About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2015
>>
[2015] ZASCA 151
|
|
Jansen v The State (40043/14; 229/14) [2015] ZASCA 151; 2016 (1) SACR 377 (SCA) (2 October 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
THE
S
UPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case Nos: 20043/2014 & 229/2014
In the
matter between:
DENISE
CINDY-LEE JANSEN
FIRST
APPELLANT
MARCO
RUDOLF BARNARD
SECOND APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Jansen
v The State
(20043/14
& 229/14)
[2015] ZASCA 151
(2 October 2015)
Coram:
Maya DP, Theron and Mathopo JJA
Heard
:
9 September 2015
Delivered:
2 October 2015
Summary:
Criminal Procedure
─ Plea and sentence agreements in terms of
s 105A
of the
Criminal Procedure Act 51 of 1977
─ trial court erred in
imposing a sentence contrary to that contained in the plea agreements
without advising the State and
the accused that it was of the opinion
that the proposed sentence was unjust as contemplated in
s 105A(9)
of
the Act.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Webster J sitting as court of
first instance):
1. The appeal
is upheld.
2. The
convictions and sentences are set aside.
3. The
matter is remitted to the Gauteng Division of the High Court,
Pretoria for trial
de
novo
before another
judge.
JUDGMENT
Mathopo
JA (Maya DP and Theron JA concurring):
[1] The
question for determination in this appeal is whether a trial court
may deviate from a plea and sentence agreement presented
to it in
terms of
s 1
05A of the Criminal Procedure Act 51 of 1977 (the Act),
without advising the parties that it was of the opinion that the
proposed
sentence is unjust.
[2] In
the Gauteng Division of the High Court, Pretoria (Webster J), the
first appellant, Ms Denise Cindy-Lee Jansen (Ms Jansen),
pleaded
guilty to charges of murder and child abuse in terms of s 305(3)(A)
read with ss 1 and 305(6) of the Children’s Act
38 of 2005, the
Children’s Act (child abuse or neglect). The second appellant,
Mr Marco Rudolf Barnard (Mr Barnard), pleaded
guilty to culpable
homicide. These pleas were in terms of their plea and sentence
agreements concluded with the State (the agreements).
Attached to the
agreements were the plea explanations which fully set out the factual
and legal bases of the said pleas. Other
documents forming part of
the agreements were the post mortem report and relevant information
relating to the appellants’
mitigating and aggravating factors.
[3] It
is necessary to briefly set out the relevant background, which was
undisputed, leading to the charges being preferred against
the
appellants. On 4 March 2014 the appellants, who lived together as
husband and wife and were legally represented, were arraigned
in the
high court, inter alia, on the charges mentioned above. They were
alleged to have assaulted Ms Jansen’s two minor
children from a
previous relationship, five year old A. J. (deceased) and his older
brother S. E., on numerous occasions, and subsequently
causing A.’s
death. The assaults were, inter alia, committed by hitting the
children with various objects including a belt,
wooden stick, by
burning them with cigarettes. They were also alleged to have failed
to provide them with proper food and medical
care. The deceased had
also been locked indoors for prolonged periods.
[4] In
terms of the agreement, Ms Jansen agreed to be sentenced to 18 years’
imprisonment for count 1 (murder) and 3 years’
imprisonment in
respect of count 2 (child abuse). The sentences would be served
concurrently with the result that she would serve
an effective
sentence of 18 years’ imprisonment. Barnard agreed to be
sentenced to 12 years’ imprisonment for culpable
homicide,
conditionally suspended for five years.
[5] At
the beginning of the trial, the prosecutor, acting in terms of s
105A(4)
(a)
,
[1]
informed the judge that the State and the defence had concluded plea
and sentence agreements. The prosecutor advised the court
that the
formal requirements placed upon the State in terms of the Act, had
been complied with. These requirements included consultation
with the
investigating officer and the family of the deceased and the
protection of the appellants’ constitutional rights
to a fair
trial. In particular, he advised the court that the appellants’
rights to remain silent, to be presumed innocent
and not give
incriminating evidence were safeguarded.
[6] The
prosecutor then read the contents of the agreements into the record.
Thereafter, the charges were put to each appellant.
The prosecutor
explained to the court that four of the charges against the first
appellant were being withdrawn with the result
that she was only
facing the charges of murder and child abuse. The court was advised
that the State only intended proceeding with
the charge of child
abuse against the second appellant. The court then put questions to
the appellants in order to ascertain whether
they understood the
charges against them and the contents of the agreements and that they
had entered into the agreements freely
and voluntarily. After
confirming their pleas, the trial judge handed down a brief judgment
in terms of which he convicted the
appellants in accordance with the
agreements.
[7]
Counsel for the State and the appellants addressed the court in
respect of sentence. They both submitted that the sentences
proposed
in the agreements were just and urged the court to impose such
sentences. It appears from the record that the judge indicated
he
needed time to consider an appropriate sentence as ‘this is a
very serious offence and one which has resulted in the loss
of a very
young life’. The matter was adjourned, at the instance of the
judge, to 6 March 2014.
[8] On 6 March
2014, the court delivered its judgment on sentence. In this judgment
the court had regard to the nature of the offences,
stating that
these crimes would ‘shock society’. The court also noted
the purpose of sentence and that ‘the court
has to determine
what the appropriate sentence is’. The court expressed the view
that it ‘is as a rule not bound by’
pleas and sentence
agreements and:
‘
In determining
an appropriate sentence the court has to take into account . . . the
personal circumstances of the accused. The court
must take into
account the gravity of the sentence and interests of society. The
court is of the considered view that the agreed
sentence will be
considered as being extremely light by the majority of the members of
society.’
[9] Contrary
to the sentences proposed in the agreements the trial court imposed
the following sentences on Ms Jansen:
Counts 1 and 2
were taken together for purposes of sentence. She was sentenced to
fifteen (15) years imprisonment of which three
(3) years are
suspended for a period of five (5) years on condition that she is not
convicted of a crime of which violence is an
element.
Mr Barnard was
sentenced to fifteen (15) years imprisonment of which three (3) years
were suspended for a period of five (5) years
on condition that he is
not convicted of a crime of which violence is an element.
[10] The
sentences imposed by the trial judge differed materially from those
proposed by the parties. Ms Jansen would receive an
effective six
years’ imprisonment less than what was proposed. On the other
hand, Mr Barnard would receive an effective sentence
of two years’
imprisonment more than what was proposed in the agreement.
[11]
Dissatisfied with this, the appellants applied for leave to appeal
from the trial judge. The State also applied for the reservation
of a
question of law in terms of s 319 of the Act in the following terms:
‘
Was it
permissible for the trial court, in dealing with a section 105A of
Act 51 of 1997 plea and sentence agreement, to proceed
to impose
sentences differing from the sentences proposed by the prosecution
and the defence in the written agreement, without
informing the
prosecution and the defence that the court is of the view that the
proposed sentence is unjust as contemplated in
section 105A(9)
(a)
of Act 51 of 1997.’
[12] The
trial judge granted leave to appeal to this court and reserved the
question of law for decision on appeal. The present
appeal is in
essence confined to the question of law thus reserved.
[13]
Before us it was contended on behalf of both sides that the trial
court committed a number of fundamental irregularities. He
failed to
comply with the provisions of s 105A(9)
(a)
by not informing the parties that he was of the view that the
sentence agreements were unjust, and neglected to inform them of
the
sentences which he considered just.
[14]
Counsel for the State submitted that the trial court should first
have determined whether the sentences they proposed were
just before
convicting the appellants. Failure to do so, so it was argued,
resulted in the parties not being able to exercise their
options in
terms of s 105A(9)
(b)
.
[15] The
parties differed only in respect of the remedy which this court
should grant. The State contended that we have enough material
before
us to impose sentence. It was argued, inter alia, that the appellants
would be prejudiced if the matter starts
de novo
whilst the
appellants sought a remittal of the matter to the trial court to
afford them an opportunity to commence proceedings
de novo
.
[16] The
purpose of the plea bargaining process is to afford the parties, in
advance, an opportunity to make an informed decision
regarding
whether to agree to and abide by the agreement. This process entails
consultation with all the people involved in the
offence, the
accused, the complainant, the victim and stakeholders which the
prosecution deem relevant for the proper determination
of the
sentence. Evidently, once plea negotiations are entered into and, in
the spirit of transparency, the accused will make his
defence known
to the State which will, in turn, make available the contents of its
dockets to the accused. In that way both parties
will have a fair
idea of each other’s case. The negotiations are conducted in
the spirit of give and take the accused will
make certain concessions
and if the State is satisfied with his explanation, it will then
accept the negotiated plea on the basis
of the available facts. There
is no doubt that a properly negotiated plea will yield a result which
is transparent to all the stakeholders
and one that is in the
interests of justice.
[17] It
is in the interests of justice that the plea bargaining mechanism
contemplated in s 105A(1) should be encouraged. See
S
v Esterhuizen & others
.
[2]
In
S v Saasin &
others
[3]
Majiedt J had occasion to pronounce on the purpose of this
legislation. He said:
‘
This
particular provision has as its objective victim participation in the
plea bargaining process. To my mind this is an absolutely
essential
cog in the machinery of plea bargaining and plea agreements ─
it lends legitimacy and credibility to the process.
As Du Toit
et
al
, Commentary on the
Criminal
Procedure Act, correctly
observe at 15-11, it not only accommodates
the personal interests of the victim, but also serves the broader
interests of the
criminal justice system and
society. The following view expressed by Bekker in
1996 CILSA 168
at
209 is apposite:
“
The other
interests advanced by giving the victim a right to participate in the
plea bargain are society’s interests. Society
benefits from
victim participation in plea bargains in two ways. The first is that
according to the victim the right to participate
will result in more
information being provided to the decision-maker. The second benefit
which accrues to society from victim participation
in plea bargains
is that it promotes the effective functioning of the criminal justice
system. The theory is that if victims are
not consulted regarding the
plea bargain and so feel irrelevant and alienated, they will not
cooperate in reporting and prosecuting
a crime. As a result, the
system, which is dependent on them, functions less effectively.
Therefore, making victims feel their
contribution is critical,
regardless of its actual value, will motivate the victim to continue
to report crime and cooperate in
its investigation and prosecution.”
Affording victims a
say in the plea bargaining process furthermore enhances transparency
and lends credence to the adage that justice
must manifestly be seen
to be done.
’
[18] Where a
court is of the opinion that the sentence is unjust, ss 9
(a)
and
(b)
of the Act are triggered. The provision of s
105A(9)
(a)
-
(d)
of the Act read as follows:
‘
9
(a)
If the court is of the opinion that the sentence agreement is unjust,
the court shall inform the prosecutor and the accused of
the sentence
which it considers just.
(b)
Upon being informed of the sentence which the
court considers just, the prosecutor and the accused may─
(i) abide by the
agreement with reference to the charge and inform the court that,
subject to the right to lead evidence and to
present argument
relevant to sentencing, the court may proceed with the imposition of
sentence; or
(ii) withdraw from
the agreement.
(c)
If
the prosecutor and the accused abide by the agreement as contemplated
in paragraph
(b)
(i),
the court shall convict the accused of the offence charged and impose
the sentence which it considers just.
(d)
If
the prosecutor or the accused withdraws from the argument as
contemplated in paragraph
(b)
(ii),
the trial shall start de novo before presiding officer: Provided that
the accused may waive his or her right to be tried before
another
presiding officer.’
[19]
Under this provision the parties have an election. The court must
first inform the prosecutor and the accused of the sentence
that it
considers just. Upon being informed of the sentence which the court
considers just, both parties may decide to abide by
the agreement
subject to the right to lead evidence and to present argument
relevant to sentencing or withdraw from the agreement.
If both
parties decide to abide by the agreement after being advised by the
trial court that it intends imposing a different sentence
to the one
agreed upon, the court will be at large to impose a sentence which it
considers just. In that event the parties cannot
then complain that
they have been prejudiced because they would have been given adequate
notice. As soon as the trial judge formed
the view that the sentences
proposed in the plea agreements were unjust, he should have so
informed the parties and also of the
sentence he considered just, at
the outset of the trial. This would have afforded them an opportunity
to consider their options.
This is especially so because after
convicting them, there is nothing that they could do save to appeal
the decision. They were
thus denied the option of making an informed
choice.
[20]
This approach is clearly contrary to the objectives of the Act. In
S
v Solomons
[4]
para 11, Moosa J held as follows:
‘
The
purpose of making such information known is to enable the parties to
make an informed choice whether to abide by the plea-bargaining
process or to resile therefrom. The failure on the part of the
presiding officer to do so, in my view, constituted non-compliance
with the peremptory provisions of subsection 105A(9)
(a)
.’
For all
the abovementioned reasons the appeal must be upheld and the answer
to the question of law is that the high court was wrong
as indicated
above.
[21] The
question that I now turn to, as mentioned in para 15 above, is
whether the above misdirection constituted vitiating irregularity
warranting that this court should set aside the proceedings and order
a retrial or implement the original agreement between the
parties.
Counsel for the State urged us to follow the latter course. He
submitted that a retrial would prejudice the appellants
as they would
lose their privileges as sentenced prisoners. Furthermore, that the
family of the deceased would also be prejudiced
because they would
have to attend the new proceedings. In the alternative he argued that
since the appellants are only attacking
the sentences imposed, this
court can invoke the provisions of s 322(1) of the Act
[5]
and substitute the order of the high court on appeal for the plea and
sentence agreements. I do not agree.
[22] The
provisions of s 105A(6)
(a)
of the Act are clear and
peremptory. The section states that the court shall question the
accused to establish whether:
‘
(i) he or she
confirms the terms of the agreement and the admissions made by him or
her in the agreement;
(ii) with reference to the
alleged facts of the case, he or she admits the allegations in the
charge to which he or she has agreed
to plead guilty; and
(iii) the agreement was
entered into freely and voluntarily in his or her sound and sober
senses and without having been unduly
influenced.’
A trial
court is best suited to determine whether or not an accused admits
the correctness of the charge and any allegations contained
therein.
This process includes ensuring that the accused understands the
charge he is facing and that he entered into the agreement
freely and
voluntarily whilst in his sound and sober senses. This obviously
necessitates the leading of evidence which cannot be
done by the
appellate court. Accordingly the submission that remitting the matter
to the high court will cause delay and prejudice
to the appellants
and family members cannot prevail. The matter should be remitted to
the trial court
de
novo
before another
presiding officer.
[23] I
therefore make the following order:
1. The appeal
is upheld.
2. The
convictions and sentences are set aside.
3. The
matter is remitted to the Gauteng Division of the High Court,
Pretoria for trial
de
novo
before another
judge.
______________
R
S Mathopo
Judge
of Appeal
Appearances
For Appellant:
L A van Wyk
Instructed by:
Combrink Kgatshe Inc, Rustenburg
Symington & De Kok, Bloemfontein
For
Respondent:
P W Coetzer
Instructed by:
Director of Public Prosecutions, Pretoria
Director of Public Prosecutions,
Bloemfontein
[1]
Section 105A(4)
(a)
reads:
‘The prosecutor shall, before the
accused is required to plead, inform the court that an agreement
contemplated in subsection
(1) has been entered into and the court
shall then─
(i) Require the accused to confirm that
such an agreement has been entered into; and
(ii)
Satisfy itself that the requirements of subsection (1)
(b)
(i)
and (iii) have been complied with.’
[2]
S v Esterhuizen & others
2005 (1) SACR 490 (T).
[3]
S v Saasin & others
[2003] ZANCHC 44
para 11.4.
[4]
S v Solomons
2005 (2) SACR 432
(C) para 11.
[5]
It provides:
‘
322 Powers
of court of appeal
(1) In the case of an
appeal against a conviction or of any question of law reserved, the
court of appeal may-
(a)
allow
the appeal if it thinks that the judgment of the trial court should
be set aside on the ground of a wrong decision of any
question of
law or that on any ground there was a failure of justice; or
(b)
give
such judgment as ought to have been given at the trial or impose
such punishment as ought to have been imposed at the trial;
or
(c)
make
such other order as justice may require: Provided that,
notwithstanding that the court of appeal is of opinion that any
point raised might be decided in favour of the accused, no
conviction or sentence shall be
set aside or altered by
reason of any irregularity or defect in the record or proceedings,
unless it appears to the court of appeal
that a failure of justice
has in fact resulted from such irregularity or defect.’