About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2008
>>
[2008] ZASCA 118
|
|
S v Msane and Another (96/2008) [2008] ZASCA 118; [2009] 1 All SA 454 (SCA) (26 September 2008)
Links to summary
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
Case No: 96/2008
No precedential interest
In the matter between:
SIPHO BONGINKOSI MSANE
FIRST APPELLANT
ROBERT LIJUVWANI KONE
SECOND APPELLANT
v
THE STATE
RESPONDENT
Neutral citation:
Msane v
The State
(96/2008)
[2008] ZASCA 118
(26 September 2008).
Coram: Lewis, Mlambo and Cachalia JJA
Heard: 27 August 2008
Delivered: 26 September 2008
Summary: Criminal law – attempt –
appropriate sentence. Sentence – duplication of punishment.
_______________________________________________________________
ORDER
_______________________________________________________________
On appeal from:
High Court,
Johannesburg (Goldstein and Khampepe JJ sitting as Full Court).
1 The appeal succeeds and the order of the Johannesburg
High Court is set aside.
2 In its place the following order is substituted:
The appeal against sentence succeeds and the sentence
imposed by the Regional Court is altered to read:
‘(i) On count one the accused are sentenced to
four years’ imprisonment of which one year’s imprisonment
is suspended
for a period of five years on condition that they are
not convicted of extortion or of a contravention of the
Prevention
and Combating of Corrupt Activities Act 12 of 2004
, during the period
of suspension.
(ii) On count two the accused are sentenced to one
year’s imprisonment which is ordered to run concurrently with
the sentence
imposed on count one.’
______________________________________________________________
JUDGMENT
______________________________________________________________
MLAMBO JA (LEWIS and CACHALIA JJA CONCURRING):
[1] The appellants were convicted by the Johannesburg
Regional Court of extortion and the unlawful possession of 17 ecstasy
tablets.
1
On the extortion count they were sentenced to four years’
imprisonment one of which was suspended for five years on condition
that they were not convicted of extortion or of a contravention of s
1(1) of the Corruption Act 94 of 1992 committed during the
period of
suspension. On the drugs related count they were sentenced to one
year’s imprisonment. The sentences on the two
counts were
ordered to run consecutively, resulting in an effective four year
imprisonment sentence.
[2] In an appeal to the Johannesburg High Court the
extortion count was altered to one of an attempt. That court
(Goldstein and
Khampepe JJ), did not, however, interfere with the
sentence imposed, hence this appeal with leave of this court.
[3] The facts very briefly are that the appellants, a
sergeant and constable respectively, attached to the Hillbrow Crime
Intelligence
Unit of the South African Police Services (SAPS) had
apprehended the complainant, Ms Susan Schesser, on a routine patrol,
and found
17 ecstasy tablets in her possession. They arrested her but
demanded that she pay them an amount of R4 000 on receipt of which
they would drop charges and return the ecstasy tablets to her. She
agreed to make the payment and arranged to do so the following
day.
[4] However, Schesser decided to report the incident to
the Anti Corruption Unit of the SAPS which decided to entrap the
appellants
using her as bait. She was provided with marked money and
instructed to meet the appellants at their rendezvous to hand over
the
money. Schesser met the appellants as arranged and as she was
about to hand the money over to them, a police vehicle happened to
pass by not far from them. The appellants became suspicious and
instructed her to follow them to another area where the handover
would be done. As they drove off members of the Anti Corruption Unit
pounced and on searching the appellants’ vehicle found
the 17
ecstasy tablets in their motor vehicle and arrested them.
[5] It is not in dispute that upon their arrest the
appellants had not yet taken the money from Schesser. They could
therefore not
be convicted of extortion proper, and the court a quo
was correct in altering that conviction to one of an attempt. That
court,
however, did not alter the sentence imposed by the regional
court. The issue now before us is whether the alteration of the
conviction
should have resulted in a decreased sentence as contended
by the appellants.
[6] The court a quo did not elaborate on any reason it
may have had for refusing to interfere with the sentence. In this
regard
the court a quo, apparently as an afterthought, as it had
already dismissed the appeal, stated simply: ‘Of course there
is
the one aspect, and that is that we have now corrected the
conviction by reducing it from one of extortion to one of attempted
extortion, but in my view that does not justify reducing the
sentences’.
[7] The submission advanced to us on the appellants’
behalf in this regard is that in imposing sentence on count one their
personal circumstances, especially the fact that they retained their
jobs despite these offences due to their outstanding record
as
policemen, were not given proper consideration by the courts below.
Furthermore, so the submission went, as the regional court
had
sentenced them based on a completed offence, the alteration thereof
to an attempt by the high court should ‘logically
have altered
the sentence’.
[8] That, in my view, is not the test. The test, this
being an appeal, is whether in imposing sentence the courts below
committed
any misdirection and, if not, whether the sentence is
shockingly inappropriate. The nature of the offence and the
particular circumstances
of the matter and the personal circumstances
of the offenders remain relevant in the determination of an
appropriate sentence.
[9] The appellants’ criticism of the sentence
imposed by the regional court on count one is that it failed to have
regard
to all relevant personal factors. However, I consider that the
regional court properly applied its mind to all relevant factors
before imposing the sentence upheld in the court a quo. In particular
that court took account of the personal circumstances of
the
appellants, especially that they were both highly regarded members of
the police force and had family responsibilities. The
court also took
account of the pre-sentence reports filed on behalf of the appellants
recommending non-custodial sentences. In
the final analysis the
regional court was of the view that extortion was a very serious
offence and was prevalent in its area.
[10] The second criticism, directed at the high court,
is that it should have reduced the sentence since it found that only
attempted
extortion had been committed. In my view, the appellants’
stance in this regard is misplaced. Generally, as Snyman
2
says, a ‘lesser punishment is imposed for attempt than for the
completed crime’. The basis advanced for this view is
that
‘from the viewpoint of the retributive theory of punishment,
either no harm or less harm (compared to the completed
crime) has
been caused’. Each case must, however, be decided on its own
facts.
[11] In my view moral blameworthiness plays a critical
role in the determination of an appropriate sentence and, extortion,
as found
by the regional court, is a very serious offence. This
offence, especially when committed by law enforcement officers, is
morally
reprehensible. The fact that we are here dealing with
attempted extortion does not detract from the moral reprehensibility
of the
appellants’ conduct. Had Schesser not reported the
matter to the Anti Corruption Unit, the appellants’ crime would
probably not have been detected. Clearly the mere fact that the
conviction was altered to an attempt does not make the offence less
morally blameworthy, as it would have had the appellants changed
their minds about going ahead with the deal and not completed
the
commission of the offence. In my view the sentence imposed for the
attempted extortion does not induce a sense of shock.
[12] During argument we raised the issue whether the
sentence imposed on the drugs possession count should have been
ordered to
be served concurrently with the sentence on the attempted
extortion count. It is important in this regard to take account of
the
fact that the appellants took possession of the ecstasy tablets
only for the purpose of safekeeping, so to speak, until they were
paid the extortion money. It is also relevant that such possession
was to aid the extortion and as such their conduct constituted
in
essence the commission of a single offence. In my view the imposition
of consecutive sentences under these circumstances without
due
consideration that one is essentially dealing with one offence
amounted to a duplication of punishment. It is in this respect
that
the regional court and court below misdirected themselves. See
S
v Mathebula
1978 (2) SA 607
(A) at 613D-E
where Trollip JA stated:
‘
As stated above, these
two crimes must, for purposes of conviction and punishment, be
regarded as separate and distinct. Extreme
care was therefore
required in the exercise of the discretionary power to avoid any
duplication of punishment in passing sentence
on count 3 . . .’
See also
S v Morten
1991 (1) SACR 483
(A) at 485i-j. In these circumstances a proper
exercise of discretion would have dictated that the sentence of one
year’s
imprisonment imposed on the drugs count be ordered to
run concurrently with the attempted extortion count. The appeal
should, in
my view, succeed to this limited extent only.
1 The appeal succeeds and the order of the Johannesburg
High Court is set aside.
2 In its place the following order is substituted:
The appeal against sentence succeeds and the sentence
imposed by the Regional Court is altered to read:
‘(i) On count one the accused are sentenced to
four years’ imprisonment of which one year’s imprisonment
is suspended
for a period of five years on condition that they are
not convicted of extortion or of a contravention of the
Prevention
and Combating of Corrupt Activities Act 12 of 2004
, during the period
of suspension.
(ii) On count two the accused are sentenced to one
year’s imprisonment which is ordered to run concurrently with
the sentence
imposed on count one.’
________________
D MLAMBO
JUDGE OF APPEAL
APPEARANCES:
FOR APPELLANT: E S CLASSEN
INSTRUCTED BY: DAVID H BOTHA, DU PLESSIS & KRUGER
INC; JOHANNESBURG
SYMINGTON & DE KOK ATTORNEYS; BLOEMFONTEIN
FOR RESPONDENT: P NEL
INSTRUCTED BY: THE DIRECTOR OF PUBLIC PROSECUTIONS;
JOHANNESBURG
THE DIRECTOR OF PUBLIC PROSECUTIONS; BLOEMFONTEIN
1
In terms of
s 4
of The
Drugs and Drug Trafficking Act 140 of 1992
it
is an offence to be found in possession of a substance decreed
dangerous and dependence producing.
2
C R Snyman
Criminal Law
5 ed (2008) p 294.