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[2021] ZAWCHC 104
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S v C.A (161/2021; 07/21; SHC171/2020) [2021] ZAWCHC 104; 2021 (2) SACR 443 (WCC) (26 May 2021)
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In the High
Court of South Africa
(Western
Cape Division, Cape Town)
High
Court Ref:
Case No: 161/2021
Magistrate
Serial Number: 07/21
Case
Number: SHC171/2020
In
the matter
between:
THE
STATE
And
C[….]
A[….]
Delivered
electronically: 26 May 2021
JUDGMENT
LEKHULENI
AJ
INTRODUCTION
[1]
This case comes before me by way of review in terms of section 85 of
the Child Justice
Act (“
the
CJA”
) read
with Chapter 30 of the Criminal Procedure Act 51 of 1977 (“
the
CPA”
). The
accused was 17 years old at the time of the commission of the offence
and was 18 years at the time of sentencing. He was
convicted on the
09 April 2021 by the Regional Court sitting at Wynberg on a charge of
Robbery with Aggravating circumstances.
He
was legally represented
in
the court a quo and his conviction followed a
plea
and sentence agreement in terms of section 105A of the
CPA.
The court a quo subsequently
sentenced
him to 5 (five) years imprisonment on condition that he is not
convicted of robbery aggravating, robbery or attempted
robbery during
the period of suspension. In terms of
section 103(1)(g)
of the
Firearms Control Act 60 of 2000
, the court deemed the accused unfit
to possess a Firearm.
This
matter is subject to automatic review in terms of the provisions of
section 85
of the CJA. E
ssentially,
this court is enjoined to consider whether the proceedings before the
court below appear to be in accordance with justice.
[2]
The record of proceedings from the court a quo was placed before me
on the 05 May
2021. Having perused the record on 06 May 2021, I
formed the opinion that the conviction of the accused was in
accordance with
justice. However, I was concerned with the manner in
which the sentence was couched or formulated. I was also concerned
with a
number of procedural irregularities during the plea and
sentence proceedings that the trial court committed which in my view,
where
not so gross to vitiate the proceedings.
FACTUAL
MATRIX
[3]
The State alleged that upon or about 19 April 2020 and at or near
Baviaanskloof Houtbay,
Western Cape the accused did unlawfully and
intentionally assault Amanda Bhe by threatening her with a knife and
did there with
force take from her a Samsung cellphone valued at
R1200, her property or property in her lawful possession. The accused
pleaded
guilty to the charge in terms of a plea and sentence
agreement. In terms of subsection 105A(5) the CPA, the contents of
the agreement
was disclosed to the court and the substantial facts of
the agreement were read into the record.
[4]
The facts gleaned from the plea and sentence agreement are that on
the 19 April 2020
and at Houtbay, the accused was walking with his
friend and they saw the complainant, a young African lady walking
alone in Baviaanskloof.
The accused ran towards the complainant and
demanded that she hand over her cellphone to him. The accused’s
friend took out
a knife and approached the complainant from the back
and pointed the knife at the complainant. The complainant noticed the
accused’s
friend standing behind her with the knife and out of
fear she handed the cellphone to the accused. After they got the
cellphone
from the complainant, the accused and his friend ran away.
The accused and his friend subsequently sold the cellphone and used
the proceeds thereof to buy drugs. The accused admitted that he was
acting in concert with his friend when they robbed the complainant.
On 13 June 2020 the complainant was driving with the police in their
car and she pointed the accused to the police and they arrested
him.
As a mitigating factor, the trial court was informed that the accused
repaid the complainant the sum of R1500 as a replacement
value for
the phone they robbed her.
[5]
On being questioned by the court in terms of subsection 105A (6)
whether he admitted
the terms of the agreement, the accused confirmed
the contents of his statement which was read into the record. The
accused was
subsequently convicted as charged. The Probation Officer
Ms Mhlahlo compiled a pre-sentence report for the court and alluded
to
the fact that the accused was a first offender. The Probation
Officer recommended that the court should impose a wholly suspended
sentence in terms of
section 297(1)(b)
of the CPA read with
section
78
of the CJA. Indeed, in terms of the plea and sentence agreement,
the court imposed a sentence of five years’ imprisonment
which
was suspended on usual conditions.
APPLICABLE
LEGAL PRINCIPLES AND ANALYSIS
[6]
As discussed above, there were a number of irregularities that were
observed by this court on
the record. For instance, before the
accused was required to plead, the prosecutor was obliged under
subsection 105A(4)(a) of the
CPA to inform the court that an
agreement contemplated in subsection (1) was entered into. Pursuant
to that information, the court
was enjoined to confirm with the
accused if indeed such an agreement had been entered into. In this
case, the accused appeared
and the prosecutor proceeded to put the
charge to the accused without informing the court that there was a
plea and sentence agreement
concluded. The accused was also not asked
to confirm whether such an agreement was entered into when the
proceedings commenced.
[7]
The court had to satisfy itself before the accused could plead
whether the prosecutor had complied
with the requirements of
subsections 105A(4)(a) namely, whether the prosecutor had consulted
with the investigating officer with
due regard to at least the nature
of the offence and the personal circumstance of the accused and with
the complainant. The court
only inquired from the prosecutor if he
complied with this provision long after the accused had pleaded and
after the agreement
was long read into the record. The record also
shows that after the accused pleaded, the defense attorney proceeded
to read into
the record the factual admissions of the accused. She
did not read or deal with
part C
of the agreement which dealt with
the mitigating and aggravating factors as well as the agreed
sentence.
[8]
It must be stressed that subsection 105A(4)(a) is peremptory and is
also aimed at
protecting an accused person against entering blindly
and unthinkingly into a plea and sentence agreement.
In
State v Nel
(A352/07)
[2008] ZAGPHC 43
(28 January 2008) at para 4, Moshidi J, held that
section 105A
stood on its own and excluded the usual plea
arrangements between an accused and the State. The learned justice
observed that the
prosecution and the courts must strictly comply
with the provisions in the section and that a court of appeal will be
loath to
interfere if the provisions have been complied with unless
there are glaring or ascertainable gross irregularities or a
violation
of the accused’s constitutional rights to a fair
trial.
[9]
The record also reveal that t
he
court below questioned the accused if he admitted the substantial
facts read into the record by his legal presentative and the
accused
confirmed. A
fter
questioning the accused in terms of subsection 105A(6)(a), the court
was satisfied that the accused admitted all the allegations
in the
charge and instead of proceeding to consider the sentence agreement
in terms of
section 105A
(7), the court proceeded to convict the
accused and then inquired if the accused had previous convictions.
The accused did not
have previous convictions and the court sentenced
the accused in terms of the agreed sentence.
[10]
In my view, the provisions of subsections 105A(7)(a) and (8) have to
be read together. Once the
court is satisfied that the accused admits
the allegations levelled against him and that he is guilty of the
offence, the court
must proceed to consider the sentence agreement in
terms of
section 105A(7).
In contrast to
section 112(1)(b)
and
112
(2)
of the CPA, subsection 105A(7) does not require the court to
immediately convict the accused after the court is satisfied that
the
accused admits all the elements in the charge. The court must first
consider the sentence agreement before it can convict and
sentence
the accused. For the sake of completeness,
section 105A(7)(a)
provides as follows:
‘
If the
court is satisfied that the accused admits the allegations in the
charge and that he or she is guilty of the offence in respect
of
which the agreement was entered into,
the
court shall proceed to consider the sentence agreement
.’
(the emphasis is mine)
[11]
In my view, this subsection is aimed at ensuring that the accused has
not pleaded guilty to a
charge that he does not understand, or facts
that do not disclose the offence charged. Once the court is satisfied
that the accused
understands the nature and implications of the
agreement, the court must consider
whether
the sentence agreed upon is just. It is not expected at this stage of
the proceedings for the court to convict the accused.
The court must
proceed to consider the sentence agreement without having formally
convicted the accused. See
Du
Toit et al Commentary on the
Criminal Procedure Act
at
15 – 20D. The formal conviction of the accused can only
follow where the court is satisfied that the sentence agreement is
just in terms of subsection 105A(8) or where the court is on account
of the provisions of
section 105A(9)(c)
is at liberty to impose the
sentence which it considers just. See
Du
Toit et al Commentary on the
Criminal Procedure Act
at
15 – 20E. More importantly, the provisions of subsections
105A(8) and 9(c) are preemptory. (See
S
v Knight
2017 (2)
SACR 583
(GP) para 10. In other words, the consideration of sentence
must take place before the conviction of the accused.
[12]
In considering the sentence agreement in terms of subsection 105A
(7), the court may
hear
submissions in aggravation and mitigation of sentence. T
he
court is further enjoined to consider the triad in determining
whether the sentence is just or not. The court may receive such
evidence as it thinks fit in order to inform itself that the sentence
agreed upon is just and appropriate in terms of
section 274
of the
CPA.
In
cases where the
Criminal Law Amendment Act 105 of 1997
is applicable
in respect of prescribed minimum sentences, the court would have to
consider if there are any substantial and compelling
circumstances
envisaged in
section 51(3)
of that Act.
The
determination whether the sentence is
just
essentially remains a matter of judicial discretion which is to be
exercised with due regard to all the facts of the case and all
relevant principles of sentencing before the court can convict the
accused in terms of subsection 105A(8).
[13]
Once the court is satisfied that the agreed sentence is just, the
court must
inform
the accused and the prosecutor that the sentence is just and must
formally
convict and
sentence
the
accused in terms of the agreement. Notably, the conviction and the
sentence must be done simultaneously in terms of 105A (8).
For the
sake of brevity, section 105A (8) provides as follows:
‘
if
the court is satisfied that the sentence agreement is just, the court
shall inform the prosecutor and the accused that the court
is so
satisfied,
whereupon the court shall
convict the accused of the offence charged and sentence the accused
in accordance with the sentence agreement.’
(the emphasis
is mine)
[14]
As discussed above, the court a quo did not follow the provisions of
section 105A(7) and (8)
correctly. It is trite that not all
irregularities are fatal and would lead to setting aside of
proceedings. It cannot be said
that there was a failure of justice in
this matter. In my view, the irregularities highlighted above did not
vitiate the legality
of the proceedings. The accused was legally
represented by an attorney. The accused admitted to all the factual
elements of the
charge. He also confirmed that he pleaded guilty
freely and voluntarily and without being unduly influenced. He signed
the agreement.
The prosecutor and the accused’s attorney also
signed the agreement. In my opinion, there was substantial compliance
with
the provision of section 105A. In
S v Ndlovu
1998 (1)
SACR 599
(W) at 601
,
it was stated that dealing with automatic
review proceedings does not require the judge to certify that the
proceedings are in accordance
with law but in accordance with
justice. I am of the view that the conviction of the accused was in
accordance with justice.
[15]
However, the sentence imposed by the court a quo was not properly
formulated. In his response
to a query by this court, the presiding
magistrate conceded that it was an oversight on his part not to check
the wording of the
sentence agreement as it was compiled by the
state. He requested this court to amend it accordingly. The sentence
imposed by the
court a quo reads as follows:
“
The
accused is sentenced to five years’ direct imprisonment which
is wholly suspended for five years on condition that the
accused is
not convicted of robbery aggravating, robbery or attempted robbery
during the period of suspension.”
[16]
A sentence imposed by the court can be suspended in whole or in part
in terms of section 297(1)(b)
of the CPA. The primary aim of a
suspended sentence with negative conditions is to deter the offender
from committing similar offences.
See
S
v Rosscoe
1990 (2) SACR 125
(W) at 129 A-C. In
S
v Koko
2006 (1) SACR 15
(C) at 21, Van Reenen J, found that the purpose of
suspending the whole or any part of a sentence is twofold: The
first is
to avoid a repetition in the future of a criminal conduct of
which an accused has been found guilty and the second is to obviate
the deleterious consequences that direct imprisonment may have. The
condition that attached to suspension has to be reasonably
feasible.
It must be made clear to an accused that his conduct during the
entire period of suspension is decisive and that a conviction
after
the period suspension in respect of the specified crimes committed
during the period of suspension, will trigger imposition
of the
suspended portion of the sentence. In other words, the condition of
sentence must be precisely formulated
in
such a way that they do not cause future unfairness or injustice.
S
v Titus
1996
(1) SACR 540
(C)
. In
S
v Bennet;
S
v Joordaan; Sv Gabriels
2004
(2) SACR 156
(C) at 161A, Bozalek J held that the conditions of
suspension should have some relation to the crime, should be stated
with precision
and be reasonable.
[17]
From the discussion of the authorities above, it is abundantly clear
that the conditions of suspension
should be worded in such a way that
it is the commission of the particular offence that can trigger or
precipitate implementation
of the order. The condition should clearly
stipulate that the accused should not be convicted of a particular
offence ‘committed’
during the period of suspension. In
this case, the court omitted to include the word ‘committed’
during the period
of suspension in its sentence judgment. In my view,
this omission is likely to cause prejudice and injustice to the
accused in
the future if it is not corrected. It is further my
considered view that the addition of the word ‘committed’
during
the period of suspension will restrain the accused by means of
the threat of implementation of the suspended sentence, from
committing
robbery, aggravated or attempted robbery during the five
years’ period of suspension.
ORDER
[18]
In the result, I would propose the following order:
18.1
The sentence imposed by the trial court is hereby corrected to read
as follows:
“
The
accused is sentenced to five years’ direct imprisonment which
is wholly suspended for five years on condition that he
accused is
not convicted of robbery aggravating, robbery or attempted robbery
committed during the period of suspension.”
LEKHULENI AJ
ACTING JUDGE OF
THE HIGH COURT
I agree and it is
so ordered:
HENNEY
J
JUDGE OF THE HIGH
COURT