About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2017
>>
[2017] ZASCA 151
|
|
Director of Public Prosecutions Gauteng Division, Pretoria v Plekenpol (333/2017) [2017] ZASCA 151 (21 November 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
reportable
Case
No: 333/2017
In
the matter between:
THE
DIRECTOR OF PUBLIC PROSECUTIONS
GAUTENG
DIVISION, PRETORIA
APPELLANT
and
JUDA
JOSEPH PLEKENPOL
RESPONDENT
Neutral
citation:
DPP
v Plekenpol
(333/17)
[2017] ZASCA 151
(21 November 2017)
Coram:
Shongwe
AP, Willis, Swain and Mathopo JJA and Schippers AJA
Heard:
3 November 2017
Delivered:
21
November 2017
Summary:
Criminal law and
procedure : cross-appeal by the State : prescribed minimum sentence
for robbery involving the taking of a motor
vehicle not considered by
the trial court or this court in the hearing of the convicted
person’s appeal : s 51 (2) of the
Criminal Law Amendment act
105 of 1997 : cross-appeal succeeds : prescribed minimum
sentence of 15 years’ imprisonment
imposed, 10 of which ordered
to run concurrently with the 18 years imposed on the count of murder
: effective sentence 23 years’
imprisonment.
ORDER
On
appeal from:
The
Gauteng Division of the High Court, Pretoria (Maumela J sitting as
the court of first instance):
1
The appeal is upheld.
2
The sentence of four years' imprisonment imposed by the court below
in respect of count 2 and the order antedating that sentence
to 28
July 2014 are both set aside and substituted with the following:
‘
On
count 2, the accused is sentenced to undergo 15 years' imprisonment
of which 10 years are to run concurrently with the sentence
imposed
on count 1 antedated to 4 June 2015.'
3
The respondent is therefore sentenced to an effective 23 years'
imprisonment.
JUDGMENT
Willis
JA (Shongwe AP, Swain and Mathopo JJA and Schippers AJA concurring):
[1]
This appeal, or more precisely, this cross-appeal, concerns the
applicability of the
minimum sentence provisions to a robbery
involving the taking of a motor vehicle.
The
respondent was indicted in the Gauteng Division of the High Court,
Pretoria (Maumela J) on a count of murder (count 1) as well
as a
count of robbery with aggravating circumstances , as defined in s 1
of the Criminal Procedure Act 51 of 1977 (count 2). He
pleaded guilty
to the count of murder but, in respect of count 2, he pleaded guilty
to the competent verdict of robbery (
simpliciter
).
The pleas on both counts were accepted by the State and he was found
guilty accordingly. Of particular relevance is the fact
that the
robbery involved the taking of a motor vehicle.
[2]
In
terms of Part II of Schedule 2 of the Criminal Law Amendment Act 105
of 1997 (the CLA), read with s 51(2) thereof, the respondent
was
therefore potentially liable to a minimum sentence of 15 years'
imprisonment arising from the robbery for the very reason that
it
included the taking of a motor vehicle. The trial court found,
incorrectly, that the crimes of which the respondent had been
convicted ‘do not attract minimum sentences in terms of the
Criminal Law Amendment Act in
the sense that he was convicted of
offences that do not entail the implementation of minimum sentencing
legislation.’ It
sentenced the respondent to four years'
imprisonment on count 2 but ordered that the sentence run
concurrently with count 1 in
respect of which he had also been
convicted. The sentence imposed on count 1 was 24 years’
imprisonment. This was therefore
the effective sentence. Both
the State and the respondent were given leave to appeal to this court
against sentence only. The appeal
by the State was referred to by the
trial court and the parties themselves as the cross-appeal. In 2016
this court heard the respondent’s
appeal and reduced the
sentence on count 1 to 18 years’ imprisonment but left
undisturbed the concurrent running of the four
year sentence on count
2. The effective sentence was then 18 years’ imprisonment. At
that previous hearing, this court overlooked
the cross-appeal granted
to the State in respect of sentence on count 2. It is this
cross-appeal which is now before us.
[3]
The appellant, the Director of Public Prosecutions (DPP), argued
before us that this court was required by law to interfere
with the
misdirection committed by the court a quo, in not having imposed the
prescribed minimum sentence of 15 years’ imprisonment
in
respect of count 2, involving the taking of a motor vehicle. In
addition, the DPP contended that although the crimes of murder
and
robbery were closely linked in time and place, they were committed
with two different, separate intentions and, accordingly,
an order
for the concurrency of the sentence for robbery with that for the
murder amounted to a misdirection.
[4]
The DPP contended further that, in any event, the sentence of four
years' imprisonment was 'so shockingly and inappropriately
lenient
that no reasonable court could have imposed it'. In summary, the DPP
reasoned that this court should interfere by imposing
a sentence of
15 years on count 2 because of an absence of substantial and
compelling circumstances, which may justify a lesser
sentence. The
DPP also submitted that the sentence on count 2 should not, in its
entirety, run concurrently with the sentence imposed
on count 1. The
DPP’s reasons will be dealt with later.
[5]
In order to decide the questions posed at the beginning of the
judgment and following thereupon, the appropriate order in the
circumstances, it is necessary to set out both the factual matrix and
the procedural history of the matter.
[6]
The respondent had the benefit of legal representation at his trial.
As mentioned previously, he had been indicted in the court
a quo on
one count of murder and one count of robbery with aggravating
circumstances. The respondent pleaded guilty on 28 July
2014 but, in
respect of the count of robbery with aggravating circumstances, he
expressly pleaded guilty to robbery
simpliciter
(ie robbery
without aggravating circumstances being present). This plea was
accepted by the State. The trial judge thereupon delivered
his
verdict as follows:
'
In
your plea explanation, you admitted all the elements in the crimes,
with regard to which you tendered the plea of guilty. The
State has
accepted your plea of guilty, in the manner expressed in your plea
statement. As a result, you are found guilty on the
two counts as
follows.
On
count 1, you are found guilty of murder, read with the provisions of
Section 51
subsection (2) of the
Criminal Law Amendment Act 105 of
1997
. On count 2, you are found guilty of ordinary robbery, however,
read with the provisions of
Section 51(2)
of the
Criminal Law
Amendment Act 105 of 1997
.'
In
other words, the respondent, at the time of his conviction could have
had no doubt that he risked receiving the prescribed minimum
sentence
of 15 years in respect of count 2. This also appears from the record,
where his legal representative set out his plea
explanation.
[7]
In that plea explanation the respondent said that he had come to know
his victim, the deceased, through a mutual friend, known
as Eddie.
Eddie and the deceased had lived together. On 9 April 2013 Eddie and
another person known as Dave had gone to a gay bar
called Rasputin
together. There, during the night, the respondent had met the
deceased. Later, they retired to the house in Garsfontein
where Eddie
and the deceased lived. At that house the respondent also met a
person known as 'Charles'. There they also drank wine
and conversed
before falling asleep. Eddie and the respondent developed a sexual
relationship.
[8]
As a result of his short stay at the home of the deceased, a
relationship of sorts developed between them. They smoked cigarettes,
drank alcohol and used a drug known as 'CAT' together. During the
evening of 13 April 2013, at a time when both the deceased and
the
respondent had been under the influence of alcohol and drugs, the
deceased said to him: '
Ek
moet praat, dan kan ons die hele aand hier op die bank spyker
'.
The respondent explained to the court that, 'roughly translated',
this meant that 'they can have sex the whole evening on the
couch'.
The respondent said he tried to ignore this remark but later the
deceased pressed his intentions further by grabbing the
respondent's
arm and suggesting they should go to the deceased's bedroom together.
The respondent claimed to have been 'shocked
and humiliated' by these
sexual overtures.
[9]
Pulling himself away from the deceased, the respondent fell over the
couch on to a bucket containing some cane sticks, one of
which he
described as a knopkierie. The respondent sustained a laceration as a
result. He became angry and when the deceased came
towards him again,
the respondent described what happened as follows:
'
In
the emotional state that I was in, I again struck him with the
knopkierie. I thought he still wanted me to go to his bedroom.
Due to
the fact that I lost my temper, I cannot recall how many times I
struck the deceased. I do, however, know it was multiple
times and
all over his upper body and head
.'
[10]
The respondent then realised that the deceased had been seriously
injured. Claiming still to be in a state of anger when the
deceased
had attempted to stand up, the respondent kicked him to force him
down again. The respondent said that he then panicked
and, acting
impulsively, he decided to steal some of the deceased's property. He
said that this would allow him to feed his drug
addiction. The
respondent loaded these items on to a pick-up truck or bakkie
belonging to the deceased. The respondent also forced
the deceased to
disclose his personal identification number (PIN) for his bank card.
[11]
The items taken from the deceased by the respondent were the
following:(a) a
Mahindra
light delivery vehicle; (b) two cellular phones; (c) several items of
clothing; (d) a large number of musical CDs; (e) a guitar;
(f)
several items of sound and television equipment; (g) laptop computers
and other computer equipment; (h) a microwave oven; (i)
golf clubs
and other golfing equipment; (j) several banking and other electronic
transaction cards; and (k) an unknown amount of
cash in small change.
The respondent pawned some of these items, while others were found in
his hotel room, where he was arrested
on 17 April 2013.
[12]
The respondent confessed, in writing, to his crimes the next day and
co-operated fully with the police, claiming to have suffered
from
depression and suicidal tendencies as a result of what he had done.
He said that he, during the period between his attack
on the deceased
and the arrest of himself, had 'used a substantial amount of drugs
and consumed a lot of alcohol'. The respondent
also made a number of
formal admissions in terms of s 220 of the Criminal Procedure Act 51
of 1977 (the CPA), including the fact
that the deceased had died as a
result of the injuries inflicted upon him by the respondent.
[13]
After the respondent had been duly convicted, the State led the
evidence of Dr Janette Verster, the forensic pathologist who
had
undertaken the postmortem examination of the deceased. It would
appear that the respondent must also have tied up the deceased
around
the wrists and either have throttled or attempted to throttle the
deceased before he left. Otherwise, the pathologist's
findings were
consistent with the admissions made by the respondent in his plea
explanation.
[14]
The State proved a number of previous convictions against the
respondent, accumulated since 2007: theft, receiving stolen property,
drunken driving, assault and kidnapping. On appeal, his sentences
for assault and kidnapping were taken together for purposes
of
sentencing and reduced to four years' imprisonment to which the
provisions of s 276(1)(i) of the CPA applied. In other words,
subject
to certain conditions, the commissioner had the discretion to release
the respondent on parole earlier. In respect of the
other previous
convictions the respondent had received suspended prison sentences or
fines.
[15]
The respondent testified in mitigation of sentence. He said he was 32
years of age at the time, that his highest level of education
was
'Standard six', that he was married with a ten year old daughter but
appeared to have become estranged from both his wife and
daughter.
The respondent's own childhood was a deprived one. He did not know
his father and was largely brought up by his grandmother.
The
respondent said that he was 'deeply sorry' for what he had done to
the deceased and especially regretted the pain this must
have caused
the deceased's daughter. He consulted a clinical psychologist, Dr
Henk Swanepoel for the purpose of assessing sentence.
The respondent
confirmed as correct that which Dr Swanepoel had recorded in his
report as having been told to him by the respondent
himself.
[16]
As a child, the respondent had been sexually abused and raped while
he was in custody at a so-called 'safe house'. The respondent
considers himself to be heterosexual but worked as a male prostitute
to other men in order to supplement his income as a security
guard
and to further feed his drug addiction. Dr Swanepoel considered that
the respondent may suffer from Borderline Personality
Disorder (BPD).
Dr Swanepoel reported that the respondent appeared to be sincerely
remorseful but was 'emotionally low in functioning
or very immature
which can influence his insight' and was 'emotionally poorly equipped
to effectively deal with demands from the
environment'.
[17]
With the leave of counsel for the respondent and the court, after the
respondent had testified, the State briefly led the evidence
of the
brother of the deceased. That evidence did not add much to the
overall picture. The brother's evidence was that, obviously,
the
murder of the deceased, a 45 year old man, had been deeply traumatic
for his entire family.
[18]
On 4 June 2015, the trial judge sentenced the respondent to 24 years'
imprisonment on count 1 and four years' imprisonment
on count 2. The
court ordered the sentence on count 2 to run concurrently with count
1. As outlined above, the respondent's effective
sentence was
therefore 24 years' imprisonment. The court also ordered the sentence
to take effect from the date upon which he had
been convicted, viz 28
July 2014. As mentioned previously, the trial court, failed to
consider the minimum sentence provisions
relating to the taking of a
motor vehicle during the course of the robbery and, quite obviously,
in so doing, failed to make a
finding as to whether there were
substantial and compelling circumstances present which justified a
sentence less than the prescribed
minimum.
[19]
Both the State and the respondent thereupon applied for leave to
appeal, the respondent first and then the State. The court
a quo
granted both parties leave to appeal to this court against sentence
only. The question of whether both parties could argue
the appeal was
clarified after a question by the State. It was made clear that the
State would have a right to cross-appeal in
respect of sentence. The
appeal was heard by this court on 11 November 2016.
[1]
On 24 November 2016 this court handed down its judgment in the
matter, the order of which reads as follows:
'
1
The appeal is upheld.
2
The sentence of 24 years' imprisonment imposed by the court below in
respect of the murder and the order antedating the operation
of the
sentences to 28 July 2014 are set aside. The order of the court below
is substituted with the following:
"
On
count 1, the accused is sentenced to undergo 18 years' imprisonment.
On count 2, the accused is sentenced to undergo 4 years'
imprisonment
which is ordered to run concurrently with the sentence imposed on
count 1.
"
3
The effective sentence of 18 years' imprisonment is antedated to 4
June 2015
.'
[20]
For reasons that are not clear, this court overlooked the State’s
notice of appeal dated 10 June 2015 which included
the cross-appeal
on count 2. In its previous judgment this court noted that leave to
appeal against sentence had been given to
both the State and the
respondent. The court observed, however, that it was not clear
against which sentence leave had been granted
and said that the
appellant (now the respondent) had directed his notice of appeal
against the sentence imposed in respect of the
murder only, that the
State had filed no notice of appeal and that therefore there was
therefore no ‘cross-appeal’
by the State. This was not,
in fact correct. The court said that the appeal was restricted to the
question of the sentence of 24
years on count 1, the count of murder.
Accordingly, it did not consider the question of the prescribed
minimum sentence of 15 years
in respect of count 2. This court did,
however, consider the applicability of the minimum sentence for the
murder count as
provided for in s 51(2)
(a)
(i)
of the Act and decided that, in all the circumstances of the matter,
more than the prescribed minimum sentence of 15 years'
imprisonment
was required.
[21]
This court found that the trial court's order antedating the
sentences was incompetent and could not be allowed to stand: in
terms
of the CPA, only an appellate or reviewing court may antedate
sentences. In its concluding remarks, this court observed
that
'it would be wise to set out in this order the full sentence so as to
avoid any misunderstanding that could otherwise occur'.
[22]
Even if the plea bargain at the beginning of the trial was made with
the intention of avoiding a prescribed minimum sentence
on count 2,
the record makes it clear that the respondent could have been under
no illusions that a plea of guilty to robbery (
simpliciter
)
could not avoid the clear provisions of the Act. His counsel
even confirmed the applicability of the minimum sentence provisions
before the trial court.
S
v Malgas
[2]
has made it plain that the prescribed minimum sentences are to be
respected by the courts.
[3]
There are no substantial and compelling circumstances justifying a
departure from the minimum sentence in respect of count 2.
[23]
Nevertheless, to superimpose 15 years’ imprisonment on count 2
and to leave that sentence to run entirely consecutively
with the
sentence of 18 years’ imprisonment previously imposed by this
court for the murder would entail an effective sentence
of 33 years'
imprisonment. Counsel for the State eventually conceded that, if left
undisturbed, the cumulative effect of the sentence
would be
excessive. She asked for an effective sentence of 25 years’
imprisonment. To order that the sentence on count 2
should run
concurrently in its entirety would render the prescribed minimum
sentence provisions nugatory. It would also not take
into account the
gravity of the offences, as a whole, as well as the fact that the
State correctly submitted that the murder and
the robbery were
committed with separately formed intentions. We are of the view that
10 years of the sentence on count 2 should
be ordered to run
concurrently with the sentence imposed on count 1. The result will
effective sentence of 23 years’ imprisonment.
That will be
appropriate in all the circumstances.
[24]
The following order is made:
1
The appeal is upheld.
2
The sentence of four years' imprisonment imposed by the court below
in respect of count 2 and the order antedating that sentence
to 28
July 2014 are both set aside and substituted with the following:
‘
On
count 2, the accused is sentenced to undergo 15 years' imprisonment
of which 10 years are to run concurrently with the sentence
imposed
on count 1 antedated to 4 June 2015.'
3
The respondent is therefore sentenced to an effective 23 years'
imprisonment.
______________________
N P WILLIS
Judge of Appeal
APPEARANCES:
For
Appellant:
P Vorster
Instructed by:
Director of Public
Prosecutions: Pretoria
c/o
Director of Public Prosecutions: Bloemfontein
For
Respondent:
MC Ndalane (with her, JM Mojuto)
Instructed by:
Legal Aid South Africa,
Pretoria
c/o Legal Aid South
Africa, Bloemfontein
[1]
S v Plekenpol
[2016]
ZASCA 171
; 2016 JDR 2205 (SCA).
[2]
S v
Malgas
2001 (2) SA 1222 (SCA).
[3]
Para 25.