2007-01-15
: Housebreaking with intent to steal an theft as well as the
contravention of section 36 of Act 62 of 1955. He was sentenced
to 3
years imprisonment on each count. The second term of imprisonment was
suspended for 5 years on the usual conditions of suspension.
2011-04-02
: Theft – He was sentenced on 2011-04-08 to 6 months
imprisonment and released on 2011-11-30 on expiration of the
sentence.
2011-04-14
: Housebreaking with intent to steal an theft. He was sentenced to 6
years imprisonment on 2012-05-10.
2012-04-14
: Housebreaking and intent to steal and theft. He was sentenced on
2012-05-10 to 6 years imprisonment and warned of the
provisions of
section 286 of the CPA.
PROCEEDINGS
IN THE REGIONAL COURT
[3]
After convicting the appellant and before commencing with sentencing
the court
a quo
enquired from the appellant, who admitted that he was previously
warned in terms of section 286 of the CPA that he ran the risk
of
being declared a habitual criminal. Secondly, the magistrate
indicated that she intended to go the route of section 286 of the
CPA
and requested the appellant’s legal representative, and the
State, to address her on the circumstances of the previous
convictions. For this reason the matter was postponed to enable his
legal representative to prepare to address the court
a
quo
. On the next appearance
appellant’s legal representative addressed the court
a
quo
on the authorities
applicable to section 286 of the CPA. The legal representative,
however, did not utter a single word on the
circumstances of the
previous offences. The prosecution too did not touch on these
circumstances. Despite this the court
a
quo
commenced its
sentencing judgment by declaring that it has all the necessary
information to determine the type of sentence which
it deemed
appropriate for the appellant.
[4]
After outlining the objectives of sentencing and the factors which a
sentencing court will take into consideration the trial
court stated
that
[2]
:
“
Now
in respect of section 286 the Court is supposed to look at your
personal circumstances. Your attorney repeated them to this
Court,
because I wanted to make sure that what she said on the last occasion
is what she is going to say today. I also wanted to
make sure just to
see if she might add a few more things relating to your personal
circumstances and I’m satisfied with her
address.
It
looks like you have a hard life since you were very young and because
people make choices you chose to follow the criminal way
of life a
way of criminal behaviour.
I
am not sure under what circumstances the previous convictions were
committed but it is clear that they are all almost the same
charges
that of theft and that of housebreaking with the intend to steal and
theft.
”
(
my
emphasis)
[5]
The trial court then went on to state that, if it were to decide that
appellant should be declared a habitual criminal in terms
of section
286, the charge for which he had to be sentenced would not play any
significant role, his previous convictions being
of paramount
consideration; that though the value of the goods stolen would be
taken into consideration emphasis, nevertheless,
would be on
his previous conviction; that it appeared that each time the
appellant was released from prison he would commit
an offence, which
led to him going back to prison; and that his previous convictions
showed that there was no point in time where
he tried to be a
dutiful citizen or refrained from committing offences. The court
a
quo
then concluded that appellant constituted a danger to society
and should be removed for a period of at least 7 to 15 years, and
consistent with this assessment, declared him a habitual criminal.
[6]
The declaration of a person as a habitual criminal was found by the
Constitutional Court in
S
v Niemand
[3]
to serve a useful sentencing purpose. The Constitutional Court
further confirmed the jurisdictional facts which must be present
before a court makes a declaration. It held that the court must be
convinced (i) that the person habitually commits crimes; (ii)
that
detention for at least seven years is the right protection for the
community against him/her; (iii) that he/she is not under
the age of
18 years; and (iv) that the punishment does not warrant that the
accused be sentenced to a term of imprisonment exceeding
15 years
[4]
.
Thus,
section
286 (1) has extended a court’s discretionary powers to include
the competency to impose an additional type of sentence,
namely,
declaration as a habitual criminal
[5]
.
Such competency will arise only where the court is convinced that the
person habitually commits offences and that the community
should be
protected
[6]
. A presiding
officer who declares a person a habitual criminal must not only be
convinced that the accused habitually commits offences
but must also
give cogent reasons which had convinced him/her to come to this
conclusion
[7]
.
[7]
The phrase “
habitually
commits offences
”
is not defined in the CPA and accordingly must bare its ordinary
grammatical meaning
[8]
. The
Concise Oxford English Dictionary
defines
habitual, as an adjective, to mean [something] done constantly or as
a habit (i.e. settled or regular tendency or practice).
The court
must therefore be convinced that the person regularly or has a
tendency to commit offences. It was held in
S
v Makoula
[9]
that the notion of committing crimes habitually implies that the
person concerned has to be a person who has the insight to
distinguish
between right and wrong and the ability to refrain from
wrongdoing. While he is capable of choosing between doing right or
doing
nothing or doing wrong, he makes the habit of doing the
last
[10]
.
[8]
Usually a factor which would decisively convince the court that as
accused habitually committed offences are his/her previous
convictions. This would normally be reflected on the accused’s
SAP 69 form, being an official record of previous convictions.
In
terms of section 271 of the CPA the prosecution may, after conviction
but before sentence has been imposed upon an accused person
produce
to the court for admission or denial by the accused a record of
previous convictions alleged against him. Although this
section makes
it clear that it is the prerogative of the prosecution to provide the
list of an accused’s previous convictions,
recent legislative
measures relating to sentence, such as Act 105 of 1997 (the “Minimum
Sentence Legislation”), make
it imperative for the prosecution
to produce the record of an accused’s previous convictions to
enable the sentencing court
to properly discharge its sentencing
function
[11]
.
[9]
The authorities however, are not
ad
idem
as
to how the evidence of the accused’s previous conviction should
be interrogated to assist the court in deciding whether
the accused
habitually commits offences and should accordingly be declared a
habitual criminal. One school of thought holds the
view that the
court must first try to ascertain the circumstances under which the
previous offences were committed, before declaring
a person to be a
habitual criminal
[12]
. The
other school of thought believes that such an approach, of enquiring
into the circumstances under which each previous offence
was
committed, was impractical as Van Schalkwyk AJ pointed out in
S
v Erasmus
[13]
that:
“
Die
benadering van Kritzinger WnR sou, na my oordeel, ook in baie gevalle
onprakties wees. 'n Veroordeelde mag, bv, 'n lang lys
vorige
veroordelings hê wat oor 'n lang tydperk strek, ten opsigte van
verskillende soorte misdrywe, wat in verskeie plekke
in die land
gepleeg is. Dit sou, in so 'n geval, 'n onbegonne taak wees om die
omstandighede vas te stel waaronder die misdrwye
gepleeg is. Die
voorgestelde ondervraging van die veroordeelde sou ook, in meeste
gevalle, onbevre-digend wees. Uit die aard van
die saak sal die hof
by so 'n ondervraging hom moet verlaat op die onbetwiste relaas van
'n persoon met 'n lang geskiedenis van
misdaad. Die doeltreffendheid
daarvan is dus te betwyfel.”
[14]
[10]
It was also suggested by Murray AJ in a dissenting judgment in
S
v Stenge
[15]
that cases may come before a court where the list of previous
convictions was so long and where it appears that the offences were
committed regularly that no other inference can reasonably be drawn
than that the accused habitually committed offences
[16]
.
In the same matter of
Stenge
Allie J (with whom Hlophe JP concurred) disagreed with the approach
propagated by Murray AJ. The learned Judge was not convinced
that
force of habit is the only reasonable inference that can be drawn
from a long list of frequent previous convictions
[17]
.
The learned Judge further held that the fact of a list of previous
convictions alone does not justify the imposition of an ever
increasing sentence and that it would be more appropriate to enquire
why the person repeatedly committed offences than to assume
that
purely by virtue of their prevalence the offence were being committed
out of habit
[18]
.
[11]
In my view, the Learned Judge in
Stenge
was advocating for an
approach which required holding an enquiring into the circumstances
which led to the commission of the previous
offences. This is an
approach which, in my view, may put a court in a better position to
determine whether section 286 should find
application. To act on the
provisions of section 286, without such an enquiry may, in certain
circumstances, infringe upon an accused’s
right to a fair
trial. The problems envisaged and alluded to by Van Schalkwyk AJ in
the
Erasmus
matter can, to a large extent, be circumvented by
a thorough preparation before applying section 286 of the CPA, which
preparation
may include, but not limited to obtaining copies of the
charge sheets in the matters in which the accused was tried and
convicted
as well as pre-sentencing report by a probation officer. I
am mindful of the fact that this may cause delays in the finalisation
of trials and result in additional expenses in securing these
documents but modern technology and advanced means of communication
would greatly facilitate and expedite this process.
[12]
From the documents obtained as stated
supra
the court can gain useful information on the circumstances under
which the previous offences were committed including the accused’s
personal circumstances. This information can also be supplemented by
the accused. While information by the accused, admittedly,
may not be
the best source, the accused may and should be invited to assist the
Court in interpreting the information gathered
from these
documents
[19]
. In most cases
accused should be able to furnish all the relevant circumstances of
his previous convictions. The court should be
able to verify the
accused’s information from the documents so obtained. After all
it is in the accused’s interest
to assist the court to
determine whether he/she habitually commits offences or whether there
were extra ordinary circumstances
which led him/her to the commission
of the previous offences.
WARNING
THE ACCUSED OF A POSSIBLE DECLARATION
[13]
Although it is not a requirement in terms of section 286 of the CPA
that an accused person should have been previously warned
about the
risk of being declared a habitual criminal before the section is
applied it has become an established practice, and is
indeed prudent,
to warn him/her that on further accumulation of convictions
[20]
he/she runs the risk of being so declared. Is such a previous warning
sufficient to guarantee an accused person’s right to
a fair
trial where he is not again reminded of this risk before he pleads in
the proceedings wherein the implementation of the
provisions of
section 286 of the CPA is contemplated? The ultimate question is
whether the appellant enjoyed a fair trial if he
was not sufficiently
apprised, in good time, of the risk of being declared a habitual
criminal and the severity of the sentence
prescribed by section 286
of the CPA.
[14]
Mr
Ntela
,
who appeared for the State, submitted that a warning in the
proceedings in which a declaration is contemplated would have
resulted
in a disclosure to the presiding officer of the appellant’s
previous convictions before conviction, which is prohibited. This
prohibition is aimed at shielding the accused against the presiding
officer forming a prejudicial view on learning about the accused’s
previous criminal conduct before conviction. According to Mr
Ntela
the previous warning of the appellant by the Magistrates’
Court, Oudtshoorn, on 10 May 2012 was sufficient to warn him of
the
risk he was running in the proceedings in
casu
:
that the record of his previous conviction was available before the
trial commenced and that his legal representative would have
had
access thereto and warned the appellant accordingly. Mr
Klopper,
for the appellant,
suggested a practical solution to the problem. According to Mr
Klopper
the
solution lies in placing the
onus
on the prosecution, once conviction is secured, to prove to the
presiding officer that the accused was warned of the risk of
declaration,
prior to pleading or commencement of the proceedings.
[15]
There is merit in the suggestion by Mr
Klopper
that a duty to inform the accused of the provision of section 286 and
its consequences and to remind him/her of a previous warning,
if
there was any, should rest upon the State. This not an onerous burden
and can be discharged by providing a certificate, alternatively,
any
written proof that the accused’s attention was drawn, first to
the fact that he was previously warned of the risk of
declaration
and, secondly, of the possibility of section 286 being applied and,
lastly, the nature and extend of the sentence it
provides. This
certificate or proof of warning can be produced contemporaneously
with the accused’s SAP69 record. In this
way the court will not
know of the accused’s previous convictions before conviction
while at the same time the accused was
alerted of this risk and
enabled him/her to make an informed decision on his/her course of
action in the trial.
[16]
Warning an accused prior to pleading, that he runs the risk of being
declared a habitual criminal, will enhance his/her right
to a fair
trial. This approach accords with the jurisprudence which has
developed around the interpretation of and application
of the
Criminal Law Amendment Act
[21]
which requires that an accused be warned of the application of the
minimum prescribed sentence, in a particular case, which must
be
imposed unless substantial and compelling circumstances exist
justifying a lesser sentence
[22]
.
The difference lies only in that the warning was section 286 is
applicable would be done by the Public Prosecutors. The presiding
officer would then require proof of this warning before applying the
provisions of section 286. The rational for this warning
is to
afford an accused person the opportunity to make an informed
decision. A declaration in terms of section 286 has the same
effect
as a minimum sentence in that an accused must serve at least a
minimum period of 7 years in person with the possibility
that it may
go up to 15 years. There is no reason why it should stand on a
different footing.
[17]
In my view the appellant would not have enjoyed a fair trial if the
fact that section 286 would be applied was not brought
to his
attention prior to pleading to the charges in the present matter.
Section 286 of the CPA carries a drastic and exceptional
punishment
[23]
and enjoins a
sentencing court to carefully consider an accused’ right to a
fair trial before it is implemented. The
right of an accused to
a fair trial requires, where the state proposes to call for the
application of section 286 or where it is
apparent that the court
would
mero
motu
decide to apply the provision of section 286, to bring to the
attention of the accused the provisions of the section before he
pleads, especially when the record of his previous conviction is
available at that stage. In this way the accused would be
timeously informed, not only of the charge against him but also of
the risk he runs that upon conviction, and after compliance
with the
specified requirements of section 286 of the CPA, he may be declared
a habitual criminal. An accused person will not enjoy
a fair trial if
he is only advised after conviction that he is at risk of being
declared a habitual criminal.
[18]
Whether or not to declare a person a habitual criminal remains a
matter for the discretion of the sentencing court
[24]
.
This discretion, however, must be exercised judicially. Even if the
court is convinced that a person habitually commits crimes
and that
the community ought to be protected, the Court still has a discretion
whether to make the declaration. The power of this
Court to interfere
with the sentence imposed by the trial court is, however,
limited
[25]
. It may only
interfere where the exercise of the trial court’s discretion is
vitiated by misdirection or the sentence imposed
is so inappropriate
as to indicate that the discretion was not properly exercised
[26]
.
A discretion is also not judicially exercised where a court was moved
by irrelevant considerations or ignored relevant circumstances
to
impose a particular sentence.
[19]
From the record it does not appear that the appellant, who clearly is
illiterate, was reminded prior to pleading in the proceedings
in
casu
of the fact that he was previously warned of the possibility of
section 286 being applied and the drastic consequences it held
for
him. The previous warning made on the 10 May 2012, approximately 4
years before he came to be confronted by the consequences
of this
warning, may have faded from the appellant’s memory and was
only reminded thereof after he had pleaded guilty. From
the record it
further appears that his legal representative was not aware of the
warning, hence her request for a postponement
to prepare to address
the court
a quo
on the provisions of section 286. As stated supra when she ultimately
addressed the court she only dealt with the authorities applicable
to
section 286 but did not bring to light the circumstances under which
appellant’s previous offences were committed. The
court
a
quo
was in no better
position: it did not have any information, gathered from any source,
which could assist it to determine whether
the appellant committed
these offences out of habit. It therefore appears that the trial
court declared the appellant a habitual
criminal solely on the basis
of the record of his previous convictions. While the list of previous
convictions can serve as a useful
starting point it will not be
conclusive without any additional information to justify a finding
that these previous offences were
committed out of habit.
[20]
The appellant’s personal circumstances as placed on record by
his legal representative did not reveal much about his
personality to
enable the trial court to conclude that he committed offences out of
habit. As the trial court itself admitted,
it was not sure under
which circumstances were the previous offences committed, which led
to his convictions. The trial court arrived
at the conclusion that
appellant has a tendency to steal and break into people’s homes
and steal from them without sufficient
background information, or a
factual supporting basis. It goes without saying that what followed,
namely the conclusion that society
ought to be protected against the
appellant, was equally reached without adequate information. In this
respect the trial court
committed a material misdirection which
warrants interference with the sentence by this court.
[21]
The appellant’s previous convictions include 5 offences of
housebreaking with intent to steal and theft and 6 of theft.
He
served various forms of sentences. For the first two offences
committed when he was only 15 years old the imposition of sentence
was postponed for 5 years in terms of section 297(1) of the CPA and
the appellant was placed under the care and control of a probation
officer. The sentence was later put into effect on 7 October 2005. By
that time he had already committed 5 other offences and had
been
sentenced to various terms of imprisonment ranging from 6 months
imprisonment, and subsequently, to 6 years imprisonment.
It is
obvious from these sentences that they did not have the desired
effect despite having been increased from short to long term
imprisonment. But this, does not mean that a heavier sentence is
called for in the present matter: the punishment must always fit
the
crime. This principle was restated by Erasmus J (Pillay J concurring)
in
S v
Beja
[27]
who held that:
“
It is trite
that the sentence must always fit the crime and the fact that the
person to be punished has a long list of previous
convictions of
a similar nature, while it may be an important factor, could never
serve to extend the period of sentence so
that it is disproportionate
to the seriousness of the crime for which such a person must be
punished. A period of imprisonment
must always be reasonable in
relation to the seriousness of the offence.
[22]
An appropriate sentence in my view, which will fit the crime and the
offender of appellant’s calibre, is a sentence of
imprisonment
for a period of 3 years. The appeal against a declaration of habitual
criminal and the concomitant sentence in terms
of section 286 of the
CPA must be upheld.
[23]
The order I make is the following:
1. the appeal is upheld.
2. the sentence imposed
by the Regional Court in terms of section 286 of the Criminal
Procedure Act is set aside.
3. the appellant is
sentenced as follows:
“
accused is
sentenced to 3 years imprisonment
”.
4. the sentence is
antedated to 21 July 2016.
___________________
DOLAMO,
J
I
agree.
___________________
SALIE-HLOPHE,
J
[1]
Act 51 of 1977.
[2]
Page 31 lines 10
– 23.
[3]
S v Niemand
2001
(2) SACR 654
[4]
Per Madala J at
paragraph [9].
[5]
See the
dissenting judgment of Murray AJ in the Stenga matter
infra
.
[6]
See S
v
Nawaseb
1980 (1) SA 339
(SWA) at 344h- 345a.
[7]
See
S
v Stenge
2008
(2) SACR 27
[8]
12
th
Edition
[9]
1978 (4) SA 763
(SWA).
[10]
at page 767 G –
H :”
Die
begrip om misdrywe uit gewoonte te pleeg, impliseer dat die
betrokkene 'n persoon moet wees wat oor die insig beskik
om tussen
reg en onreg te onderskei en oor die vermoë om hom van onreg te
weerhou. Terwyl hy dan instaat is om te kies tussen
regdoen of
niksdoen of onregpleeg, maak hy 'n gewoonte daarvan om die laaste te
doen. Die wil word telkens verkeerd ingespan
met miskenning van
ander se regte.”
[11]
See
S
v Nhlapo
2012 (2) SACR 358
(GSJ) where Splig J expressed the view that unless
good reason exists such as to avoid a further remind it was
unacceptable for
the prosecution not to produce to the court the
record of previous convictions for sentencing purposes.
[12]
See
S
v Nawase supra.
[13]
1987
(4) SA 685
(K) at 690 F – I.
[14]
Loosely
translated the Learned Judge said:
“
The
approach adopted by Kritzinger AJ would, in my opinion, in many
cases be impractical. A convicted person may, for example,
have a long list of previous convictions spanning a lengthy period
in respect of different offences committed in various parts
of the
country. It would, in such a case, be an impossible task to
determine the circumstances under which these offences
were
committed. The suggested examination of the convicted person
would also, in most cases, be entirely unsatisfactory.
By its
very nature, such an examination of the convicted person would
result in the Court having to rely on the uncontested version
of a
person with a long criminal history. For this reason, the
effectiveness of such an enquiry is doubtful.”
[15]
at paragraph
[44].
[16]
With due respect
this was made without any attempt to provide guidance as to what
would be considered a long list of previous
convictions to justify
drawing an inferences that the accused was a habitual criminal.
[17]
S v Stenge
supra
at
para [14] and concluded.
[18]
S v Stenga
supra
at para [18].
[19]
i.e. the records
of the previous proceedings.
[20]
See
S
v Smith
2014 (2) SACR 190
(FB) at paragraph [10].
[21]
Act 105 of 1997.
[22]
S v Ndlovu
2004 (2) SACR 70
(W);
S
v Legoa
2013 (1) SACR 13
(SCA);
S
v Shabalala
2006 (1) SACR 328
N;
S
v Makatu
2006 (2) SACR 582 (SCA).
[23]
See
S
v Masis
1996 (1) SACR 147
(O) at 152d.
[24]
See
S
v Van Eck
2003 (2) SACR 563
(SCA) at para [9].
[25]
At para [12].
[26]
At para [12].
[27]
2003 (1) SA 168
(SECLD) at 170 D – E.