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[2021] ZAWCHC 116
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Klaasen v S (A99/2021) [2021] ZAWCHC 116 (9 June 2021)
IN THE
HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
Case
number: A99/2021
In
the matter between:
PETER
KLAASEN
Appellant
and
THE
STATE
Respondent
Coram:
Fortuin J and Pangarker AJ
Date of hearing:
28 May 2021
Date of judgment: 9
June 2021
(delivered by email to the parties’
legal representatives).
JUDGMENT
PANGARKER
AJ (FORTUIN J concurring):
Introduction
1.
The matter emanates from the Regional Court, Stellenbosch and is an
appeal against
sentence only. The appellant, an adult male, was
charged with three counts, namely housebreaking with the intent to
steal and theft,
robbery with aggravating circumstances as intended
in section 1 of the Criminal Procedure Act 51 of 1977 (the Act) read
with
section 51
(2) of the
Criminal Law Amendment Act 105 of 1997
and
assault common. He was legally represented and after tendering a plea
in terms of section 112 (2) of the Act, he was subsequently
convicted
on charges of theft (count 1) and robbery with aggravating
circumstances (count 2). The assault common charge was withdrawn.
2.
The appellant’s legal representative addressed the court
a
quo
ex parte
in mitigation of sentence, whereafter the
appellant was sentenced as follows:
Count
1 – theft - 4 years’ imprisonment;
Count
2 - robbery with aggravating circumstances – 8 years’
imprisonment.
The
appellant represented himself in an application for leave to appeal
against conviction and sentence and on 18 November 2020,
he was
granted leave to appeal in respect of sentence only. The appellant
now appeals to this court against his sentence.
3.
In respect of the merits of the theft conviction, the State alleged
that on 27
April 2017 in Stellenbosch, the appellant unlawfully and
intentionally with the intent to steal, broke open and entered the
flat
of the complainant and then stole a jacket valued at R250, the
property of or in the lawful possession of the complainant. He
entered
the complainant’s residence through an open door at
01h30 after noticing that the front door of the complainant's flat
was
wide open. He realised that there were no people in the flat,
proceeded to enter, scouted for valuables to steal and consequently
took the complainant’s property. It was while he was inside the
flat, that the complainant returned, and assisted by security
personnel, the appellant was arrested. He admitted that there was no
justification for his actions. The State accepted the facts
on a plea
of theft and the appellant was convicted of theft of a jacket valued
at R250.
4.
In respect of the second charge, the appellant admitted that on 5 May
2017 at
approximately 02h30 in the morning he saw the complainant
waiting at the bus stop. He approached the complainant and asked him
for a cigarette, then grabbed the complainant's arm, threatened him
with a knife and demanded that he hands over his cell phone.
The
complainant did not have a cell phone and was robbed of R30 and a
packet of cigarettes. The appellant then left the scene.
The State
accepted the facts in respect of the plea on theft and the appellant
was accordingly convicted of theft and robbery with
aggravating
circumstances.
Previous
convictions
5.
The State proved the following previous convictions
[1]
against the appellant:
20
April 2004 – theft - fined R1200 or 8 months’
imprisonment wholly suspended for a period of 5 years on certain
conditions;
14 June 2005-theft - 2 years’
imprisonment;
12
December 2008 - housebreaking with intent to steal and theft -
12 months’ imprisonment, wholly suspended for 5 years
on
certain conditions;
18
February 2010 - housebreaking with intent to steal and theft - 12
months’ imprisonment.
The
appellant’s case
6.
The appellant’s personal circumstances were placed before the
court
a quo.
He was 35 years old, unmarried with no
dependants, had no fixed address and lived on the streets where he
looked for valuables -
he was described as a “
scouter”
.
He did odd jobs occasionally and would earn R200 per day. He had a
grade 10 education. He had admitted his previous convictions,
pleaded
guilty and had understood that he faced a minimum sentence in respect
of the robbery with aggravating circumstances. It
was submitted that
the appellant had shown remorse for his actions and the court was
asked to show him mercy and take his circumstances
into account and
deviate from the prescribed minimum sentence of 15 years for robbery
with aggravating circumstances. As to his
previous convictions, his
last offence was in 2010.
The
respondent’s case
7.
In the court
a quo
, the prosecutor submitted in aggravation of
sentence that the offences occurred in the early hours of the morning
and that, in
respect of count 1, the appellant was caught red-handed
in the complainant’s flat in possession of the jacket, which
was
recovered. Furthermore, that, in respect of count 2, the
appellant used a knife to deprive the complainant of his money and
cigarettes.
The submission on behalf of the State was that direct
imprisonment was the only appropriate sentence.
Sentence
judgment
8.
In his judgment on sentence, the regional magistrate took account of
the appellant’s
personal circumstances, that he did odd jobs
and had no fixed address; that he had pleaded guilty and spent
approximately 7 months
in custody (from 6 November 2017 to 7 June
2018). These latter aspects were found to be mitigating factors,
which the regional
magistrate held were substantial and compelling
circumstances allowing him to deviate from the prescribed minimum
sentence on the
robbery count. The seriousness of the robbery and the
perpetration of violence towards a defenceless person were factors
considered
during sentencing.
9.
In respect of the theft, the regional magistrate found that the
appellant had
invaded the sanctity and privacy of the complainant’s
home. As a further aggravating factor, the appellant’s previous
convictions were of a similar nature to the theft and that the
appellant had not made use of the opportunities given to rehabilitate
himself. The cumulative sentence imposed was 12 years’ direct
imprisonment.
Grounds
of appeal and submissions
10.
From the appellants’ counsel’s heads of argument, the
grounds for appeal are
as follows: in respect of the theft
conviction, it is submitted that the regional magistrate
over-emphasised the appellant’s
previous convictions which
resulted in a disproportionate sentence and misdirected himself in
considering previous
convictions older than 10 years.
Secondly, the deviation in respect of the robbery with aggravating
circumstances was not sufficient
given that it was not at the extreme
end of the scale. Thirdly, the cumulative effect of the sentence was
harsh and disproportionate.
11.
Mr Calitz on behalf of the appellant submitted that the appellant
acted opportunistically
when committing the theft and as for the
robbery, his actions were on the lower scale of violence and
seriousness. One of the most
important contentions on behalf of the
appellant is that the regional magistrate did not consider the
cumulative effect of a 12
year imprisonment sentence for theft of a
jacket valued at R250 and robbery with aggravating circumstances of a
packet of cigarettes
and R30 cash.
12.
Mr Snyman submitted on behalf of the State that the appellant
committed the offences within
8 days of each other, that the last
previous convictions were of a similar nature to count 1 (theft) and
that the appellant entered
the flat of a female complainant and was
caught red-handed. It was further submitted that there was no
evidence as to the circumstances
as to the appellant’s life on
the streets and that he had made choices to live a life of crime.
Counsel does not agree that
a further deviation on the robbery charge
is warranted as the regional magistrate had already taken into
account substantial and
compelling factors and thus halved the
minimum sentence. As to the 4 years’ imprisonment, Mr Snyman
submitted that the fact
that the offence was committed early in the
morning, was an aggravating factor. He submitted that the sentence is
not shockingly
inappropriate nor is the cumulative effect of the
sentence disproportionate in the circumstances. The fact that the
appellant has
previous convictions escalates his criminal conduct.
Evaluation
13.
It is trite that the determination of sentence falls within the
discretion of the trial
court. In
Director
of Public Prosecutions, KwaZulu Natal v P
[2]
,
the Supreme Court of Appeal stated that:
"the test for
interference by an appeal court is whether the sentence imposed
by the trial court
is vitiated by irregularity or misdirection or is
disturbingly
inappropriate”.
Furthermore,
interference on appeal may also occur where the sentence imposed by
the lower court is so disproportionate or shocking
that no reasonable
court could have imposed it
[3]
.
14.
A sentencing court is required to take into account the well-known
triad
[4]
of the seriousness of the crime, the personal circumstances of the
offender and interests of society. The court
a
quo
must weigh the
mitigating and aggravating factors
[5]
and arrive at a balanced judgment. The main grounds of appeal in this
matter are that the court
a
quo
overemphasised the
appellant’s previous convictions and did not take into
consideration the cumulative effect of imposing
a 12 year sentence.
15.
The record clearly reflects that the regional magistrate took into
account the appellant’s
personal circumstances, that he lived
on the streets, occasionally earned R200 from menial jobs, and had
achieved a grade 10 education.
The regional magistrate, in my view,
correctly found that the appellant’s personal circumstances and
the fact that he pleaded
guilty, constituted mitigating factors.
These factors, taken together with the fact that the appellant was in
custody for 7 months
at the time of sentencing, were considered as
substantial and compelling factors which in terms of section 51(3)(a)
of Act 105
of 1997 justified the imposition of a lesser sentence than
the prescribed minimum sentence for count 2. Unfortunately, on the
issue
of the previous convictions, the judgment does not provide any
details save that the regional magistrate found that they were
similar
to the theft conviction.
16.
Mr Snyman submitted that the appellant’s entry to the
complainant’s flat was
premeditated. In my view, there are
simply no facts from the regional court’s record to support
this view. Furthermore, it
was accepted that the appellant lived on
the street and so it is not unrealistic that he would be looking for
opportunities, thus
entering a flat to see what he could lay his
hands on. The submission that he acted opportunistically (rather than
with premeditation)
in respect of the theft accords with his
lifestyle, behaviour and the facts accepted by the regional court. Mr
Snyman also submitted
that this court should consider what could have
happened had the complainant been at home when the appellant entered
her flat:
with respect, this would amount to speculation. The facts
indicate that the appellant was apprehended before the complainant
suffered
any loss.
17.
The record of the sentence judgment
[6]
indicates that the regional court based its decision to impose 4
years’ imprisonment for the theft count, on the appellant’s
record of similar previous convictions which it considered as an
aggravating factor. Unlike in a recent matter before
Wille J (Kusevitsky J concurring) in
Willemse
v S
[7]
where the court
a quo
gave no indication as to the weight it attached to the appellant’s
previous convictions when imposing a sentence, in this
matter, the
record reflects that the regional magistrate gave particular regard
to the similar nature of the previous convictions,
the fact that the
appellant had received a suspended sentence and subsequently, a short
period of imprisonment for theft and housebreaking
with intent to
steal and theft, but had failed to make use of the opportunities
presented to him by rehabilitating himself.
18.
Two questions arise – firstly, which previous convictions were
considered by the regional
magistrate, and secondly, were the
appellant’s previous convictions over-emphasised? On the first
question, it follows that
previous convictions, related to the same
or similar offence, would aggravate the sentence. The more recent a
conviction on the
same or similar offence, the more weight it would
carry with the sentencing court.
In
casu,
at the time of
his conviction and sentence in 2018, three of the previous
convictions were older than 10 years. From the regional
magistrate’s
judgment, it is apparent that he took the 2004 and 2005 theft
convictions into account for purposes of sentencing
[8]
and placed the same weight on these older convictions as on the 2008
and 2010 convictions.
19.
Mr Snyman submits that
section 271A
of the
Criminal Procedure Act
does
not find applicability as the previous convictions do not fall
within the category of convictions listed under subsections (a) or
(b). I agree that
section 271A(a)
does not apply to the appellant’s
previous convictions. However, on closer scrutiny of
section
271A(b)
, it would include almost any offence, and certainly
housebreaking with intent to steal and theft, and theft
[9]
.
Thus, the 2004, 2005 and 2008 convictions would fall away if a period
of 10 years had elapsed after the date of conviction of
the offence,
unless during that period, the appellant was convicted of an offence
in respect of which a sentence of imprisonment
for a period exceeding
six months without the option of a fine, may be imposed. My
understanding of the words “
unless
during that period”
is that it refers to the 10 year period after date of conviction of
an offence. The appellant was convicted in 2010 of housebreaking
with
intent to steal and theft and a 12 month imprisonment sentence was
imposed. The 2010 conviction fell within the 10 year period
since the
last (2008) conviction. In my view, the 2004 and 2005 convictions
fell away by operation of
section 271A(b)
and should not have been
taken into account for purposes of sentencing. However, the 2008
conviction falls within the ambit of
section 271A(b)
and given that
the appellant was convicted in 2010 to 12 months’ imprisonment
which is a sentence exceeding six months’
imprisonment, the
2008 conviction does not fall away
[10]
.
Thus, to sum up the above, the last two convictions in 2008 and 2010
could be considered for purposes of sentencing, with the
older
conviction of 2008, having less weight than the 2010 conviction.
20.
The regional magistrate’s consideration of the 2004 and 2005
theft convictions was incorrect
and amounted to a misdirection.
Having then taken into account the two housebreaking convictions,
were the convictions over-emphasised?
My view is that the regional
magistrate did not over-emphasise the 2008 and 2010 convictions –
they were similar in nature
to the 2017 theft conviction, the
appellant received a suspended imprisonment sentence (2008) and later
direct imprisonment (2010),
and he was convicted during the period of
suspension.
21.
However, the record does not reflect that the regional magistrate had
any regard to the
fact that for seven years since his release on
parole after the 2010 conviction
[11]
,
the appellant had not been convicted of any offence. The appellant’s
next involvement in crime was in 2017, being the two
offences forming
the subject matter of this appeal. This brings me then to whether the
4 years’ imprisonment was disproportionate
given the facts and
circumstances of the matter, the appellant’s circumstances, the
interests of society and the criminal
record. The last two
convictions show that the appellant’s conduct had escalated to
serious offences. My view is that when
imposing the 4 years for
theft, the regional magistrate failed to have regard to the
cumulative effect of the sentences he was
imposing. In this regard,
no mention or consideration was made of the provisions of section 280
(1) and (2) of the Act, which affords
the court a discretion to order
that imprisonment sentences are to run concurrently. Once a finding
or decision was made to sentence
the appellant to 4 years’
imprisonment, a further consideration was necessary, and that was the
cumulative effect of a 12
year sentence for the two offences. In
S
v Kruger
[12]
,
the SCA stated that a failure to factor in the cumulative effect of
the number of years’ imprisonment imposed, cannot be
justified
on the basis that it was inappropriate to order the sentences to run
concurrently because they were committed at different
places and at
different times. The offences were committed 8 days’ apart and
both occurred in Stellenbosch. I agree with
Wille J in
Willemse
[13]
where he holds 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”.
22.
The failure to consider the cumulative effect of 4 years’
imprisonment for the theft
plus 8 years for the robbery aggravating,
rendered the sentence of 4 years disproportionate in the
circumstances of the appellant
and the facts of the matter, in that
it was theft of a jacket valued at R250. In the circumstances,
interference on appeal is warranted.
23.
In respect of the robbery with aggravating circumstances, the
regional magistrate was correct
in finding substantial and compelling
circumstances warranting a deviation from the prescribed minimum
sentence of 15 years’
imprisonment. The submission that the
regional magistrate should have deviated further, would in my view
over-emphasise the appellant’s
personal circumstances and make
light of the seriousness of the offence, where the unsuspecting
complainant was confronted in the
early hours of the morning by the
appellant who was armed with a knife. The sentence of 8 years, which
is in effect slightly more
than half of the prescribed minimum, does
not warrant interference on appeal.
24.
In the result, the appeal is upheld. The order of the court
a quo
is replaced with the following
:
(a)
Count
1: Theft - Four (4) years’ imprisonment
Count
2: Robbery with aggravating circumstances as intended in Section
1
Act 51
of 1977 – Eight (8) years’ imprisonment
(b)
The
cumulative sentence of 4 years on count 1 (theft) and 8 years on
count 2 (robbery with aggravating circumstances), shall run
concurrently in that the 4 years shall run concurrently with the 8
years’ imprisonment, so that the effective period of the
sentence is 8 years’ direct imprisonment.
M. PANGARKER
Acting
Judge of the High Court
C.M.
FORTUIN
Judge of
the High Court
Appearances
:
For
Appellant: Adv M Calitz
For
State: Adv L Snyman
[1]
Exhibit B
[2]
[2005] ZASCA 127
at par 10
[3]
See
S v Sadler
2000 (1) SACR 331
(SCA) at par 8
[4]
See
S v Zinn
1969 (2) SA 537
(A) at 540 G
[5]
Henry and Another v S
[2020] ZAWCHC 12
at par 12
[6]
Record, pages 31-32
[7]
[2021] ZAWCHC 92
at par 19
[8]
See page 31 of the record
[9]
See Hiemstra’s Criminal Procedure, A Kruger, Issue 12, at 27-3
[10]
See
S v Jacobs
2015 (2) SACR 370
(WCC);
S
v Matiwane
2013 (1)
SACR 507
(WCC) at 509
[11]
See exhibit B-the appellant was released on parole on 21 February
2011
[12]
2012 (1) SACR 369
(SCA) at par 9 - paraphrased
[13]
Par 8 of the judgment