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[2018] ZAWCHC 161
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Davids v S (A154/2018) [2018] ZAWCHC 161; 2019 (1) SACR 257 (WCC) (27 November 2018)
IN THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE NO: A154 / 2018
[REPORTABLE]
In
the matter between:
JUNIEL
DAVIDS
Appellant
and
THE
STATE
Respondent
Coram:
WILLE, J et SLINGERS, AJ
Date
of Hearing: 23rd November 2018
Date
of Judgment: 27th November 2018
JUDGMENT
Wille,
J et Slingers, AJ;
[1]
Initially, this matter came before us by way of a petition against
sentence only.
[1]
This is an
extra-ordinary matter, involving “seemingly” a diluted
set of facts, a strange conviction, coupled with
two curious
sentences. On the 14th of February 2018, after consideration of the
petition against the sentences imposed, we granted
an order for leave
to the petitioner to pursue his appeal against both his conviction
and his sentences.
[2]
[2]
It is this order
[3]
that
deserves further attention and scrutiny, specifically within the
legislative context that caters for the implementation of
the minimum
sentence provisions in respect of certain specified serious
offences.
[4]
We formed the view
that the sentences imposed by the court a quo were
[5]
,
as a matter of law, inextricably linked to the offence upon which the
appellant was convicted. We held (albeit on petition), that
in these
special circumstances, leave fell to be granted against both the
conviction and the sentences imposed. These proceedings
are
accordingly, in respect of an appeal against both the conviction and
the sentences emanating from the Regional Court, in Cape
Town.
[3]
The appellant was charged with and convicted on a single count of
Housebreaking with Intent to Rob and Steal
[6]
,
and was sentenced as follows:
Op die aanklag van
Huisbraak met die Opset om te Roof
“
Ses (6) jaar
gevangenisstraf”
Op die aanklag van Roof
met Verswarende Omstandighede
“
Ingevolge Artikel
51(2)(a)(i) Wet 105 van 1977, Vyftien (15) jaar gevangenisstraf”
[4]
The appellant was legally represented in the court a quo and tendered
a plea of guilty to the charge as preferred by the respondent.
A
statement in terms of section 112(2)
[7]
was offered up on behalf of the appellant and recorded the following:
“
I the undersigned,
Juniel Davids, declares herewith and states as follows:
1.
I am an adult male and the accused in this matter.
2. I make this statement
freely and voluntarily, and without any undue influence thereto.
I understand my right to remain
silent and hereby waive such right
while being of sound and sober mind.
3.
I am aware of the chargers contained in the charge sheet, I am
familiar with the contents thereof and I understand the chargers
against me.
4.
I admit
that I plead guilty to one count of housebreaking with the intention
to rob and robbery with aggravating circumstances
[8]
.
5.
On the 12
th
of February 2017, I was at 12 Union Street,
Gardens, which is in the Regional Division of the Western Cape.
6.
On the said
occasion I was walking pass the aforementioned building when I
noticed that a window on the second floor balcony was
open. I
then proceeded to climb up onto the balcony and opened the window
wider so that I could enter into the aforementioned
property. I
entered into the main bedroom where I took a cell phone and watch as
I was still busy the complainant jumped
up and screamed and I
immediately fled and as I did so I pushed
[9]
the complainant off her feet as I ran out of the property. Shortly
thereafter I was apprehended and arrested.
7.
It was my intention to act in the said manner and in doing so I
wanted to enter the property unlawfully and deprive the complainant
now known to me as Lauren Cartwright, permanently of her cell phone
and watch.
8.
I knew that my actions were unlawful and therefore punishable by law.
9.
I admit that I had no right, permission or lawful reason to act in
that manner.
10.
While at the time I was under the influence of intoxicating
substances such as methamphetamine commonly known as tik, I still
knew the differences between right and wrong.
11.
My legal representative has explained the consequences of making such
a statement and notwithstanding that I still want to make
this
statement”
[5]
This plea
[10]
was accepted by
both the respondent and the court a quo and was consequently received
into evidence as exhibit “A”.
In
his notice of appeal (as amended), the appellant, inter alia, submits
that he did not admit to all the elements of the crime
of “Robbery
with Aggravating Circumstances” and that based on the accepted
content of the statement offered up
[11]
,
his conviction was wrong in law.
[6]
In terms of section 1 of the Criminal Procedure Act
[12]
,
aggravating circumstances are defined for the purposes of robbery,
as:
(i)
the wielding of a fire-arm or any other
dangerous weapon;
(ii)
the infliction of grievous bodily harm;
or
(iii)
a threat to inflict grievous bodily harm
[7]
The definition of “aggravating circumstances” do not
pertain to the definition of robbery. Rather, the definition
of
“aggravating circumstances” are relevant to the sentence
that may be imposed and not whether the robbery took place.
[13]
Aggravating circumstances are facts that objectively exist.
[14]
In this case, the objective fact is that the appellant pushed the
complainant off her feet when he fled the premises so as to
facilitate his escape. The question that arises is whether this
suffices to constitute aggravating circumstances, as legislatively
defined.
[8]
The respondent submits
[15]
that the “aggravating circumstances” is that portion in
terms of which the complainant was “pushed down the stairs”.
This, does not appear from the facts set out in the plea accepted by
the court a quo and the respondent and on which the appellant
was
convicted. The accepted facts are that:
“
I
pushed the complainant off her feet as I ran out of the property”
[9]
It is common cause on the facts of the pleaded and accepted stated
case, that:
(i)
the appellant did not wield a fire-arm
or any other dangerous weapon;
(ii)
the appellant did not threaten to
inflict grievous bodily harm to the complainant, Lauren Cartwright;
and
(iii)
the complainant had not suffered any
grievous bodily harm.
[10]
Consequently, it follows that the act of pushing the complaint off
her feet does not objectively establish “aggravating
circumstances” as defined in section 1(1)(b) of the Criminal
Procedure Act, Act 51 of 1977.
[11]
In dealing with the appellant during the sentencing proceedings the
court a quo makes the positive statement that the appellant
was found
guilty and convicted of two distinct offences.
[16]
This is a serious misdirection and this misdirection is regrettably
perpetuated when the sentences are imposed upon the appellant.
A
single charge of housebreaking with intent to rob and robbery with
aggravating circumstances as intended in section 1 of Act
51 of 1977
was put to the appellant.
[17]
The appellant pleaded guilty thereto
[18]
and was consequently convicted of a single offence.
[19]
[12]
In sentencing the appellant, the court a quo, took the two components
of the single charge and imposed a sentence in respect
of both
components. This is evident from the following excerpt:
“
Ek
het the applicant skuldig bevind of een aanklag wat bestaan uit twee
komponente naamlik huisbraak met die opset om te roof en
roof met
verswarende omstandigheded en ek het die vonnis opgelê ten
opsigte van hierdie komponente”
[20]
[13]
Both components of the offence arose from a single incident. By
imposing sentences in respect of both components of a single
offence,
this had the unfair result of a duplication of the punishment imposed
upon the appellant.
[21]
[14]
In considering the petition on sentence, we considered, inter alia,
the
legislative
framework as set out as follows:
[22]
“
(
1)(a)
Subject to section 84 of the Child Justice Act, 2008 (Act 75 of
2008), any person convicted of any offence by any lower court
(including a person discharged after conviction) may, subject to
leave to appeal being granted in terms of section 309B or 309C,
appeal against such conviction and against any resultant sentence or
order to the High Court having jurisdiction”;
and
“
(1)
Subject to section 15(1), the Constitution and any other law–
(b)
an appeal against any decision of a Division on appeal to it, lies to
the Supreme Court of Appeal upon special leave having
been granted by
the Supreme Court of Appeal”
[23]
;
[15]
The issue of whether a Supreme Court of Appeal is vested with the
appropriate jurisdiction to entertain the appeal on the merits
[24]
under the circumstances similar to this matter was considered in
Dipholo
.
[25]
The
appellant in this instance, had been granted special leave after his
application for leave to appeal by way of petition had
been refused
and no appeal on the merits had been adjudicated in the High Court.
In our view, the ultimate test for a High Court
to adopt on
petition
[26]
, is whether or
not, there are reasonable prospects of success in the envisaged
appeal.
[16]
Section 309C (8)
[27]
also
specifically provides as follows:
“
(8)
All applications contained in a petition must be disposed of –
(a) as far as possible,
simultaneously: and
(b) as a matter of
urgency, where the accused was sentenced to any form of imprisonment
that was not wholly suspended”
[17]
Further, in our view, this is particularly significant where the
sentence imposed upon the petitioner is inextricably linked
to the
petitioner’s conviction
[28]
,
the court
[29]
, in such
circumstances, is enjoined to deal with the “merits” of
the petition.
In
discharging our judicial duties, we have a constitutional obligation
to do so in accordance with the principles, purport and
objective of
the Constitution. Sections 173, 35(3)(o) and 12(1)(a) are relevant to
the case at hand and have informed our approach
to the matter.
[18]
In accordance with the provisions of section 173 of the Constitution,
Higher Courts are prescribed to take into account the
interests of
justice when developing the common law and in exercising their
inherent powers to protect and regulate their own process.
[19]
Furthermore, in terms of section 35(3)(o) of the Constitution, the
right to a fair trial includes the right to an appeal or
to a review
by a Higher Court. Section 12(1)(a) of the Constitution guarantees
the right not the be deprived of freedom when that
deprivation is
either arbitrary or without just cause.
[20]
In the present matter the sentences imposed are intrinsically linked
to the conviction
[30]
[21]
If the appellant’s conviction of robbery with aggravating
circumstances is allowed to stand, it would follow that the
provisions of
section 51(2)(a)(i)
of the
Criminal Law Amendment Act
105 of 1997
, would be applicable and the minimum sentence of fifteen
(15) years’ imprisonment would have to be imposed, unless the
appellant
showed substantial an compelling circumstances why it
should not be imposed.
[31]
Thus, even if the petition against sentence was successful, without
granting leave to appeal against the conviction, the starting
point
for imposing an appropriate sentence would be the 15 years
imprisonment with the appellant bearing the onus to show compelling
and substantial reasons why the 15 years prison sentence should not
be imposed. This position is untenable.
[22]
In this matter no objective facts establishing aggravating
circumstances during the robbery were presented. Therefore, a
conviction
in respect of robbery with aggravating circumstances could
not be sustained. It would be a breach of our judicial office and
constitutional
duty, especially in respect of the constitutional
right set out in
section 12(1)(a)
, to
consider
the sentence of the petitioner in a vacuum, especially in
circumstances where the sentence is inextricably linked to a
conviction, which appear on the fact of it to be, erroneous or
irregular. We are not expected to indulge in an exercise of “legal
gymnastics” to consider and pronounce upon a sentence on
appeal, in isolation, in circumstances where the underlying basis
for
the sentence, namely the conviction, may be suspect. The SCA,
[32]
in AD v The State
[33]
called
for:
“
thought
to be given to legislative reform so that petitions can be finalized
speedily at the High Court level”
[23].
In S v Bogaards
[34]
, the
Constitutional Court held that an appellate court’s power to
interfere with sentences imposed by lower courts is as
follows:
“
It
can only do so where there has been an irregularity that results in a
failure of justice; the court below misdirected itself
to such an
extent that its decision on sentence is vitiated; or the sentence is
so disproportionate or shocking that no reasonable
court could have
imposed it”
[24]
In Van Wyk and Galela
[35]
, it
was held that a Court of Appeal may interfere with sentences imposed
by a trial court only where the degree of disparity between
the
sentence imposed by the trial court and the sentence this court would
have imposed, was such that interference was competent
and required.
We are of the view that this is a case where there is a sufficient
degree of disparity between the sentence imposed
and what this court
would have imposed to justify interference. When regard is had to all
the facts of the present case, the sentence
of fifteen (15) years’
imprisonment, plus a further six (6) years’ imprisonment is so
disproportionate and shocking
that no reasonable court would have
imposed it.
[25]
What is of significance is the manner in which the court a quo
sentenced the appellant for two offences, after having convicted
him
only on a single offence and thereafter, applied the minimum sentence
provisions when imposing sentence, in addition to the
sentence
imposed in respect of the “additional” offence. In the
end, one is left in the dark about what the trial court’s
opinion was with regard to the actual offence to which the guilty
plea was tendered and accepted.
[26]
It follows that the appeal against conviction and sentence must
succeed. In the result the following order is made:
1.
The
appeal in connection with both the conviction and sentences is
upheld.
2.
The
conviction and sentences of the court a quo are set aside and are
substituted with the following:
“
The
appellant is convicted of Housebreaking with Intent to Rob and
Robbery and is sentenced to six (6) years imprisonment to run
with
effect from the 15
th
of November 2017”
______________________
WILLE,
J
I agree,
_______________________
SLINGERS,
AJ
Counsel for Appellant:
Advocate Botman
Counsel for Respondent:
Advocate Mabilietse
[1]
The
appellant filed a petition in terms of
section 309
(C) as against
his sentence only
[2]
The
order
[3]
Granting
leave to appeal against both conviction and sentence
[4]
Act
105 of 1997
[5]
In
these particular circumstances
[6]
With aggravating circumstances as intended in terms of section (1)
of Act 51 of 1977
[7]
In
terms of Act 51 of 1977
[8]
The
following words “with aggravating circumstances” were
inserted via a handwritten amendment which amendment was
signed by
the appellant. Annexure “A”, page 39 of the
record.
[9]
By
way of a handwritten amendment duly signed by the appellant, the
word “bumped” was substituted with the word “pushed”.
[10]
As
tendered by the appellant
[11]
In
terms of section 112 (2) of Act 51 of 1977
[12]
Act
51 of 1977
[13]
Minister
of Justice and Constitutional Development and Another v Masinggili
(CCT 44/13)
[2013] ZACC 41
[14]
Minister
of Justice and Constitutional Development and Another v Masinggili
(CCT 44/13) [2013] ZACC 41
[15]
In
the Heads of Argument
[16]
Line
22, page 20 of the record.
[17]
Annexure
“A”, page 3 of the record.
[18]
Line
10, page 3 of the record.
[19]
Lines
21-24, page 5 of the record.
[20]
Lines
11-19, page 34 of the record.
[21]
Maseti
v S (353/13) [2013] ZASCA160 (25 November 2013)
[22]
Section
309(1)(a) of the Criminal Procedure Act
[23]
Section
16(1)(b) of the Superior Courts Act
[24]
In
connection with a conviction
[25]
Dipholo
v S [2015] ZASCA 120
[26]
In
connection with the merits of the conviction and/or the sentence
[27]
The
Criminal Procedure Act
[28]
Section
51(2)(a)(i)
of the
Criminal Law Amendment Act, Act
105 of 1997 which
reads as follows:
Notwithstanding
any other law but subject to subsections (3) and (6), a regional
court or a High Court shall sentence a person
who has been convicted
of an offence referred to in-
(a)
Part
II
of Schedule 2, in the case of-
(i)
a first offender, to imprisonment for a period not less than 15
years
[29]
The
High Court
[30]
The
minimum sentence provisions only find application following a
conviction of robbery with aggravating circumstances.
[31]
Section
51(3)(a)
of Act 105 of 1997.
[32]
The
Supreme Court of Appeal (previously the Appellate Division)
[33]
(334/2011)
[2011] ZASCA 215
[34]
2013
(1) SACR 1 (CC)
[35]
Van
Wyk v S and Galela v S
2015 (1) SACR 584
(SCA)