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[2016] ZAGPJHC 250
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Davies v S (A337/2015) [2016] ZAGPJHC 250 (1 April 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
number: A 337/2015
In
the matter between:
DAVIES,
ETHEN
RINALDO
Appellant
and
THE
STATE
Respondent
JUDGMENT
SATCHWELL J:
INTRODUCTION
1.
Appellant was charged
with
robbery with
aggravating circumstances but pleaded guilty to a lesser count of
theft of a motor vehicle. He was convicted on those
facts set out in
his own section 112(2) statement made in terms of the
Criminal
Procedure Act, 51 of 1977
. He was sentenced by the trial court to
serve a period of five years imprisonment. With leave of the Supreme
Court of Appeal, he
appeals the sentence imposed upon him.
2.
The background to the
offence to which the appellant pleaded guilty was set out in the
section 112
statement:
“
The accused
pleads guilty to the charge of theft and admits and states as
follows:
1.
I understand the charge against me and
plead guilty of my own free will. I have not been influenced to plead
guilty.
2.
Having studied the case docket in this
matter I admit the following events:
2.1.1.
At approximately midnight on 9
August 2012 Mr Jeffery Mohlopheki Selahle and Ms Thuto Morero were
seated in a Mercedes Benz motor
vehicle of Mr Selahle next to a
street in Orlando;
2.1.2.
One Cecil Mafika Tshabalala and one Nathi
Emmanuel Nyembe, each armed with a fire arm, approached the vehicle
of Mr Selahle, pointed
the fire arms at the two people in the vehicle
and took control thereof, keeping the two victims in the rear seat of
the vehicle,
thus committing the crimes of robbery and kidnapping;
2.1.3.
The next day, the 10
th
August 2012, Tshabalala, Nyembe and one Vusimuzi Norris Nkosi made
attempts to sell the vehicle;
2.1.4.
Nkosi, who knows me since I have done work
for him on a motor vehicle called me and by telephone told me that he
had a motor vehicle
for sale and that it was a Mercedes Benz;
2.1.5.
I was not interested in the vehicle and
declined the offer of Nkosi;
2.1.6.
During the same day one Patrick
Tshabalala., for whom I had done work on motor vehicles such as
servicing his cars, called me;
2.1.7.
Patrick Tshabalala indicated to me that he
had been made aware of the Mercedes Benz which had been offered for
sale and that Nkosi
had told me thereof;
2.1.8.
He, Patrick Tshabalala indicated that he
wanted to buy the vehicle but that he was in Durban and had made
arrangements with William
Diale to pay an initial amount of
R30 000-00 over to the sellers and to collect the vehicle,
requesting me to assist William
Diale;
2.1.9.
It seemed suspicious to me that Nkosi would
have a Mercedes Benz and admit that I foresaw the possibility that
the Mercedes Benz
had been stolen and, despite this I agreed to
assist as requested by Patrick Tshabalala;
2.1.10.
William Daile and I then made arrangements
by cellular phones regarding the transaction regarding the Mercedes
Benz namely where
and when he will take possession thereof and I
relayed the arrangements to Nkosi by cellular phone;
2.1.11.
In terms of the arrangements the
transaction would take place at the Shell garage in Naturena,
Johannesburg and, as a result of
these arrangements the following
took place on the same day:
2.1.12.
Nkosi, accompanied by Tshabalala and
Nyembe, arrived in Naturena with two cars, one being the Mercedes
Benz of Mr Selahle;
2.1.13.
Diale arrived accompanied by his brother;
2.1.14.
I took possession of the Mercedes Benz
around the corner from the Shell garage and drive it to the garage
itself, approximately
50 paces away;
2.1.15.
There I received the amount of R30 000-00
from Diale and I walked back to where the other three were waiting.
2.1.16.
When I reached them I handed the money over
to them;
2.1.17.
Diale took the Mercedes Benz and drove off
while his brother drove the vehicle in which the two of them had
arrived;
2.1.18.
The other three took the money and Nkosi
gave me R 500-00 for my efforts and drove off and I went home;
2.1.19.
Subsequently Tshabalala, Nyembe and Nkosi
were arrested and, upon being questioned they directed the police to
me. When I was questioned
I directed the police to Diale. Eventually,
after Diale had given the police the run-around for a while the
vehicle was recovered
where Diale had parked it at his sister’s
house in Ruimsig.
3.
In the mean-time other events had
also taken place of which I was unaware:
3.1.1.
The victims of the robbery and kidnapping
had been taken to a shack;
3.1.2.
Ms Morumo was raped by the person who was
supposed to guard them;
3.1.3.
Mr Selahle was taken to a veld near
Noordgesicht where he was shot and killed.
4.
I admit that, although I did not know it
for a fact, I foresaw the possibility that the Mercedes Benz was a
stolen motor vehicle
and that, despite this I still assisted Nkosi in
selling the vehicle and that I am therefore guilty of theft of this
vehicle.”
3.
It is the decision by
the learned trial judge not to impose a sentence of correctional
supervision but to impose a sentence of direct
imprisonment for a
period of five years which has given rise to this appeal.
THE PRE-SENTENCE
REPORT
4.
The appellant did not
give evidence. Neither the defence, the prosecution nor the court had
any opportunity to enquire as to those
matters which were raised on
appeal or in respect of which the court was asked to make certain
findings. I refer, for instance,
to the averment that the appellant
showed remorse by reason of his plea of guilty, that his employment
should favourably impact
on any sentence imposed when no one had any
idea as to why he had taken an active part in this offence.
5.
Instead a
pre-sentencing report was obtained. Of course, that which is
contained in the pre-sentencing report is hearsay –
either as
to that which the appellant said or believed or that which family
members said or believed. The maker of the original
statements were
neither questioned nor cross-examined. The author of this report was
merely repeating that which was said to her
by third parties.
6.
Similarly, the author
of that report did not give evidence and was not available to clarify
any of the issues which were left unexplored.
7.
I note that the author
of the report holds qualifications in journalism and labour relations
and has been employed by the Department
of Correctional Services
since 1996. This perhaps explains the complete absence of any
indication of critical thinking around the
issues with which the
report is (or should have been) concerned or critique of the
statements made by the persons to whom the author
spoke. This is no
more than a compilation of information supplied by interested persons
such as the appellant and his family with
one comment from the one
living victim.
8.
The report was clearly
directed to support one purpose only - “should the court decide
to impose a sentence of Correctional
Supervision in terms of
section
276
(1) (h) of the
Criminal Procedure Act, the
following conditions
are recommended” (para 1.4.2 at page 149 of the Record). There
was no exploration of appropriate sentences
imposed in similar
situations, other sentences which might be considered or even why
correctional supervision would be appropriate.
The report essentially
did no more than look at the conditions to be attached to an order of
correctional supervision.
9.
I note that the author
of the report spoke to the rape survivor who was the surviving victim
of the armed robbery and kidnapping.
It is recorded that “Thuto
does not mind supervision sentence if it would make the accused a
better person who does not mingle
with wrong people”. This
recordal indicates one of two possibilities: either the author did
ask Ms Morero about her experience,
the impact upon her of these
criminal actions and her view on sentencing options but failed to set
them out in her report (one
of the great disadvantages of hearsay) or
the author did not ask Ms Morero about anything other than
correctional supervision which
indicates a report directed to one
achievement only.
10.
It was argued that
appellant “would be a suitable candidate for a sentence of
correctional supervision”. That is not
correct. No enquiry was
conducted. There was only a compilation of information to ascertain
what conditions could be attached thereto.
SENTENCE OF THE
COURT
A QUO
11.
In dealing with the
submissions made on behalf of appellant which deal with certain of
the comments of the learned judge in the
court
a
quo
, I will also be
covering some of the reasoning which leads to my conclusion as to the
appropriate sentence to be imposed on the
appellant.
Misdirections
12.
It is submitted that
there are a number of material misdirections on the part of the
sentencing judge which justify interference
by this appeal court with
the sentence which was imposed.
13.
(1) In the course of
argument, the learned judge commented on the supposed value of the
Mercedes Benz which was the subject matter
of the theft to which
appellant pleaded guilty. This is criticized as mere speculation on
the part of the learned judge. In his
judgment on sentence, the
learned judge commented “no evidence was tendered regarding the
value of the car, but it is common
knowledge that the car is a luxury
high performance German car which costs in the region of R
1 000 000”.
14.
It is difficult to
disagree that, by definition and human experience, a Mercedes-Benz is
a luxury brand of motor vehicle. The value
may range perhaps from
R600 000 to R 2 million. The value itself is irrelevant to the
crime of the theft of a motor vehicle.
On the facts before us, as set
out in the
section 112
statement, a robbery with aggravating
circumstances, kidnapping, murder and rape were committed by those
who were after the motor
vehicle with which appellant was entrusted
to deal. Those engaged in this series of offences were concerned to
acquire a motor
vehicle of some value. I should point out that the
learned judge made no reference to Act 105 of 1997 which would have
led to a
minimum sentence if the value of the vehicle was considered
to be material. I cannot find that such comment (or speculation if
indeed it was) leads to the learned trial judge having committed any
misdirection.
15.
(2) The learned trial
judge is criticized for having commented in argument that this
offence appeared to involve a ‘syndicate’
– a
“syndicate in the sense that it involves more than one person”.
In his judgment on sentence the learned judge
referred to the
“meticulous planning and execution” involved which
required a part to be played by no less than “7
or more
persons”.
16.
The section 112
statement of the appellant is of assistance. There, reference is made
to the roles played by Cecil Tshabalala, Nathi
Nyembe, Vusimuzi
Nkosi, Patrick Tshabalala, William Diale and the brother of Diale as
well as the appellant. Appellant interacted
with each one of those
persons - Nkosi telephoned him, Patrick Tshabala telephoned him,
appellant and Diale made arrangement by
telephone, appellant met with
Nkosi, Cecil Tshabalala and Nyembe and at the same time met with
Diale and his brother. It is difficult
to see how this conspiracy
does not constitute a ‘syndicate’ as understood by the
Oxford English Dictionary –
“an association of business
enterprises or individuals organised to undertake a joint project”
or “any association
formed to carry out an enterprise or
enterprises of common interest to its members”. This use of the
word bears no relation
to its own particular and peculiar definition
as contained in the Prevention of Organised Crime Act.
17.
(3) The learned trial
judge stated in his sentencing judgment that the ‘purchase
price’ of R 30 000 was paid to
the appellant. Of course,
the learned judge was incorrect – it was, according to
appellant, a deposit or ‘initial purchase
price’ of R
30 000 which was paid over to him by the purchaser for the
appellant to then hand over to the kidnappers,
robbers, murderers and
rapist.
18.
But I have had to ask
myself whether such incorrect statement of price is of any relevance
or material. The appellant did not disclose
the ultimate purchase
price to be exchanged between criminals. There is no indication as to
how the balance of the purchase price
(if any) was ever to be paid.
But where does this take the appeal? In his section 112 statement,
the appellant said that “it
seemed suspicious to me that Nkosi
would have a Mercedes Benz and I admit that I foresaw the possibility
that the Mercedes Benz
had been stolen...”. There is no
indication that it was the amount of the deposit alone which led to
the suspicions –
indeed everything set out by appellant in his
section 112 statement indicates suspicious activity.
19.
(4) The learned judge
made reference at the hearing and during argument to certain
photographs with which he had obviously been
provided and which
appear to have indicated that the Mercedes Benz was an AMG model.
Such photographs had not been handed in as
evidence and appellant’s
attorney placed this on record.
20.
It is unfortunate that
the learned judge had been given a file which may have contained this
and other exhibits. The prosecution
has an unfortunate habit of being
too eager to prepare the court. But I have to ask what difference
sight of these photographs
could possibly have made to the sentencing
process? It is common cause that the vehicle is a Mercedes Benz. Does
it matter if it
is an AMG or a GLE or an SLK model? I cannot see that
it does. After all it is common cause that it was not a Ford Escort
worth
no more than R 5 000 which was hijacked and for which its
occupants were to suffer so grievously. It was a luxury vehicle and
the initial deposit paid in cash within 24 hours was the sum of R
30 000.
21.
(5) A further alleged
misdirection on the part of the sentencing judge are his comments
that appellant showed “lack of insight”
by reason of his
“persistence that he played only a small role because he had no
knowledge of the hijacking, rape and murder
and therefore he is
guilty only by
dolus
eventualis
”.
The court commented that “he clearly does not take
responsibility for his conduct” and therefore “rehabilitation
as a factor is therefore less likely. He is clearly not remorseful at
all”. It is submitted that the comments by the learned
judge
fly in the face of the basis upon which the appellant pleaded guilty
and which basis was accepted by the State.
22.
The difficulty for both
the trial court and this appeal court is that there is no ‘basis
set out’ which explain why
the appellant pleaded guilty. The
section 112 statement and the absence of any evidence, fail to
explain what is to be understood
by this plea. I have had occasion in
S v M
2007
(2) SACR 60
W to discuss in great detail all the authorities which
deal with a plea of guilty and speculation as to remorse. A plea of
guilty
may be no more than recognition of the overwhelming nature of
the evidence against the offender, the ability to obtain a deal of
being convicted of a considerably lesser offence of theft (with no
minimum sentence) as opposed to the main count of robbery with
aggravating circumstances (with a minimum sentence of 15 years). One
does not know unless one has regard to the evidence before
the court.
23.
As to insight, the only
apparent indication thereof is set out in the hearsay of the
presentencing report where the comment is found
that “he
regrets his actions and feels bad about the deceased who died for his
vehicle”. Appellant has expressed regret
for the murder –
but not for the kidnapping, robbery, rape or the theft in which he
played the leading intermediary role.
Correctional
Supervision
24.
Appellant’s
counsel has submitted that the learned trial judge never seriously
considered either form of correctional supervision
as a sentencing
option in this matter. This appears from the remarks made the
judge in argument - “since when has 276
correctional
supervision ever been the going rate for car theft?”, it would
be no more than a “slap on the hand”,
“even if
Jesus Christ committed hijacking he would never get 276” and
(addressed to the prosecution) “why do
you go and enter into an
agreement where you give a sentence of 276 to Diale which is
virtually a suspended sentence, which is
like for shoplifting, just
tell me?”.
25.
I appreciate that the
reference to Jesus Christ, who many consider to be the Son of God,
was most unfortunate. However, the remainder
of the remarks are
apposite for the cut and thrust of debate which is the purpose of
argument when each adversarial legal representative
tries to persuade
judge of a legal position.
26.
The learned judge is
correct to ask for authorities where other courts have found that
correctional supervision is an appropriate
sentence for cases of car
theft in circumstances such as these. This appeal court asked for
such guidance – but we could
not be directed to any reported or
unreported decision where correctional supervision was imposed in
respect of car theft. Perhaps
that is because our courts have
repeatedly stressed that theft of a vehicle (in circumstances such as
those set out in the section
112 statement) is taken very seriously
indeed and correctional supervision would indeed be regarded as
a mere ‘slap
on the wrist’.
27.
This appeal court was
addressed on the need to ensure consistency and it was pointed out
that Diale, a co-accused and co-conspirator
of appellant, was given
the opportunity to enter into a plea and sentence agreement in terms
of
section 105A
of the
Criminal Procedure Act. That
agreement is a
deal achieved as the result of negotiations referred to in the
agreement. Diale pleaded guilty to theft and was
sentenced to serve a
term of five years imprisonment in terms of
section 276(1)(i)
of the
CPA. I bear in mind the following. Firstly, each case must be decided
on its own facts and each sentence must be personalised.
Secondly,
Diale negotiated both plea and sentence. Thirdly, Diale’s facts
are different e.g. the purchase is stated to be
R 30 0000. Fourthly,
an agreement in terms of
section 105A
is a process imported from the
United States, involves negotiations on facts and offences and
sentence and other matters which
usually pertain to the giving of
evidence as a state witness in circumstances where the prosecution
needs such a witness and, for
that reason, is prepared to have a
co-conspirator treated more leniently. Finally, exact congruence on
sentence is never possible
to achieve – not even when the court
can weigh gram upon gram of cocaine with the years of imprisonment to
be served. This
may be unfortunate but it may also allow for
individualisation of all circumstances, offences, offenders and
victims.
Conclusion
28.
I appreciate that the
learned judge was not always temperate with his words, that he had
insight into one or more photographs which
were not evidence before
the court, and that he was wrong on the purchase price as opposed to
the deposit on the purchase price.
But, I have had to ask in what
manner these ‘misdirections’ (if they are indeed
misdirections) are relevant to the
outcome of the sentencing process?
Did the supposed value of the luxury vehicle lead to an excessive
sentence? Did the supposed
purchase price of the luxury vehicle lead
to a sentence out of all proportion to the offence? Did the rejection
of correctional
supervision as an appropriate sentence lead to a
sentence which was unfair and unjust in all the circumstances?
29.
I find it difficult to
conclude that the learned trial judge misdirected himself on
sentence.
30.
When I have regard to
the judgment on sentence, I cannot find any misdirection on the facts
which he set out as the circumstances
of the crime. I do not disagree
that there were at least 7 persons playing “a vital role in
executing the enterprise”.
There is nothing to indicate that
the learned judge was wrong in finding that appellant “remains
unremorseful and maintains
that he had no actual knowledge of the
hijacking, murder and rape – he only suspected that the car was
stolen. In my view
he lacks insight of the seriousness of his crime”.
31.
The learned judge found
that imposition of a suspended sentence or correctional supervision
will “bring the system of justice
into disrepute …..
[because appellant] played a vital link in the web of criminality
involving the stealing or vehicle hijacking
luxury motor vehicles and
selling them to ready purchasers”.
32.
It is against this view
of correctional supervision that the appeal is mainly directed.
SENTENCE
33.
The purpose of
sentencing offenders is generally understood to be that of deterrence
– both individual as to the offender
and general as to members
of the wider community, punishment or chastisement of the offender,
and rehabilitation of the offender.
To achieve such purposes, a
sentencing court must take into account the offence which has been
committed, the personal circumstances
of the offender and the
interests of the society against whom the offence has been committed.
34.
It is accepted that
wide range of possible sentencing options are always available and
should be considered in respect of all offences.
But equally so, it
would not be necessary for a court to give full and proper
consideration to each and every extant sentencing
option where some
of such options are grossly disproportionate to the purposes of
sentencing or the interests to be taken into
account. Thus, a
sentencing court would not spend time discussing imposition of a fine
in money on a person convicted of murder.
There must be an innate
coherence between the offence, the offender and the needs of
society.
35.
I need not repeat the
many comments by our courts to the effect that vehicle theft is
serious and prevalent and must be treated
accordingly.
36.
There was much argument
on the import of the plea of guilty by appellant. As I indicated, I
have previously dealt with this in great
detail in
S
v M supra
.
37.
In the present
instance, the lack of remorse on the part of appellant can be found
in his actions. He acted as the intermediary
between robbers and
murderers and the purchaser of the stolen vehicle. Both sides of the
equation dealt directly with him. He made
arrangements with both
sides, he handed over the money and took possession of the vehicle.
Apparently, both sides felt he was essential
to a satisfactory
outcome of the acquisition and disposal of the vehicle.
38.
Yet, what did the
appellant do or leave undone? Once he was phoned by Nkosi and
Tshabalala, appellant did not contact the SAPS regarded
the
possibility of apprehension of the persons in possession of a stolen
vehicle. Once he had his suspicions, he took no steps
to bring the
perpetrators to justice – he did not enable the SAPS to set up
a trap to capture the syndicate redhanded. Once
he had enabled and
overseen the handover of vehicle and money, he did not report to the
SAPS and enable them to apprehend any of
the persons involved. He did
nothing at all. There was no remorse whatsoever. He accepted the
monies he says he was given for his
services. He carried on his life.
It was only when he was arrested and he realised that the robbers had
been arrested that he directed
the SAPS to the purchaser. As is said
“there is no honour amongst thieves”. Those were the
circumstances and the factual
background, against which this court is
asked to speculate on remorse on the part of the appellant.
39.
A plea of guilty does
not always indicate remorse. In this case, appellant was able to
evade a conviction on an offence which carries
a minimum sentence of
fifteen years imprisonment.
40.
It can never be said
that it would be a waste of the time of the court to hear a full
trial – everyone has a Constitutional
Right to a fair trial
which includes confronting ones accusers – and no one can ever
say that a fair trial is a waste of
the time of a judge, prosecutor
or anyone else; similarly no one can ever disadvantage a person who
exercises his or her Constitutional
rights by insisting on a trial.
41.
The accused is a first
offender. The accused has three children. The accused is in
employment. He should have thought of all this
before he engaged in
criminal activity. First offenders do get sent to prison. Fathers and
mothers with children who do (and do
not) live with them do go to
prison. Persons in employment are amongst the fortunate minority in
this country who are not thereby
relieved from the consequences of
criminal actions.
42.
Dolus eventualis
is indeed a mitigating factor. It
perhaps explains why the sentence imposed by the court
a
quo
was not a
sentence of 7 or 8 or 9 years imprisonment.
43.
I see nothing to
suggest that a sentence of 5 years imprisonment is shocking or
inappropriate to the facts of this crime, the personal
circumstances
of this accused or the concerns of the community. I see nothing to
suggest that this sentence is out of touch with
the sentences imposed
throughout the country and by the highest court in respect of theft
of motor vehicles.
In the result an order is
made as follows:
1.
The appeal is
dismissed; and
2.
The appellant is to
hand himself over to the SAPS by 12h00 on Monday 04
th
April 2016.
DATED
AT JOHANNESBURG 01
st
APRIL 2016
____________________
SATCHWELL
J
I
agree.
____________________
MASIPA
J
I
agree.
____________________
MASHILE
J
Counsel
for Appellant: Adv L Fick
Attorneys
for Appellant: Johan Schaeffer Attorney
Counsel
for Respondent: Adv VH Mongwane
Attorneys
for Respondent: Director of Public Prosecutions
Dates
of hearing: 18
th
March 2016.
Date
of judgment: 01
st
April 2016.