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[2021] ZAWCHC 88
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Van Schalkwyk v S (A145/2020) [2021] ZAWCHC 88 (6 May 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Lower
Court Case No: SH3/151/2017
Appeal
Case No. A145/2020
In
the matter
between:
NOLAN
VAN SCHALKWYK
Appellant
and
THE
STATE
Respondent
JUDGMENT
DELIVERED: 6 MAY 2021
LE ROUX AJ
[1]
The appellant in this
case, a man, at the time 31 years of age, was convicted by the
regional magistrate, of attempted robbery with
aggravating
circumstances and sentenced to ten (10) years imprisonment. His
application for leave to appeal to the Bellville regional
court
failed. He then petitioned to this court for leave to appeal against
both his conviction and sentence and was granted leave
to appeal
against
sentence only.
[2]
Accordingly, he now
appeals against his sentence to this court. The question that thus
remains to be decided is whether the trial
court exercised its
discretion judicially and properly and whether the sentence should
accordingly be decreased.
[3]
In
S
v Rabie
[1]
the principles applicable in an appeal against sentence is set out by
Holmes JA as follows:
“
1.
In every appeal against sentence, whether imposed by a magistrate or
a Judge, the Court hearing the appeal-
(a)
should be guided
by the principle that punishment is “pre-eminently a matter for
the discretion of the trial Court”;
and
(b)
should be
careful not to erode such discretion: hence the further principle
that the sentence should only be altered if the discretion
has not
been “judicially and properly exercised
2. The test under
(b) is whether the sentence is vitiated by irregularity or
misdirection or is disturbingly inappropriate.”
[4]
In
S
v Anderson
[2]
in
dealing with the applicable legal principles to guide the court when
asked to alter a sentence imposed by the trial court,
Rumpff JA
stated it as
follows
“
These
include the following: the sentence will not be altered unless it is
held that no reasonable man ought to have imposed such
a sentence, or
that the sentence is out of all proportion to the gravity or
magnitude of the offence, or that the sentence induces
a sense of
shock or outrage, or that the sentence is grossly excessive or
inadequate, or that there was an improper exercise of
his discretion
by the trial Judge, or that the interest of justice requires it. Some
of the cases in which these principles are
mentioned are referred to
in the judgment of Selke, J., in Rex v Zulu and Others, 1951(1) SA
489 (N) at p.490.
A
Court that interferes with a sentence imposed by a lower court,
itself exercises a discretion when it imposes a new sentence and
there cannot, therefore, be a ready-made test in the strict sense of
the word. Nor is it advisable to attempt to lay down a general
rule
as to when the Court’s discretion to alter a sentence will be
exercised, see Rex v Sandig,
1937 A.D. 296
and Rex v Ramanka, 1949(1)
S.A. 417 (A.D.). The decisions clearly indicate that a Court of
appeal will not alter a determination
arrived at by the exercise of a
discretionary power merely because it would have exercised that
discretion differently. There must
be more than that. The Court of
appeal, after careful consideration of all the relevant circumstances
as to the nature of the offence
committed and the person of the
accused, will determine what it
thinks the proper sentence ought to be, and if the
difference between that sentence and the sentence actually imposed is
so great
that the
inference can be made that the trial court acted unreasonably, and
therefore improperly, the Court of appeal will alter
the sentence. If
there is not that degree of difference the sentence will not be
interfered with.”
[5]
In the present case,
the evidence disclosed that the appellant and another man on 31 March
2017 attempted to rob the complainant,
who was walking towards the
Pentech Station in the Belhar area at around 06h15 in the morning
while on his way to work. It was
still completely dark. The appellant
approached the complainant with a smallish, greyish, imitation toy
gun in his hand. The toy
gun was pointed to the complainant’s
body and appellant demanded that complainant give the bag that he had
on his back to
the person behind him, who was pulling at the bag.
While the appellant was pointing the gun at the complainant, the
police officer,
Constable Grant David Abrahams, approaching from his
front, behind the appellant, stopped the attempted crime and arrested
appellant.
[6]
The appellant’s
accomplice who was behind the claimant pulling at the bag and
demanding that complainant hand it over, also
saw the policeman
coming and ran away. It was, however, too late for the appellant to
run away and he was apprehended by Constable
Abrahams.
[7]
Constable Abrahams, who
acted upon information gained of robberies in that area stood in the
dark in the yard when he saw the three
men approaching. When he heard
a scream, he reacted and the appellant was subsequently arrested. As
stated the second assailant,
however, ran away.
[8]
The appellant at the
trial stated that his intentions and actions on that particular
morning was to rob people in the area and that
he and the second
assailant on that particular morning had already robbed someone. The
appellant, however, denied that he attempted
to rob the complainant.
The complainant and Constable Abrahams both testified in the trial
court. They did not know each other
prior to the date of the
incident. The appellant had according to the evidence of both the
complainant and Constable Abrahams an
imitation firearm on him when
he was arrested by Constable Abrahams.
[9]
When the appellant’s
previous convictions were placed before the court, he admitted that
he was found guilty of culpable homicide
in 2006 and sentenced to a
suspended sentence and correctional supervision of 3 years. In 2011
he was found guilty of assault and
given a suspended sentence and in
2011 also found guilty of theft on two counts and given a fine of R2
000.00 or five (5) months
imprisonment. In 2012, he was found guilty
of robbery and given a two-year imprisonment and declared unfit to
possess a firearm.
It is to be noted that, save for the conviction of
assault, the appellant was imprisoned on each occasion due to breach
of correctional
supervision or his parole conditions.
[10]
A conviction of being
found guilty of the possession of drugs in 2016 and for which he was
given a fine was however denied by the
appellant. The state at that
point then forfeited the right to prove the last-mentioned conviction
and the presiding magistrate
then made it clear that he would
disregard it.
[11]
Prior
to the court having the benefit of the submissions of counsel for the
appellant and counsel for the State, both counsel was
requested by
the court to consider the cases of
S
v Chumkumbera
[3]
and
S
v Swarts
[4]
,
an unreported judgment by Plasket J. In addition, they were asked to
also consider the role and effect of
section 120(6)
of the
Firearms
Control Act 60 of 2000
on sentencing in
casu
.
In terms of
section 120(6)
read with schedule 4, the
Firearms Control
Act 60 of 2000
prescribes a maximum sentence of 10 years’
imprisonment for the pointing of an imitation firearm. Both
Chumkumbera
and Swarts
supra
deals with the situation where a toy gun was used in the committing
of the crime and the appropriate sentence in respect thereof
considered on appeal. Although in the present case, the appellant was
not charged in terms of the
Firearms Control Act 60 of 2000
, the role
that it plays in sentencing in the present matter had to be
considered. The Court had the benefit of the submissions
in regard to
the aforesaid in addition to the other submissions from both counsel
for the appellant and counsel for the State.
[12]
Section 120(6)
of
Act 60 of 2000 reads as follows:
“
(6)
It is an offence to point-
(a)
Any
firearm, an antique firearm or an air gun, whether or not it is
loaded or capable of being discharged, at any other person,
without
good reason to do so; or
(b)
Anything which is
likely to lead a person to believe that it is a firearm, an antique
firearm or an air gun at any other person,
without good reason to do
so”
[13]
In
S
v Matloung
[5]
the Supreme Court of Appeal, in relation to the question namely, did
the
Firearms Control Act 60 of 2000
implicitly amend the Criminal Law
Amendment Act 105 of 1977, found as follows:
“
[23]
In relation to these two statutes there is no indication that the
Firearms Control Act intended
to repeal the earlier Act. Accordingly,
the court a quo erred in its finding that the
Firearms Control Act
repealed
s 51 of the Criminal Law Amendment Act, as is also the case
with the conclusion of the full bench of the
Western Cape Division, Cape Town,
in
S v
Baartman
2011(2)
SACR 79 (WCC). Baartman was correctly overruled in the unreported
decision of the full court of that division in S v Swart
2016(2) SACR
268 (WCC).”
The two acts
accordingly co-exist.
[14]
It
is common cause that the
Criminal Law Amendment Act 105 of 1997
does
not prescribe a minimum sentence for the attempt of the crime the
appellant was convicted of. Both counsel for the appellant
and
counsel for the State shared the view that the fact that the
Firearms
Control Act 60 of 2000
provides a maximum sentence of 10 (ten) years
imprisonment for the contravention of
section 120(6)
should be taken
into account as a guideline in the imposing of an appropriate
sentence despite the fact that the appellant was
not charged under
the provisions of
section 120(6)
of the
Firearms Control Act 60 of
2000
.
[15]
From
the record of the proceedings, the judgment and sentence in the court
a
quo
,
it is clear that the appellant and his accomplice, who ran away,
planned the robbery which was only unsuccessful due to the
intervention
by Constable Abrahams.
[16]
It
was submitted that the regional magistrate misdirected himself by
failing to attach sufficient weight to the substantial factors
placed
on record on behalf of the appellant who was 31 years of age at the
time the sentence was imposed, an unmarried man, father
of an
eight-year-old child, who is living with his mother in George and
that the family assist in supporting the child. Further,
that the
appellant progressed to grade 11 and successfully completed a
one-year course in Business Management, was employed on
a temporary
basis as a cleaner, working one day per week and earned an income of
R100 – R200 per day and he was kept in custody
upon his
conviction on attempted robbery.
[17]
In
addition to the fact that no minimum sentence applied to the
conviction on a single count of attempted robbery, the victim impact
report merely indicated that the complainant is after the attempted
robbery more vigilant or aware of his surroundings when he
is walking
in the street, the complainant did not sustain any injuries, did not
suffer financial loss and having regard to the
various gradations of
seriousness of the offence, the attempted robbery in the present
matter fell short of the most serious type
of attempted robbery for
which a long term of direct imprisonment would be a just sentence.
[18]
Section
1(1)(b) of the Criminal Procedure Act 51 of 1977 (“CPA”)
defines aggravating circumstances in relation to robbery
or attempted
robbery, as follows:
“
(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,
By
the offender or an accomplice on the occasion when the offence is
committed, whether before or during or after the commission
of the
offence;”
[19]
In
the matter of
S
v Swarts
supra in reference to Section 1(1)(b) of the CPA, and
S
v Anthony
[6]
it was found that in order for aggravating circumstances as envisaged
by sub-section (i) to be present, the firearm had to
be a real
firearm: a toy firearm does not suffice. That does not end the
enquiry. A toy firearm (or a real firearm that does not
work) can
still be used as a means of threatening to inflict grievous bodily
harm, for purposes of sub-section (iii) of the definition.
[20]
The
court
a
quo
apart from considering the personal circumstances of the appellant,
then turned to the aggravating factors and referred thereto
that if
it was not for the conduct of Constable Abrahams, the appellant would
not have been caught and that the appellant testified
that he and his
accomplice, who ran away, had indeed committed a crime of robbery in
the area that morning and were looking for
other victims to rob. The
court
a
quo
then referred thereto that this clearly indicated that the attempted
robbery was premeditated and that the appellant willfully
and
intentionally committed the crimes to prey on victims, that appellant
was an offender who repeatedly and repetitively commits
crimes. In
addition, the court
a
quo
,
despite the fact he stated at the stage when appellant’s
previous convictions were dealt with, that it would be disregarded,
took into account an alleged previous conviction of the possession of
drugs.
[21]
It
is trite law that in sentencing, the punishment should fit the crime,
as well as the offender, be fair to both society and the
offender,
and be blended with a measure of mercy.
[7]
[22]
In
S
v Masda
[8]
in referring to the case of
S
v Mhlakaza
and Another
[9]
Saldulker AJA
quoted as follows:
“
The
object of sentencing is not to satisfy public opinion but to serve
the public interest…. A sentencing policy that caters
predominantly or exclusively for public opinion is inherently flawed.
It remains the court’s duty to impose fearlessly an
appropriate
and fair sentence even if the sentence does not satisfy the public.”
[23]
The
court
a
quo,
further
found that although the crime was not completed and no valuables was
secured from the complainant, it remained a very serious
crime and
prevalent in the area of jurisdiction of the court. The court
a
quo
also mentioned that it was the appellant who pointed the toy gun at
the complainant, who perceived it to be a real gun and that
it was
subsequently found in his possession.
[24]
The
facts in
Chukumbera
(referred to above) were similar to the present case. There the
appellant was also 31 years old and the father of an 8-year-old
child. Unlike the present matter, however, he only had one previous
conviction (for theft) for which he had been sentenced to 3
years’
imprisonment.
[25]
In
that matter, the appellant was one of two accused who after
assaulting the complainants, attempted to rob them, with the
appellant
wielding a toy firearm which the complainants perceived to
be real. The appellant and his accomplice subsequently fled but were
apprehended nearby. The trial court had sentenced the appellant to 8
years on the count of attempted robbery with aggravating
circumstances.
[26]
On
appeal it was held that the trial court overemphasized the
seriousness of the offence, predominantly because it is “legally
indefensible” to elevate a person who uses a toy firearm to
carry out an attempted robbery to one who uses a real firearm.
Although the desired result (the threat to inflict grievous bodily
harm) is similar, the moral culpability is distinguishable,
since the
assailant with the real firearm foresees the possibility of potential
fatal repercussions if he encounters resistance
and discharges it.
The sentence was reduced to 5 years’ imprisonment.
[27]
Counsel
for appellant argued that the sentence in the circumstances of the
case is strikingly inappropriate and that the trial court
erred by
imposing a sentence that is out of proportion to the totality of the
accepted circumstances in aggravation and mitigation.
Counsel for
appellant, however, correctly conceded that a sentence of less than 5
(five) years would not be appropriate.
[28]
Counsel
for the State was rightly constrained to concede that the effective
sentence was excessive.
[29]
It
would in the circumstances, apart from all of the aforesaid also be
appropriate that guidance be taken and regard be had to the
fact that
the maximum sentence prescribed in terms of the
Firearms Control Act
is
10 (ten) years and especially more so if regard is had to the fact
that the
Criminal Law Amendment Act 105 of 1997
does not prescribe a
minimum sentence for the attempt of the crime the appellant was
convicted of.
[30]
In
the circumstances, it is my view that the court
a
quo
misdirected itself in that the sentence imposed on the appellant is
disturbingly inappropriate, and there was furthermore a material
misdirection in taking into account an unproven previous conviction.
[31]
Accordingly,
I propose the following order:
a.
The
appeal against the sentence imposed by the court below is upheld to
the extent set out in paragraph b.
b.
The
order of the trial court is set aside and substituted with the
following:
“
The
appellant is hereby sentenced to a term of eight (8) years
imprisonment
.”
c.
The
sentence is antedated in terms of
section 282
of the
Criminal
Procedure Act 51 of 1977
to 28 November 2018.
LE
ROUX, AJ
ACTING
JUDGE OF THE HIGH COURT
I
agree, it is so ordered.
CLOETE,
J
JUDGE
OF THE HIGH COURT
[1]
1975(4)
SA 855 (AD) at 857 E
[2]
1964(3)
SA 494 (AD) at 495 D-H
[3]
2015
JDR 0037 (GJ)
[4]
Review
case No. 20170042 in the Eastern Cape Division, Grahamstown,
delivered on 18 August 2014 by
Plasket
J with Bloem J concurring.
[5]
2016(2)
SACR 243 (SCA) at 251 J -252a
[6]
2002(2)
SACR 453 (C) at 454j-455a
[7]
S v
Rabie 1975(4) 855 (AD) at 862 G
[8]
2010(2)
SACR 311 (SCA) at 315
[9]
1997(1)
SACR 515 (SCA) at 315