About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2021
>>
[2021] ZAWCHC 92
|
|
Willemse v S (A 80 / 2021) [2021] ZAWCHC 92; 2022 (1) SACR 43 (WCC) (11 May 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Reportable
Case
No:
A 80 / 2021
In
the matter between:
JACKSON
WILLEMSE
Appellant
and
THE
STATE
Respondent
Coram: Wille et
Kusevitsky, JJ
Heard: 7th of
May 2021
Delivered:
11
th
of May 2021
JUDGMENT
WILLE,
J
:
INTRODUCTION
[1]
This is an appeal directed solely against sentence with the leave of
the court on
petition. The appellant was convicted in the lower
court on (2) counts of housebreaking with intent to steal and theft.
The appellant was legally represented for the duration of his trial
and he pleaded not guilty to both the charges as preferred
by the
respondent. He elected not to tender any plea explanation and
exercised his right to remain silent.
[2]
The appellant was sentenced to (6) years direct imprisonment on each
count.
The judicial officer in the lower court in addition made
the following order in connection with the sentences that were
imposed,
namely that:
‘
The
two will not run concurrently’
More
about this issue later.
THE
APPELLANT’S CASE
[3]
The appellant contends for the following: that he was (39)
years
old when he was sentenced: that he was unmarried with (2)
minor children and (1) major child: that these children reside
with their biological mother: that she receives a social grant
of R400,00 per month per child: that the appellant is
self-employed as a repair technician earning the sum of R500,00 per
week: that he has a grade (7) education and that he was
incarcerated as an awaiting trial prisoner for (19) months prior to
his conviction.
[4]
It is argued on behalf of the appellant that the presiding officer in
the lower court,
inter alia, did not sufficiently engage with the
personal circumstances of the offender and did not sufficiently weigh
up the period
that the appellant endured as an awaiting trial
prisoner prior to his conviction. Besides, the seriousness of
the crimes
committed, were over emphasised and the judicial officer
did not sufficiently take into account the cumulative effect of the
consecutive
sentences imposed upon the appellant. The main
argument that remains is that the cumulative effect of the sentences
imposed
upon the offender is something that the lower court should
have guarded against in these particular circumstances.
THE
CASE FOR THE RESPONDENT
[5]
In aggravation of sentence, the respondent called the complainant in
connection with
count (1) who testified: that the offence was
committed when the farming activities in the area were severely
ravaged by
drought and the agricultural sector was economically
depressed at the time: that the value of the items and
equipment stolen
was in the sum of about R140 000,00: that the
complainant’s farming operations were extensively disrupted due
to the
theft of these goods: that the general farming community
in this area felt unsafe in their homes due to a recent spate of
farm
burglaries: that since the incarceration of the appellant,
crime in the area had to an extent subsided: that both
the
properties that were violated (in connection with both counts), were
situated in the same farming region and finally, that
the appellant
exhibited no remorse. Most significantly, it was common cause
that the appellant was on bail in connection
with the offence as
particularized in count (2), when he committed the offence as
formulated in count (1).
THE
RELEVANT FACTUAL MATRIX
[6]
In connection with count (1) the following: the offender
unlawfully broke into
a storeroom and a workshop on the subject farm
and stole a vast number of essential farming items and equipment:
this consisted
of some essential irrigation equipment and some
crucial generating equipment: severe damage was caused to the
storeroom and
the office in the storeroom: the total value of
the loss suffered was R137 275,00: substantial damage was also
caused
to the structure of the storeroom and the workshop: a
laptop computer was stolen that regulated and controlled the entire
farms irrigation system: certain video camera footage was
recovered which exhibited an image of the suspect who broke into
the
storeroom and the office: images of the suspect were then
posted on a ‘WhatsApp’ group for the farmers in
the area
and within minutes the offender was positively identified: it
was discovered that the appellant was on bail at the
time and the
appellant was not allowed to be in this particular farming area.
Put in another way, the offender was in violation
of his bail
conditions at the time that he committed the offence as
particularized in count (1). Sometime thereafter the
offender
was apprehended, and he was found in possession of the laptop
computer belonging to the complainant in count (1).
[7]
A further witness
[1]
, testified
that the offender was well known to her and she also positively
identified him on the video footage images. Yet
another two
witnesses
[2]
, testified that the
offender was well known to them and they also positively identified
the appellant on the video footage images.
Further, an
independent witness
[3]
,
testified that the police apprehended the offender whilst still in
possession of the stolen laptop computer.
[8]
As far as count
(2) was concerned, the
following: the complainant testified that the offender is well
known to her: her shop had been
broken into: the back
door of her shop had been forced open: a number of her goods
were stolen to the value of about
R10 000,00. She also
confirmed that some of her stolen belongings were recovered from
where they had been abandoned
in a nearby open area. These
goods were delivered up to her by some young people from this area.
Indeed, one young
boy testified in this connection and corroborated
her version on this aspect. This complainant also identified
the offender
on the video footage images exhibited to her.
[9]
Ms Snyman testified that the offender was well known to her.
She, in real time,
observed the offender break into and enter into
the complainant’s shop as set out in count (2). Certain
goods were
stolen from her store. The investigating officer
testified essentially in connection with count (1) and corroborated
some
of the evidence tendered in support of the respondent’s
case.
[10]
A number of other witnesses testified in connection with some of the
collateral issues in support
of the respondent’s case. I
do not deem it prudent to refer to or summarize any of their evidence
as their evidence
was not in any manner connected with, or germane to
the appeal on sentence under consideration by this appeal court.
[11]
The appellant elected to testify in his own defence. In this
connection, the following:
he denied he was the person
described in the video camera footage: he denied that he was
apprehended in possession of the
laptop computer that was stolen in
connection with count (1) and he advanced that the witness who
identified him as the person
who broke into the shop
[4]
,
was possessed with a motive and had a score to settle with him. His
evidence and version of events was rejected as being
both improbable
and false. This, correctly so.
DISCUSSION
[12]
I need to examine not only the nature and seriousness of the crimes,
but also the
aggravating circumstances and weigh them up against the
mitigating circumstances (if any), to determine whether the sentences
were,
in the circumstances of this case, appropriate and
proportionate to the offences committed. I also need to examine
carefully
the cumulative effect of the sentences imposed on the
offender.
[13]
In
Boggards
[5]
,
an appeal court’s discretion to interfere with a sentence was
aptly described in the following terms: when there has
been an
irregularity that results in a failure of justice: or when the
court
a
quo
misdirected
itself to such an extent that its decision on sentencing is vitiated:
or when the sentence is so disproportionate
or shocking that no
reasonable court could have imposed it.
[14]
Regarding the significance of time spent in detention,
pre-sentencing, Lewis JA in
Radebe
[6]
,
made it clear that this is merely one of the factors to be taken into
consideration to determine whether the effective sentence
imposed is
proportionate to the crime committed and therefore in the final
analysis justified. In a case involving armed
robbery
[7]
,
she held, inter alia, as follows:
‘
the
test is not whether on its own that period of detention constitutes a
substantial and compelling circumstance, but whether the
effective
sentence proposed is proportionate to the crime or crimes committed;
whether the sentence in all circumstances, including
the period spent
in detention prior to conviction and sentencing, is a just one’
[15]
The offender in this case had been incarcerated for (19) months prior
to his conviction.
In
Fortune
[8]
,
it was
held that although the fact that a convicted offender has spent time
in prison awaiting trial is undoubtedly a relevant consideration
in
determining an appropriate sentence, it is not one that ‘
carries
any mechanical effect
’
and accordingly, this does not apply automatically.
[16]
In
Radebe
[9]
,
the
court disapproved of the notion that time in prison before sentencing
should necessarily count as the equivalent of ‘double
the time’
post-sentencing. Lewis, JA made it clear that there should be
no mechanical formula regarding the calculation
of the weight to be
attached to the period spent incarcerated whilst awaiting trial.
Rather, in each case the court should
assess the accused’s
individual circumstances to determine the extent to which the
proposed sentence should be reduced, if
at all. In determining
whether the effective period of imprisonment is justified and
proportionate to the crime committed,
the period in detention
pre-sentencing is but ‘
one
of the factors’
to be taken into account.
[17]
In
Fortune
, it was noted that the enquiry in respect of the
period spent in custody awaiting trial, was whether its effect would
render the
imposed sentence so disproportionate to the offence for
which the offender had been convicted. In the present case, the
crime
of which the appellant has been convicted on count (1), was
committed while he enjoyed bail in connection with count (2).
I
am accordingly unpersuaded that the period spent in custody awaiting
trial had the effect of rendering the imposed sentence,
so
disproportionate to the offences for which the offender had been
convicted, that this in itself, mechanically warrants the imposition
of a lesser sentence. It is however noted that the judicial
officer in the lower court made no mention whatsoever in his
judgment
on sentence of the period spent in custody by the appellant whilst
awaiting trial.
[18]
The appellant’s lack of remorse and the interests of the
community are material factors
in considering whether the sentences
were appropriate and proportional to the crimes committed. The
lack of remorse on the
part of the offender is, as a matter of logic,
more closely connected to the offender’s prospects of
rehabilitation.
The judicial officer in the lower court
correctly noted that the appellant was not a first offender.
[19]
A perusal of the record exhibits that the appellant possesses a
number of previous offences for
housebreaking and theft, together
with some previous convictions relating to the unlawful possession of
dependence producing substances.
[10]
The judicial officer in the lower court mentions the appellant’s
previous convictions and records that he is not a
first offender.
However, regrettably he goes no further than this in his judgment on
sentence. Again, as a matter of
logic, previous convictions
reflect on the character of the offender and may show that the
offender is less open to rehabilitation.
The important issue is
to what extent the previous convictions may or may not aggravate the
sentence. This, in turn depends
on the ‘weight’
attached to these previous convictions by the court of first
instance. The weight that the judicial
officer in the lower
court attached to the offender’s previous convictions in this
case, is absent from the record.
I am unsure to what extent
this weighed on the judicial officer’s mind when he imposed the
sentences upon the offender.
[20]
Nevertheless, in the present case, I am satisfied that the
aggravating circumstances surrounding
the commission of these (2)
offences, outweigh the mitigating ones. Accordingly, the
sentences imposed by the judicial officer
in the lower court were
appropriate. However, the cumulative effect of the sentences
imposed upon the offender is an entirely
different matter and this
bears careful scrutiny.
[21]
The imposition of sentences to run consecutively clearly involves a
negative element. I
say this because the negative connotation
is the sum of all the different sentences, may simply be too high,
too severe, or out
of proportion to what is deserved by the
offender. Put in another way, when the sum of the sentences
imposed is an appropriate
punishment, it can either be said that
there is no cumulative effect, or that the cumulative effect is
acceptable.
[22]
On this score, the judicial officer said the following in the
judgment on leave to appeal:
‘…
going
to your concern about the sentences not being – “running
concurrent” - that was this court’s prerogative’
‘…
It
will be up to the court, if I want now to say for both offences you
are serving six years’
‘…
I
gave you six years for each, and it was up to me to make it run
concurrent’
‘…
I
felt that it must not “run concurrent” and no judge will
deviate from that, not unless there has been an irregularity
from the
beginning to the end, then the judge will have a right or an
authority to alter the sentence’
‘…
However,
even if it can be altered, it cannot be altered in such a way that
when I said that it is not “running concurrent”
- then
they make it concurrent. It is not “running concurrent”
- because you committed these offences at different
times and they
were separate offences’
[23]
It seems to me that the sole and only reason for the judicial officer
in the lower
court making an order
[11]
that the sentences shall not be served concurrently, is because the
offences were ‘separate offences’ committed by
the
appellant. This is manifestly a misdirection. To begin
with, a sentencing court has to be acutely aware of any
cumulative
effect of the sentences imposed by it upon an offender. Where
the cumulative effect is not taken into account,
this in any event,
may be a misdirection standing on its own.
[24]
The sentencing court must as a matter of logic take into account the
totality of
the offender’s criminal conduct and moral
blameworthiness. Put in another way, the sentencing court is
required to
ameliorate the cumulative effect, reduce the cumulative
effect or avoid the cumulative effect. The cumulative effect,
in
my view, cannot be used as ‘additional punishment’ to
be imposed upon the offender.
[25]
Besides, the court has to act on the obligation to do something about
the cumulative
effect. In
Muller
[12]
,
the court explained that the court has to determine:
‘…
what
an effective sentence should be imposed, in order to ensure that the
aggregate penalty is not too severe’
[26]
Multiple offences often relate to what is described as essentially
the same event.
It is so that when offences are connected in
some way then the need for the cumulative effect to be reduced, is
generally greater.
In
Kruger
[13]
,
the
court noted that both the trial court and the first court of appeal
reasoned that it was inappropriate to order the sentences
to run
concurrently because the offences were committed at different times
and at different places.
[27]
Elaborating on this aspect the court in
Kruger
, accepted that:
‘…
This
may be a consideration, [but] it cannot justify a failure to factor
in the cumulative effect of the ultimate number of years
imposed’
[28]
What this really means is that it is the court’s duty to take
the cumulative
effect into account as part of the sentencing decision
as a whole so as to prevent the offender undergoing an unjustifiably
severe
sentence. This, especially when the sentence consists of
imprisonment. In my view, the court a quo did not take this
into account and may have attempted to visit upon the offender an
‘additional punishment’ by making an order that the
sentences imposed were not to be served concurrently. At the
very least, a portion of the sentence imposed in connection
with
count (2) should have been ordered to have been served concurrently
with the sentence imposed on count (1).
IN
PASSING AND OBITER
[29]
The
appellant takes the position that the judicial officer in the lower
court when imposing the sentences on the offender could
have ordered
the sentences to be served concurrently, alternatively, a portion
thereof to be served concurrently. This, in
terms of section
280(2) of the Act.
[14]
Indirectly, although not strictly raised on appeal, this raises the
question of whether the judicial officer in the lower
court was
seized and vested with the power to make the following order when
imposing the (2) separate sentences upon the offender,
namely:
‘
The
two will not run concurrently’
[30]
It may very well be that this is a very narrow issue and is not
strictly before us on appeal.
I accept this issue was not a
defined issue before us for adjudication. The position on this
score has recently been eloquently
formulated by Schippers JA, in the
Gun
Owners
[15]
case,
as follows:
‘…
in
our adversarial system of litigation, a court is required to
determine a dispute as set out in the affidavits (or oral evidence)
of the parties to the litigation. It is a core principle of this
system that the judge remains neutral and aloof to the fray. This
court, has on more than one occasion emphasised that the adjudication
of a case is confined to the issues before court’
[16]
[31]
This is undoubtedly the correct legal position and that is precisely
why my remarks in this connection
are obiter.
Section
276 of the Act
[17]
, provides
for a closed list of sentences that may be imposed upon an offender
by a judicial officer in the lower court. To
order that the
sentences imposed upon the offender shall not be served concurrently,
is not one of the listed competent sentences.
[32]
Section 280(2) of the Act, in turn, provides the judicial officer
with a specific discretion
to order that any sentences imposed upon
the offender may be ordered to be served concurrently. This is
a discretion to be
exercised to the benefit of the offender. By
contrast, the power to order that these sentences shall not be served
concurrently,
is absent.
[33]
The primary provision of section 280(2) refers to the consecutive
serving of multiple sentences
of imprisonment. Its real impact
however lies in the provision regarding the concurrent running of the
sentences. In
my view the primary provision is completely
unnecessary because of the provisions of section 39(2)(a) of the
Correctional Services
Act.
[18]
Besides, the provision that the court may determine the sequence of
how the sentences are to be served, seems to me, for
the same reason
to be of very limited legal or practical value. This, because
the relevant authorities have this power and
are left to determine
this issue in terms of section 39(2)(a) of the Correctional Services
Act. It is precisely because of
this legislative intervention
and taking into account the doctrine of the separation of powers,
that it may be argued that it could
amount to judicial overreach by a
judicial officer in the lower court to have made the order that the
(2) sentences imposed upon
the offender, shall not be served
concurrently. Alternatively, at best for the judicial officer in the
lower court, the ‘remarks’
that the (2) sentences imposed
upon the offender shall not be served concurrently fall to be
interpreted as if they were not written
at all.
[19]
[34]
In the result, the following order is granted:
1.
That the appellant’s convictions are hereby confirmed.
2.
That the appeal against the sentence imposed upon the offender in
count (1) is dismissed.
3.
That the appeal against the sentence imposed upon the offender in
count (2) is upheld and the sentence in connection with count
(2) is
set aside and substituted with the following sentence:
‘
In
terms of
section 280(2)
of the
Criminal Procedure Act 51of 1977
, it
is ordered that half of the sentence imposed on count (2) is to run
concurrently with the sentence imposed on count (1)’
4.
That the substituted sentence imposed in
connection with count (2) is antedated in that the substituted
sentence imposed shall be
deemed to have been imposed on the 6
th
February 2020.
_________
WILLE,
J
I
agree,
_______________
KUSEVITSKY,
J
APPEARANCES:
For
the Appellant: Mr MW Strauss
Instructed by Cape Town
Justice Centre
Cape Town
For
the Respondent: Advocate MJ September
Instructed by The
Director of Public Prosecutions
Cape Town
[1]
Ms
Julies
[2]
Mr Ceaser and Mr Kiewiets
[3]
Mr Plaatjies
[4]
In
connection with count (2)
[5]
S
v Boggards
2013 (1) SACR (CC) at [4]
[6]
S
v Radebe
2013 (2) SACR 165
(SCA) at [14]
[7]
Director
of Public Prosecutions, North Gauteng; Pretoria v Gcwala and Others
2014
SACR 337
at [16]
[8]
S
v Fortune
2014
(2) SACR 178 (WCC)
[9]
S
v Radebe
2013 (2) SACR 165
(SCA) at [14]
[10]
Most
of these offences were committed more than a decade ago, whilst (2)
of the drug related offences were committed in 2015 and
2016
respectively
[11]
I
am of the view that the judicial officer does not have this power at
all. See my obiter comments.
[12]
S v
Muller
2012 (2) SACR 545
(SCA) at para 9
[13]
S
v Kruger
2012
(1) SACR 369
(SCA) at para 9
[14]
The
Criminal Procedure Act 51 of 1977
[15]
National
Commissioner of Police and Another v Gun Owners of South Africa
[2020]
ZASCA 88
(23 July 2020)
[16]
Gun
Owners
at
16 para 26
[17]
The
Criminal Procedure Act, 51 of 1977
[18]
Act
111 of 1998
[19]
‘
Pro
non scripto’