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[2010] ZAWCHC 143
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Steyn v S (A 180/2010) [2010] ZAWCHC 143; 2011 (1) SACR 364 (WCC) (19 August 2010)
Republic of South
Africa
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
No: A 180/2010
In
the matter of
HENRY
STEYN
Appellant
and
THE
STATE
Respondent
JUDGMENT
DELIVERED : 19 AUGUST 2010
Matter
heard on 28 July 2010
Coram:
Louw, Moosa et Steyn, J J
For
Appellant : Adv P J Burgers
Attorney(s)
:
Legal Aid Board (Cape Town Justice Centre)
For
Respondent : Adv A Y Allchin
Attorney(s)
:
Director of Public Prosecutions
Judgment
delivered by MOOSA, J
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
No: A 180/2010
In
the matter of
HENRY
STEYN
Appellant
and
THE
STATE
Respondent
JUDGMENT
DELIVERED : 19 AUGUST 2010
MOOSA,
J:
[1]
On 21 March 2000 the appellant was convicted on a charge of rape in
the Regional Court held at Caledon. He was convicted together
with
two other accused. The proceedings in the Regional Court were stopped
in terms of section 52 (1) of the Criminal Law Amendment
Act, No 105
of 1997 ("the Act") and referred to the High Court for the
purpose of sentence. The complainant was raped
by more than one
person with a common purpose. In terms of section 51 of the Act, the
appellant and his co-accused qualified for
life imprisonment in the
absence of substantial and compelling circumstances.
[2]
On 17 March 2003 the High Court found that the proceedings in the
Regional Court were in accordance with justice and confirmed
the
conviction against the appellant and his co-accused. The court
further found that there were no substantial and compelling
circumstances to deviate from the prescribed sentence of life
imprisonment and sentenced each of them to life imprisonment. The
appellant comes to this court on appeal against his sentence with the
leave of the court
a
quo.
Leave
to appeal against his conviction was refused.
[3]
It is common cause that the charge sheet does not reflect that the
charge fell under the aegis of the Act. There is no indication
from
the record at the commencement of the trial or during the course of
the trial in the Regional Court, that the charge resorted
under the
provisions of the Act. It is only after the appellant and his
co-accused were convicted that the Regional Magistrate
indicated that
the sentence he is required to impose for the offence exceeds his
sentencing jurisdiction and he is obliged to refer
the matter to the
High Court for purpose of sentence.
[4]
The court in
S
v Legoa
2003
(1) SACR 13
(SCA) at para 21, however, stated that there is no
general rule that the indictment must
"recite
either the specific form of the scheduled offence with which the
accused is charged, or the facts the State intends
to prove to
establish it".
According
to the court, the essential issue to be dealt with is whether the
accused's
"substantive
fair trial right, including his ability to answer the charge, has
been impaired".
[5]
The facts in
S
v Legoa
(supra)
are
briefly that the accused, who had legal representation, after having
been charged with the offence of dealing in dagga, pleaded
guilty to
such offence. The charge sheet made no mention of the value of such
dagga and only referred to penalties under the
Drugs and Drug
Trafficking Act 140 of 1992
. However, the trial court convicted the
accused and sentenced him under the minimum sentence provisions
section 51 (2) (a) (i)
of the Act. The Supreme Court of Appeal set
aside the prescribed minimum sentence and at para 27 held as follows:
"The
appellant was not warned that the minimum sentencing legislation
might be invoked. In fact, the charge-sheet misled him
as to the
applicable penalty by referring only to the 1992 Act. The trial
court, in convicting him, did not question him or satisfy
itself (as
enjoined by
Ramsbottom
JA)
as
to the elements of the form of the offence to which he was pleading
guilty. It was therefore highly unfair to confront the appellant
thereafter with the minimum sentences."
[6]
The court in
S
v Ndlovu
2003
(1) SACR 331
(SCA) at para 12, after referring to
S
v Legoa
(supra)
stated
the following:
".
. . where the State intends to rely upon the sentencing regime
created by the Act a fair trial will generally demand that
its
intention pertinently be brought to the attention of the accused at
the outset of the trial, if not in the charge-sheet then
in some
other form, so that the accused is placed in a position to appreciate
properly in good time the charge that he faces as
well as its
possible consequences. Whether, or in what circumstances, it might
suffice if it is brought to the attention of the
accused only during
the course of the trial is not necessary to decide in the present
case. It is sufficient to say that what will
at least be required is
that the accused be given sufficient notice of the State's intention
to enable him to conduct his defence
properly."
[7]
The facts in
S
v Ndlovu
(supra)
are
that the accused, who was legally represented at his trial, was
charged with unlawful possession of a firearm and ammunition.
The
accused was found guilty of the charge, and the magistrate, finding
that the weapon was a semi-automatic firearm, sentenced
the accused
to 15 years imprisonment in terms of s 51 (2) (a) (i) of the Act.
Apart from a reference in the charge sheet to section
50 of the Act,
which in any case did not relate directly to the imposition of a
minimum sentence, the accused was at no stage pertinently
warned that
he was in danger of being sentenced in terms of the minimum sentence
legislation. The learned judge in the appeal at
para 14, p 337 found
that this failure
"constituted
a substantial and compelling reason why the prescribed sentence ought
not to have been imposed".
[8]
In
S
v Makato
2006
(2) SACR 582
(SCA) at para 5, the learned judge confirmed the court's
approach in
S
v Legoa
(supra)
and
S
v Ndlovu
(supra)
that
"the
relevant sentence provisions of the Act must be brought to the
attention of an accused in such a way that the charge can
be properly
met before conviction".
The
court went on to state at para 7 that:
"As
a general rule, where the State charges an accused with an offence in
terms of s 51 (1) of the Act, such as premeditated
murder, it should
state this in the indictment. This rule is clearly neither absolute
nor inflexible. However, an accused faced
with life imprisonment -
the most serious sentence that can be imposed - must from the outset
know what the implications and consequences
of the charge
are".
[9]
I must, however, hasten to point out that, where a court has found
that substantial and compelling circumstances exist to deviate
from
the prescribed minimum sentence, then, in that event, the trial would
not have been unfair despite the fact that the provisions
of the Act
have not been brought to the attention of the accused. The rationale
for that proposition is to be found in the fact
that the accused
would have suffered no prejudice as the court found that there were
substantial and compelling circumstances to
depart from the minimum
prescribed sentence.
[10]
It appears that the decisions of
S
v Ndlovu
(supra)
was
not reported at the time this matter came before the court
a
quo
for
sentence.
S
v Legoa
(supra),
while
reported at such time, was not brought to the notice of the Court
a
quo.
On
the principles enunciated in those cases as well as the case of
S
v Makatu
(supra),
I
am of the view, that the court
a
quo,
should
have found that the state:
"By
involving the provisions of the Act without it having been brought
pertinently to the appellant's attention that this would
be done,
rendered the trial in that respect substantially unfair".
In
the circumstances the court
a
quo
should
have held that the appellant suffered prejudice and the omission
"constituted
a substantial and compelling reason why the prescribed sentence ought
not to have been imposed".
[11]
In view of the conclusion I have reached, I am of the view that there
are substantial and compelling circumstances to deviate
from the
prescribed minimum sentence of life imprisonment and this court is
entitled to sentence the appellant afresh. In doing
so, I take into
consideration the personal circumstances of the appellant: Firstly,
the appellant was a youthful offender at the
time of the commission
of the offence. It appears that he was 22 years old at the time. He
was 23 years old when he was convicted
and 25 years old when he was
sentenced. Secondly, he is a first offender and there is no evidence
that the offence was premeditated.
Thirdly, he passed standard 7, was
in productive employment as a tractor driver on a farm and supported
three children who were
dependent on him. Fourthly, he was an
awaiting-trial prisoner for two years.
[12]
The court
a
quo
in
my view correctly found that:
"The
circumstances in which the crime was committed were of a serious
nature involving, inter alia, rape of the complainant
(accused number
2 is the father of her own child) by accused numbers 1 and 3, in the
presence of accused number 2, in a very humiliating
and dehumanising
manner".
In
addition thereto what aggravates the matter further is the fact that
she was threatened with a knife. In dealing with the incidence
of the
crime of rape within the jurisdiction of the court, the court
a
quo
said:
"Rape
is a serious offence and undoubtedly in the Western Cape in
particular, crimes of this nature are on the rise".
[13]
I align myself with the observation of the court
a
quo
when
it considered the interests of the community. It said:
"The
second factor that a court will take into account is the need to
protect the interests of the community. There is no doubt
in my mind
that the community out there is crying out for protection from
criminals who commit such violent crimes in a ruthless
manner.
Clearly the court would be failing in its duty if it ignored the
interests of the community and the expectations and demands
of the
community with regard to the crimes of this nature".
[14]
Taking into consideration all the circumstances and factors
pertaining to sentence, including but not limited to the seriousness
of the offence, the interests of the community, the personal
circumstances of the appellant, the fact that the appellant was in
custody as an awaiting-trial prisoner in this matter for
approximately two years and the various sentencing options open to
the
court, I am of the view that an appropriate sentence would be one
of 16 years imprisonment. In the circumstances the appeal against
the
sentence in respect of the appellant should succeed and the sentence
of life imprisonment should be substituted by one of 16
(sixteen)
years imprisonment.
E
MOOSA
STEYN,
J: I agree.
ET
STEYN
LOUW,
J: I agree and it is so ordered.
W
J LOUW