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[2012] ZASCA 204
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S v Basson and Another (442/12) [2012] ZASCA 204 (30 November 2012)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 442/12
Not Reportable
In the matter between:
JOHANNES PETRUS BASSON
...............................................................
First
Appellant
PIETER JOHANNES
HENDRIK DU PLESSIS
....................................
Second
Appellant
and
THE STATE
....................................................................................................
Respondent
Neutral citation:
Johannes Petrus Basson v The State
(442/12)
[2012] ZASCA 204
(30 November 2012)
Coram:
MPATI P,
SHONGWE JA and MBHA AJA
Heard:
7 November
2012
Delivered:
30
November 2012
Summary: Criminal
Procedure – sentence – multiple convictions –
sentences ordered to run concurrently –
portion of effective
cumulative period of imprisonment ordered to run concurrently with
previous sentence.
______________________________________________________________________
ORDER
_____________________________________________________________________
On appeal
from
:
North Gauteng High
Court, Pretoria (Preller J and Van Rooyen AJ, sitting as court of
appeal):
(a) The appeal succeeds
to the extent indicated in the following sub-paragraph;
(b) Paragraph 2 of the
order of the court below is altered to read:
‘
Otherwise
the appeal against sentence is dismissed, save that it is ordered
that:
in respect of the first
appellant, the sentences imposed in counts 1, 2, 3, 5 and 6 shall
run concurrently with the sentence in
count 4, save that one (1)
year of each of the sentences in counts 1, 2, 3, 5 and 6 shall be
served after the completion of the
sentence in count 4; and
in respect of the second
appellant, the sentences in counts 1, 2, 5 and 6 shall run
concurrently with the sentence in count 4,
save that one (1) year of
each of the sentences in counts 1, 2, 5 and 6 shall be served after
the completion of the sentence
in count 4.’
(c) It is further ordered
that, in respect of the first appellant, 15 years of the cumulative
sentence of 25 years’ imprisonment
shall be served concurrently
with the sentence imposed on him by the Brits Regional Court on 29
May 2003, and, in respect of the
second appellant, 12 years of the
cumulative sentence of 24 years’ imprisonment shall be served
concurrently with the sentence
imposed on him by the Brits Regional
Court on 18 February 2003.
(d) To the extent
necessary, all sentences altered by this court and the court a quo
are backdated to the date of imposition of
sentence.
(e) The effect of the
order of this court, read with the order of the court a quo is
therefore that the first appellant shall serve
an effective term of
imprisonment of 25 years and the second appellant an effective term
of imprisonment of 24 years.
______________________________________________________________________
JUDGMENT
_____________________________________________________________________
MPATI P (SHONGWE J and
MBHA AJA CONCURRING):
[1] On 8 August 2003 the
two appellants were convicted by the Pretoria Regional Court (the
trial court) of four counts of robbery
with aggravating circumstances
(counts 1, 2, 4 and 5 respectively) and one of theft of a motor
vehicle (count 6). In addition,
the first appellant was convicted of
one count of attempted murder (count 3). They were sentenced on 19
August 2005. In respect
of each of counts 1, 2 and 5 each appellant
was sentenced to 15 years’ imprisonment. They were each
sentenced to 20 years’
imprisonment in respect of count 4 and
five years’ imprisonment in respect of count 6. The first
appellant was sentenced
to 10 years’ imprisonment in respect of
count 3.The sentences on count 2 were ordered to run concurrently
with the sentences
on count 1, while the sentences on count 5 were
ordered to run concurrently with those in count 4. This meant that
the first appellant
would serve a total of 50 years’
imprisonment and the second appellant a total of 40 years’
imprisonment.
[2] The appellants’
appeal to the Transvaal Provincial Division of the High Court (now
North Gauteng High Court) against their
sentences yielded good
results for them. On 13 June 2005 that court (per Preller J, with Van
Rooyen AJ concurring), exercising
its inherent powers of review,
altered the attempted murder conviction (count 3) to one of assault
with intent to do grievous bodily
harm, set aside the sentence
imposed by the trial court and imposed a sentence of three (3) years’
imprisonment. It then
made the following order:
’
[T]he
sentences imposed on counts 2, 3, 4, 5 and 6 shall be served
concurrently with the sentence imposed on count 1, save for in
each
case a sentence of 1 year which has to be served after the completion
of the sentence on count 1. The nett effect thereof
would be that the
first appellant is sentenced to 20 years’ imprisonment and the
second appellant to 19 years’ imprisonment.’
The court
further ante-dated the sentences to ‘the date on which the
present sentences were imposed by the court a
quo
. . .’ .
[3] The reference to the
first and second appellants being sentenced to 20 years’ and 19
years’ imprisonment respectively
is of course erroneous. In
respect of count 4 they were each sentenced by the trial court to 20
years’ imprisonment and thus
a correct order should have been
that the sentences on counts 1, 2, 3, 5 and 6 (in respect of the
first appellant) and counts 1,
2, 5 and 6 (in respect of the second
appellant) shall run concurrently with the sentences on count 4. Be
that as it may, the correct
position was that the first and second
appellants were to serve 25 and 24 years’ imprisonment
respectively.
[4] On 9 March 2010 the
appellants appeared, unrepresented, before Preller J seeking clarity
as to whether sentences imposed on
them by the Regional Court, Brits,
in respect of separate convictions of robbery were also to run
concurrently with the sentences
substituted on appeal on 13 June
2005. The offences had been committed on 18 January 2002 in respect
of the first appellant and
21 January 2002 in respect of the second
appellant. The two appellants were charged separately. The first
appellant was sentenced
on 29 May 2003 to 15 years’
imprisonment, while the second appellant was sentenced on 18 February
2003 to 12 years’
imprisonment. (It appears that it was after
the appellants’ arrest or convictions that investigations
linked them to the
offences for which they were convicted and
sentenced on 8 August 2003.) Preller J treated the appellants’
‘enquiry’
as an application for leave to appeal against
the sentences imposed on them by the Brits Regional Court and granted
them such leave.
He was of the view that the cumulative effect of the
sentences, ie those imposed by the Brits Regional Court and those
substituted
by him and Van Rooyen AJ on appeal, would be too severe.
[5] However,
Preller J subsequently realised that he had had no authority to make
the order he did on 9 March 2010 granting leave
to appeal against the
sentences imposed by the Brits Regional Court.
1
The matter came before him and Goodey AJ on 27 July 2011
when leave was sought, on behalf of the appellants, to appeal against
the
sentences substituted by the court a quo on appeal to it. The
contention was that the appellants would argue that the sentences
imposed by the court a quo should be ordered to run concurrently with
the sentences imposed upon them by the Brits Regional Court.
In the
course of his judgment on the application for leave to appeal Preller
J remarked that neither the court a quo (when it dealt
with the
appeal), nor the trial court (when it imposed sentence) was aware
that the appellants were already serving other sentences.
Since he
had already expressed the view that the cumulative effect of the
sentences substituted by the court a quo and those imposed
by the
Brits Regional Court was too severe, Preller J, with Goodey AJ
concurring, granted the leave sought by the appellants.
[6] It seems to me that
the observation made by the court a quo that the trial court was
unaware of the fact that the appellants
were already serving other
sentences was wrong. The trial court said the following about the
first appellant in its judgment on
sentence:
‘
The
prosecutor has proved previous convictions against you, and of note
is one of robbery, which was committed in 2002, that is
last year of
which you are serving a term of imprisonment.’
And in respect of the
second appellant it said:
‘
The
prosecutor proved a previous conviction against you, and the
commission thereof was on 21 January 2002 and therefore I will
take
note of this conviction. But for the purposes of section 51(2) of the
Criminal Law Amendment Act I will treat you as a first
offender.
’
The trial court would
have taken note of the fact that the second appellant was serving a
sentence of 12 years’ imprisonment
that had been imposed on him
in 2002.
[7] Before
the appellants were invited to plead to the charges they were facing,
the trial court warned them about the provisions
of s 51 of Act 105
of 1997
2
(the minimum sentence legislation) which provide for a
minimum sentence of 15 years’ imprisonment for robbery with
aggravating
circumstances, unless there are substantial and
compelling circumstances present that would entitle the court to
deviate from the
prescribed minimum sentence. It concluded, when
imposing sentence, that ‘there are no compelling circumstances
warranting
lesser sentences’.
[8] Before us counsel for
the appellants submitted that the cumulative effect of the Brits
sentences and the sentences substituted
by the court a quo and taking
account of the fact that all the crimes were part of a series, has
resulted in a shockingly disproportionate
sentence. Counsel
accordingly contended that the cumulative effect of the sentences
‘ought to be curbed’ by way of
an order directing that
portion of the effective term of imprisonment in respect of each of
the appellants run concurrently with
the Brits sentences. Counsel for
the State was not averse to such an order being made, but argued that
in view of the seriousness
of the crimes committed by the appellants
the effective terms of imprisonment to be served by the first and
second appellants should
not be less than 30 years and 29 years
respectively.
[9] What is clear from
the judgment of the court below is that it intended the appellants to
serve an effective term of imprisonment
of 20 years and 19 years
respectively. It expressed itself thus:
‘
If
one has regard to the fact that the heaviest sentence that a court
can impose is imprisonment for life, which is effectively
imprisonment for 25 years, it is clear that sentences of 50 years and
40 years are inappropriate. In my view the needs of the case
will be
met if the first appellant is sentenced to 20 years’
imprisonment and the second appellant to 19 years
.’
Counsel for the
appellants urged us to strive to achieve this goal by setting aside
the sentence of 20 years’ imprisonment
imposed in respect of
count 4 and to substitute it with one of 15 years’
imprisonment. But a reading of the judgment of the
court a quo
reveals that the court had no intention of interfering with the
sentence imposed by the trial court in respect of count
4. This is
clear from the following passage in its judgment:
‘
There
is a distinction between this case [count 4] and the others in that
not only the truck was robbed but also a safe containing
R28 000 in
cash which was removed with a forklift from the wall to which it was
affixed.
Sentence
is in the first place a matter which is in the discretion of the
trial court. I cannot say in the circumstances that that
sentence is
startlingly inappropriate, or that the magistrate misdirected himself
in any respect in coming to the decision that
20 years’
imprisonment was a proper sentence
.’
I can find no fault with
the view expressed by the court a quo and counsel did not suggest
that it misdirected itself in any way.
Perhaps, the court a quo’s
‘error’ was in ordering one year ‘in respect of
each sentence’ not to
run concurrently with the sentence on
count one.
[10] The only ground upon
which the court a quo granted leave against the sentences it
substituted was ‘oor die vraag of die
vonnis [in die Brits
sake] samelopend uitgedien moet word met die vonnisse wat hulle tans
uitdien’. The court indicated in
its judgment that it thought
that that should be the case, but it was careful to acknowledge that
its view would not be binding
on this court. Counsel for the
appellants submitted that the effect of the failure on the part of
the court a quo to consider the
cumulative effect of all the
sentences (including the Brits sentences) imposed on the appellants
is that they must serve terms
of imprisonment of 40 and 36 years
respectively. At the time of sentencing by the trial court the first
and second appellant were
37 and 43 years of age respectively, which
means that absent remissions or parole they will be 77 and 79 years
old respectively
at the end of their imprisonment. That, counsel
contended, would be very harsh on them indeed.
[11] The appellants were
convicted of very serious offences to which they sensibly pleaded
guilty. In count 1 the two appellants,
pretending to be traffic
officers, stopped a Cantor truck driven by a certain Mr Amon Mpebeko
on 11 January 2001 on the N1 between
Pretoria and Potgietersrus. They
then forced the driver, using a firearm, into the back of their own
vehicle, after which two co-perpetrators,
Messrs William Kekana and
Moses Tshabalala, drove off in the truck to a certain farm or plot
with Mr Mpebeko’s co-driver.
In count 2 the two appellants were
involved in a well orchestrated robbery of a Toyota truck ‘at
or near Brits and Rosslyn
Roads’. The second appellant had
dropped off the first appellant and a Mr Colin Meets (Meets) at a
certain spot and then
went to position himself such that he could
pick a vehicle that they could rob. From his chosen spot he
telephoned his two companions
and told them which truck to stop. The
first appellant and Meets, acting as traffic officers, stopped the
Toyota truck referred
to above and forcefully dispossessed the
driver, Mr Markus Moribe, of it. The driver was kicked with booted
feet, tied up and placed
in the back of the truck, which was then
driven off to the farm or plot referred to above. A firearm was used
during the robbery
which occurred on 19 June 2001.
[12] As has been
mentioned earlier, only the first appellant was involved in count 3.
During the course of the robbery in count
2 he stabbed Mr Moribe once
with a knife in the stomach after the latter had attempted to untie
himself. He was thereafter thrown
out of the moving truck. In count 4
the two appellants, together with Meets, robbed Mr Sybrand Marais, a
guard at a cold storage
concern in Daspoort, of a Nissan truck and a
safe containing R28 000, which were under his lawful control. A
forklift was used
to break a wall in order to remove the safe. In the
process Mr Marais was assaulted with fists and kicked with booted
feet and
his arm cut with a bolt cutter. The crime was committed on 1
July 2001. In count 5 the same modus operandi was used by the
appellants
and Meets as in count 2 to stop a Mercedes Benz truck
along Pelindaba Road, Renosterspruit, on 28 August 2001, which was
then forcefully
removed from the lawful possession of Mr Gladman
Buys. A firearm was used in the commission of the offence and Mr Buys
was tied
to a tree in the bush near the road. In count 6 the two
appellants, in the company of Meets, stole a Man truck from the
premises
of PHD Gearbox Centre on 15 October 2001. They jumped over
the fence, broke the ignition of the truck and, after the first
appellant
had broken the lock to the gate so as to open it, they
drove the truck to the farm or plot referred to earlier.
[13] It appears that on
the day of sentencing the first appellant was divorced but had two
children aged 11 and 8 years. He had
a standard eight education and
had been retrenched from stable employment just before he embarked on
the criminal activities for
which he had been arraigned. His wife was
unemployed and he was unable to provide for his children. It was
suggested, before the
trial court in mitigation of sentence, that he
‘decided on the life of crime’ after he had been
unsuccessful in securing
another job. The second appellant was
married with three children, aged 13, 16 and 17 years respectively.
They were all at school.
He had also been retrenched and turned to
crime when he was unable to find gainful employment.
[14] I agree with counsel
for the State that being unemployed is no justification for anyone to
turn to crime. The robbery counts
were accompanied by, it would seem,
unnecessary violence, where one person was stabbed in the stomach and
thrown out of the moving
truck of which he was robbed; one was cut
with a bolt cutter and others were mercilessly assaulted. It is so
that the court a quo
may have intended the appellants to serve
cumulative sentences of 20 and 19 years’ imprisonment
respectively, but the effect
of its order was that they were to serve
terms of imprisonment of 25 and 24 years. Considering all the factors
I have referred
to above, including the appellants’ personal
circumstances, it would not be fair to society, in my view, whose
interests
must be taken into account, to reduce the effective terms
of imprisonment that come out of the order of the court below. I
agree,
though, that if the sentences in the Brits matter are added to
the later sentences the cumulative effect would result in too severe
a punishment for the appellants. I have no doubt that had they been
charged with all the offences (including the Brits charges)
together
they would not have been ordered to serve a cumulative term of
imprisonment of more than 25 years. To achieve that goal
an order
must be made that part of the sentences imposed by the trial court
and the court a quo run concurrently with the Brits
sentences.
[15] In the result the
following order is made:
(a) The appeal succeeds
to the extent indicated in the following sub-paragraph;
(b) Paragraph 2 of the
order of the court below is altered to read:
‘
Otherwise
the appeal against sentence is dismissed, save that it is ordered
that:
in respect of the first
appellant, the sentences imposed in counts 1, 2, 3, 5 and 6 shall
run concurrently with the sentence in
count 4, save that one (1)
year of each of the sentences in counts 1, 2, 3, 5 and 6 shall be
served after the completion of the
sentence in count 4; and
in respect of the second
appellant, the sentences in counts 1, 2, 5 and 6 shall run
concurrently with the sentence in count 4,
save that one (1) year of
each of the sentences in counts 1, 2, 5 and 6 shall be served after
the completion of the sentence
in count 4.’
(c) It is further ordered
that, in respect of the first appellant, 15 years of the cumulative
sentence of 25 years’ imprisonment
shall be served concurrently
with the sentence imposed on him by the Brits Regional Court on 29
May 2003, and, in respect of the
second appellant, 12 years of the
cumulative sentence of 24 years’ imprisonment shall be served
concurrently with the sentence
imposed on him by the Brits Regional
Court on 18 February 2003.
(d) To the extent
necessary, all sentences altered by this court and the court a quo
are backdated to the date of imposition of
sentence.
(e) The effect of the
order of this court, read with the order of the court a quo is
therefore that the first appellant shall serve
an effective term of
imprisonment of 25 years and the second appellant an effective term
of imprisonment of 24 years.
___________________
L Mpati
President
APPEARANCES
For the Appellants: L A
van Wyk
Instructed by:
Pretoria Justice Centre
Bloemfontein Justice
Centre
For the Respondent J P
van der Westhuysen
Instructed by:
Director of Public
Prosecutions, Pretoria
Director of Public
Prosecutions,
Bloemfontein
1
See
S v Zulu
2003 (2) SACR 22 (SCA).
2
Criminal
Law Amendment Act 105 of 1997
.