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[2010] ZAWCHC 154
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Petersen v S (A537/08) [2010] ZAWCHC 154 (4 June 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE NO: A537/08
In
the matter between:
MICHAEL
PETERSEN
Appellant
and
THE
STATE
Respondent
JUDGMENT DELIVERED ON
4 JUNE 2010
JAGA AJ
INTRODUCTION
1. On 11 March 2008 at
the Bellville Regional Court the Appellant was convicted of the
offences of robbery with aggravated circumstances
as intended in
terms of
section 1
of the
Criminal Procedure Act 51 of 1977
and
kidnapping.
2. Subsequent to the
aforesaid conviction on 28 March 2008 the Appellant was sentenced as
follows:
2.1. On the charge of
robbery with aggravated circumstances: 12 years' imprisonment of
which 2 years' imprisonment was suspended
for a period of 5 years on
condition that the accused is not convicted of the offence of robbery
with aggravated circumstances
which is committed during the period of
suspension.
2.2. On the charge of
kidnapping, 12 months' imprisonment. The Court ordered that the
sentence on the charge of kidnapping runs
concurrently with the
sentence of the charge of robbery with a aggravated circumstances.
3. The Appellant was
granted leave to appeal to this Court against his conviction and
sentence.
4. Counsel for the
Appellant has informed this Court that the Appellant does not intend
to proceed with the appeal against his conviction
on both the
charges. The Appellant only appeals against his sentence.
THE CHARGES
5.
At
the trial, as per the charge sheet, the State alleged that on 17
May
2004 and at Geelbos Street, Delft, the accused wrongfully and
intentionally assaulted one Flip Loubser by stabbing him with a
screwdriver
and by kicking him, and by force took from him a Nissan
1400 Bakkie and a cell phone valued at R100.00. The State further
alleged
that
on
the same day at Geelbos Street, Delft, the accused unlawfully and
intentionally deprived the complainant of his freedom of movement
by
means of dragging him out of his car and by putting him in the boot
of a BMW motor vehicle, and by driving around with him from
09h55
until 15h10.
THE FACTS
6. On the morning of 17
May 2004, the complainant went to Delft at the instance of his
ex-wife, Nicole Petersen, in his Nissan
Bakkie. The complainant and
Nicole arrived at a house in Geelbos Street, where Nicole wanted to
collect some papers at a house.
Complainant waited for Nicole in his
motor vehicle, but later decided to have tea with Nicole at the said
house.
7. Thereafter, Nicole
and the complainant got back into the latter's vehicle and drove to
a field, where Nicole got out of the
vehicle and went to a house.
Nicole did not want the complainant to join her as she felt that it
was dangerous at the house where
she went to. Complainant then
waited in his car. Nicole returned to the car.
8. A 23-year old male
then approached the complainant and asked him for a cigarette, which
he obliged him with. When Nicole got
into the car, the Appellant
also got into the vehicle with Nicole. Appellant was in possession
of a big screwdriver with a red
handle. He attacked the
complainant by stabbing him in the left upper arm. A struggle ensued
between the complainant and the
Appellant. Complainant attempted to
drive away with his vehicle, but the Appellant knocked the gear of
the vehicle out of place
which resulted in the vehicle stalling.
Appellant then removed the vehicle's keys.
9. The complainant was
thereafter pulled out of his vehicle and assaulted by the 23-year
old male who the complainant had earlier
given a cigarette. The
Appellant joined in and also kicked the complainant. Both these men
then threw complainant into the back
of his bakkie. A woollen cap
was then placed over the complainant's face.
10. The complainant's
car started again after having stalled earlier with the
complainant's assistance. The 23-year old male who
accompanied the
Appellant took the complainant's cell phone. The complainant was
thereafter driven around in his vehicle and
later he was told to get
out of his vehicle and requested to get into the boot of a BMW motor
vehicle. Whilst he was in the boot
of the BMW motor vehicle, he
heard someone driving off with his bakkie.
11. Whilst he was still
in the boot of the BMW vehicle, he was driven around until they
ended up on a bumpy road where he was
requested to get out of the
vehicle. The complainant who had earlier placed his bank debit cards
in his own vehicle was requested
to give the pin numbers thereof, or
else Nicole would be raped. His assailants also wanted him to eat
tablets which he described
as looking like snail poison tablets. He
then wrote down his debit card pin numbers and gave it to his
assailants.
12. The boot of the
vehicle was closed again and the complainant was once more driven
around in the vehicle until it ran out of
petrol in Baden Powell
Drive. In'the complainant's presence, Appellant asked the 23-year
old male to sell the complainant's cell
phone in order to purchase
some petrol. While the Appellant's acquaintance went away,
complainant had a discussion with the Appellant.
Appellant told him
that he required R10 000.00 for his daughter as she required open
heart surgery at Red Cross Hospital. The
complainant did not believe
the Appellant as according to him Red Cross Hospital does not charge
for operations. The Appellant's
23-year old acquaintance then
returned with petrol.
13. The complainant then
devised a scheme, in terms where he told the Appellant that he would
lend him an amount of R10 000.00.
He then got back into the vehicle
and more petrol was put into the vehicle, at a garage. They drove on
again and once more stopped
in Derft. Appellant's acquaintance left
the vehicle and returned 5-10 minutes later and said that the bakkie
had not been stripped
yet.
14. Appellant then
accompanied the complainant to ABSA Bank in Goodwood. This is the
bank where the complainant normally did his
banking. The staff of
the bank was well known to him. At the bank, Appellant asked a
consultant for a loan, in a tone which indicated
that
something
was amiss. Another consultant, one Conrad then took the complainant
into an office where the complainant told Conrad
that he has just
been hijacked. He requested a pencil and a piece of paper from
Conrad. On the paper he wrote that he was hijacked
and indicated
where in the parking area of the bank a BMW was standing. The
Appellant entered the office and asked him for cigarettes,
which he
gave him. Appellant then left the bank Whilst he was in the bank,
the Appellant was arrested outside the bank
15. An Inspector Smith
of the South African Police Service arrested the Appellant outside
the bank, after having earlier followed
the Appellant driving the
BMW. In the BMW, Inspector Swart found a screwdriver, a knife and a
woollen cap. These items were handed
in as exhibits at the police
station and this was confirmed by a Constable Mbobi.
16. One Andrew Samuel
Fortuin testified on behalf of the State. He confirmed that he had
lent his BMW to the Appellant on 17 May
2004 as the Appellant wanted
to take his wife to a hospital. The Appellant took his vehicle at
about 08h00. According to this
witness, when he lent his vehicle to
the Appellant he did not leave any screwdrivers or a woollen cap or
any weapons in his vehicle.
He stated that the Appellant, when he
arrived at his house, did not leave a bakkie at his place. Later
during the course of the
day, he identified his vehicle at the
police station.
17. Appellant's version
was that on the morning of 17 May 2004 he met Nicole Petersen and
the complainant at a taxi rank. The
complainant was driving his
bakkie, accompanied by Nicole. Complainant wanted some plastering
work done. He then took the complainant
to several places to see the
quality of his workmanship. From the taxi rank, complainant drove in
his vehicle a couple of streets
away, where they decided to get into
a BMW vehicle, leaving the complainant's vehicle behind.
18. Appellant stated
that he and the complainant then drove Nicole to the hospital. From
the hospital the complainant was taken
in the BMW to see the quality
of the building work Complainant in his evidence denied that he was
ever taken to a hospital.
19. Appellant stated
that he requested a loan of R500.00 from the complainant as he was
not working. They then went to a bank
in Goodwood where he
accompanied the complainant into the bank. Whilst in the bank,
complainant asked him to wait for him. Five
minutes later he asked
the complainant whether he had cigarettes in the car. The
complainant replied in the affirmative. He then
left the bank, and
before he could light his cigarette, he was arrested.
20. Appellant stated
that he had not seen or met the complainant before 17 May 2004. He
denied robbing the complainant, stabbing
him or placing him in the
boot of a car. He also denied the presence of the 23-year old male
on the day in question. He stated
that after the complainant had
given
him a loan, a loan agreement would have been formalised in writing.
He could not explain why the complainant left his vehicle
behind,
and decided to get into the BMW vehicle. He could not explain why
complainant did not simply withdraw an amount of R500.00
at an ATM.
He does not know why the complainant made all the serious
allegations against him. Complainant's evidence was that
he had
proof that an amount of R500.00 had been withdrawn from his account,
not by him, but after he had given his debit card
to the Appellant.
There appeared to be no motive why the complainant would falsely
implicate the Appellant.
21. The Regional
Magistrate evaluated all the evidence and in her judgment, was
satisfied that the Appellant's guilt was proven
beyond reasonable
doubt. Upon perusing the appeal record, this Court is also satisfied
that the trial Court rightly convicted
the Appellant. The
Appellant's version as to what happened on 17 May 2004 was, without
any doubt, false.
22. I now deal with the
question of sentence.
23. At the time of the
trial, the Appellant was 40 years of age. He is unmarried and passed
Std 1 at school. He has 4 children.
They are aged 21 years, 12
years, 7 years and 2 years. He resides with his sister. The 21-year
son and the 2-year old reside
with him at his sister's house. The
Appellant is self-employed, as a builder. He stated that when he was
at work, his 2-year
old child is looked after by
"someone".
He
pays an amount of R150.00 per week towards the care of this child.
24. The 12-year old and
7-year old children are schooling and are cared for by Appellant's
mother. He does not have contact with
the biological mother of these
two children. The 2-year old's mother is Nicole Petersen. The
Appellant's parents live in Delft.
His father is 68 years of age and
his mother is 70 years of age.
25. Appellant called a
friend of his to testify on his behalf in mitigation of sentence.
This friend, a Mr Faizel Felaar, stated
that there was a time that
he looked after the 2-year old child as the Appellant's family did
not look after the said child as
they were drunk. According to him,
the Appellant worked
"now
and again",
but
most of the time he was actually looking for someone to care for his
child.
26. As to his
willingness to look after the 2-year old child, he stated that he
himself was married with two minor girls. He did
not mind to look
after the Appellant's 2-year old child, but realised afterwards that
it would be a big adjustment to look after
the child. He did not
know the whereabouts of the mother of the 2-year old child.
27. In arriving at a
sentence, the Regional Magistrate took into account the general
principles regarding sentence and decided
not to impose the minimum
sentence applicable, as she found that there were substantial and
compelling circumstances present,
justifying a lesser sentence of 15
years' imprisonment.
28. In terms of
section
28(1
)(b) of the Constitution, every child has a right to family
care or parental care or to appropriate alternative care when
removed
from the family environment.
29. InSvM
(Centre
for Child Law as Amicus Curiae)
[2007] ZACC 18
;
2007
(2) SACR 539
(CC) at page 558, Sachs J had due regard to certain
practical modes of ensuring that section 28(2) read with section
28(1 )(b)
is applied in a sensible way. There were four
responsibilities on a sentencing Court when a custodial sentence for
a primary
caregiver is in issue. They are:
29.1. to establish
whether there will be an impact on a child;
29.2 to consider
independently the child's best interest;
29.3. to attach
appropriate weight to the child's best interests;
29.4. to ensure that the
child will be taken care of if the primary caregiver is sent to
prison.
30. The Court held that
these practical modes take appropriate account of the pressures
under which the Courts work, without allowing
systemic problems to
snuff out their constitutional responsibilities.
31. The Court went on
further and stated as follows:
"Focused and
infonved attention needs to be given to the interests of children at
appropriate moments in the sentencing process.
The objective is to
ensure that the sentencing court is in a position adequately to
balance all the varied interests involved,
including those of the
children placed at risk. This should become a standard preoccupation
of all sentencing courts. To the
extent that the current practice of
sentencing courts may fall short in this respect, proper regard for
constitutional requirements
necessitates a degree of change in
judicial mind set. Specific and well informed attention will always
have to be given to ensuring
that the form of punishment imposed is
the one that is least damaging to the interests of the children,
given the legitimate
range of choices in the circumstances available
to the sentencing court"
32. At paragraph 36
of the aforesaid judgment, the Court set out certain guidelines to a
sentencing court:
"(a) A
sentencing court should find out whether a convicted person is a
primary caregiver whenever there are indications
that this might be
so.
(b) A probation
officer's report is not needed to determine this in each case. The
convicted person can be asked for the information
and if the
presiding officer has reason to doubt the answer, he or she can ask
the convicted person to lead evidence to establish
the fact The
prosecution should also contribute what information it can; its
normal adversarial posture should be relaxed when
the interests of
children are involved. The court should also ascertain the effect on
the children of a custodial sentence if
such a sentence is being
considered.
(c) If on the
Zinn-triad approach the appropriate sentence is clearly custodial
and the convicted person is a primary caregiver,
the court must
apply its mind to whether it is necessary to take steps to ensure
that the children will be adequately cared for
while the caregiver
is incarcerated.
(d) If the
appropriate sentence is clearly non-custodial, the court must
determine the appropriate sentence bearing in mind the
interests of
the children.
(e) Finally, if there
is a range of appropriate sentences on the Zinn approach, then the
court must use the paramountcy principle
concerning the interests of
the child as an important guide in deciding which sentence to
impose."
33. In her very short
judgment on sentence (record: pages 158 and 159), with regard to the
2-year old child, the Regional Magistrate
stated as follows:
“
I
also
feel I cannot turn a blind eye to the issue of the child, because
you indicated that because of liquor which is consumed
at home, you
do not trust leaving the child with your parents. You even went to
the extent of enlisting the help of your friend
to take care of your
child".
34. The Regional
Magistrate said nothing further about the Appellant's 2-year old
child.
35. In my view, the
Regional Magistrate made no enquiry as to what would happen to the
2-year old child if the Appellant was sent
to jail. There was no
evidence placed before the Court as to who would maintain the minor
should the appellant be sent to jail.
The quality of whatever
alternative care was available to the 2-year old child ought to have
been investigated more fully. There
was a dearth of information as
to who actually cared for the 2-year old child, when Appellant
worked. The Appellant's two other
minor children aged 7 years and 12
years appeared to be residing with the Appellant's parents.
Appellant's witness stated at
some time he was required to look
after the 2-year old child as the Appellant's own family did not
have time for the child and
also at the time his family were drunk.
Appellant does not know the whereabouts of the biological mother of
the 7 and 12 year
old children. Similarly, he does not know the
whereabouts of the bioiogical mother of the 2-year old child. He
stated that he
did not know where the 2-year old child would go to
should he be sent to jail.
36. This Court is of the
view that the Regional Magistrate did not pay any attention as to
who would maintain the 2-year old child
in the Appellant's absence.
In my view, although the Appellant and his witness gave evidence
regarding his children, the aforesaid
information was rather vague.
The so-called
"people"
who
looked after the 2-year old boy whilst Appellant went to work were
not identified. The reason as to why the minor child in
the first
instance is residing with the Appellant was not established. The
quality of the care given to the 2-year old child
by the so-called
"people"
was
similarly not established.
37. The Regional
Magistrate also does not appear to have given any thought of calling
for a Social Worker's report.
38. In her written heads
of argument, counsel for the State stated that it was unfortunate
that a Probation Officer's report was
not requested at the trial
Court. She stated that a Social Worker's report and a Correctional
Supervisor's report might possibly
have a significant impact on the
best interests of the child and not on the sentence as there could
be other arrangements regarding
the welfare or best interests of the
child. I do not agree with this submission with regard to sentence.
There was simply insufficient
evidence with regard to the minor's
welfare in the absence of the Appellant.
39. There is nothing in
the Regional Magistrate's reasons for sentence that shows that she
applied a properly informed mind to
the duties flowing from section
28(2) read with section 28(1)(b) of the Constitution.
40. The Regional
Magistrate passed sentence without sufficient independent attention
as required by section 28(2) read with section
28(1)(b) of the
Constitution to the impact on the 2-year old child, of sending the
Appellant to prison. In my view, the Regional
Magistrate misdirected
herself by not paying sufficient attention to these constitutional
requirements.
See:
SvM
(Centre for Child Law as Amicus Curiae)
SACR
539 (CC).
41. This Court is of the
view that the Regional Magistrate gives due consideration to calling
for a Social Worker's report in
respect of the Appellant's 2-year
child. In doing so, the Regional Magistrate will be placed in a
better position to determine
as to who would maintain the said
child, and the quality of whatever alternative care was available
should the Appellant be incarcerated.
42. This Court is of the
view that it would be prudent to remit the question of sentence to
the Regional Magistrate to pass a
sentence afresh in the light of
this judgment and the judgment of S
v
M (Centre for Child Law as Amicus Curiae)
[2007] ZACC 18
;
2007
(2) SACR 539
(CC).
43. In the result, I
make the following order;
The conviction on both
the charges are confirmed.
The appeal on the
sentence is upheld.
43.3. The
matter is remitted to the Regional Magistrate to pass sentence
afresh, in the light of this judgment and the judgment
of S
v
M (Centre for Child Law as Amicus Curiae)
[2007] ZACC 18
;
2007
(2) SACR 539
(CC).
JAGA,
AJ
I
agree.
ALLIE,
J