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[2016] ZAGPPHC 1202
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Pooe v S (A753/15) [2016] ZAGPPHC 1202 (29 November 2016)
I
N
THE
HIGH
COURT
OF
SOUTH
AFRICA
GAUTENG
D
I
VISION, PRETORIA
CASE
NUMBER: A753/15
In
the matter between:
HERMAN
NOVI POOE
APPELLANT
And
THE
STATE RESPONDENT
JUDGMENT
KUBUSHI,J:
[1]
The appellant was convicted by the regional magistrate, Nigel, of two
counts, namely, count 1 - housebreaking with intent to
commit an
offence unknown to the state and count 3 - conspiracy to commit
robbery with aggravating circumstances as intended in
section 1 of
the Criminal Procedure Act 51 of 1977 ("the
Criminal Procedure
Act"
;).
[2]
Consequent to such convictions the appellant was sentenced to eight
(8) years imprisonment on each count. He was further deemed
to be
unfit to possess a firearm; and in terms of section 120 (4) of the
Children's Act 38 of 2005 ("the
Children's Act"
;), he was
deemed to be unfit to work in an environment where there are
children.
[3]
The trial court did not order the two imprisonment sentences to run
concurrently. The effect thereof was an effective term of
imprisonment for sixteen (16) years.
[4]
The appellant is not satisfied about the imprisonment sentences
imposed and the sentence in terms of
s 120
(4) of the
Children's Act
and
is, with leave of this court, before us appealing the sentences.
THE
IMPRISONMENT SENTENCES
[5]
The appellant's main ground of appeal is that the effective term of
sixteen (16) years imprisonment imposed on him is shockingly
harsh
and inappropriate. The submission is that the trial court ought to
have taken due regard to the cumulative effect of the
imprisonment
sentences, and ordered the two imprisonment sentences to run
concurrently in terms of
s 280
of the
Criminal Procedure Act. Having
not done so the trial court erred and, as such, the sentences should
be looked at afresh.
[6]
The contention why the trial court should have ordered the two
imprisonment sentences to run concurrently is, according to the
appellant, that the offences are closely linked to each other. The
appellant was sentenced to eight years imprisonment for conspiring
to
commit robbery and another eight years imprisonment for housebreaking
when he wanted to execute the planning, so it was argued.
In this
regard the appellant's counsel referred us to a passage in the
judgment in
S v Kruger
2012
(1) SACR 373
(SCA) para 9.
[7]
The respondent is not opposing the appeal on the imprisonment
sentence and contends that the offences in both charges stem from
a
single transaction. The two offences are closely related to each
other, the one being the planning and the other being the execution
of the plan. Based on that, the respondent's counsel is also of the
view that there is justification for the appeal court to have
a
re-look at the sentences as imposed.
[8]
As is trite, sentencing is generally a matter that lies exclusively
in the domain of the trial court. The court on appeal has
limited
powers to interfere unless there are irregularities, misdirection by
the trial court or the sentence imposed is a sentence
which a
reasonable court will not impose.
[9]
In argument before us at the hearing of the appeal, the respondent's
counsel proposes that only six (6) years of the sentence
in count 3
be ordered to run concurrently with the sentence in count 1, the
effect thereof to be ten (10) years imprisonment. He
further
requested the sentence to be antedated to 26 August 2014.
[10]
The appellant's counsel, however, insists in his argument before us
that the two sentences must run concurrently the effect
thereof to be
eight (8) years imprisonment. His contention is that the two
offences are closely linked and actually happened
at the same time
and as such the sentences should be allowed to run concurrently.
[11]
Where
multiple
counts are closely connected
or similar
in
point
of
time,
nature,
seriousness
or
otherwise,
i
t
i
s
sometimes a
useful,
practical way
of ensuring
that the
punishment
i
mposed
is not unnecessarily
dupl
i
cated
or
its
cumulative effect is not too harsh on the accuse
d
.
[1]
[12]
The current case is on point with the Young-judgment above. The
circumstances in this instance are that the appellant and three
other
gentlemen conspired with the complainant's employee to rob the
complainant at his house. The employee informed the complainant
who
in turn informed the police. The appellant and the three gentlemen
were apprehended by the police after entering the complainant's
house
but before the robbery could take place.
[13]
I am in agreement with the submissions by both counsel that the
sentences imposed in respect of count 1 and count 3 should
be
interfered with. The offences were committed at the same place and at
the same time and, as such, the trial court ought to have
ordered the
sentences to run concurrently. In not doing so, the trial court
misdirected itself. This court is, thus, at large to
interfere with
the sentences imposed by the trial court.
[14]
I am, however, of the view that the two sentences must run
concurrently, the effect thereof to be eight (8) years imprisonment
as argued by the appellant's counsel. The argument by the appellant's
counsel that the two offences are closely linked and that
they
actually happened at the same time is correct. The appellant was
sentenced to eight (8) years imprisonment for conspiring
to commit
robbery and thereafter another eight (8) years imprisonment for
housebreaking when he wanted to execute the plan.
[15]
In terms of
s 282
of the
Criminal Procedure Act, whenever
a sentence
of imprisonment is set aside on appeal or review and any other
sentence of imprisonment is thereafter imposed, the latter
sentence
may, if the court is satisfied that the person concerned has served
any part of the first sentence, be antedated to a
specified date not
earlier than the date on which the first sentence was imposed. The
result is that the sentence so imposed shall
be deemed to have been
imposed on the date so specified.
[16]
In this instance the sentence appealed was imposed on 26 August 2014.
The appellant has from that date been in custody. He
has as such
served part of the sentence he is appealing. It is therefore proper
that the sentence that this court is now to impose
should be
antedated to the 26 August 2014.
SENTENCE
IN
TERMS OF
S 120(4)
OF
THE
CHILDREN'S
ACT
[17
]
Section 120
(4) provides as follows:
'(4)
In criminal proceedings, a person must be found unsuitable to work
with children -
(a)
on conviction of murder, attempted murder, rape, indecent assault or
assault with
the intent to do grievous bodily harm with regard to a
child; or
(b)
if a court makes a finding and gives a direction in terms of section
77 (6) or 78
(6) of the Criminal Procedure Act, 1977 (Act 51 of 1977)
that the person is by reason of mental illness or mental defect not
capable
of understanding the proceedings so as to make a proper
defence or was by reason of mental illness or mental defect
not
criminally responsible for the act which or
mental defect not criminally responsible for the act which
constituted
murder, attempted murder, rape, indecent assault or
assault with intent to do grievous bodily harm with regard to a
child.'
[18]
I am in agreement with the appellant's submission that he was not
convicted of any offence referred to in this section. The
trial court
was as a result not entitled to impose a sentence in terms of this
section. Having done so, it misdirected itself and
this court is thus
entitled to have this sentence set aside.
[19]
In the circumstances I make the following order:
[19.1]
The appeal is upheld.
[19.2]
The sentences imposed by the trial court are
set aside and replaced
by the following:
a.
'Count 1 (housebreaking with intent to commit a crime unknown to the
state) 8 years imprisonment.
b.
Count 3 (conspiracy to commit robbery with aggravating circumstances)
8 years imprisonment.
c.
Both sentences will run concurrently, the cumulative effect thereof
to be 8 years imprisonment.
d.
The sentences are in terms of
section
282
of the
Criminal Procedure Act 51 of 1977
,
antedated to 26 August 2014.
e.
The accused is deemed unfit to possess a firearm.'
_________________________
E.M.
KUBUSHI
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
I
agree
_________________________
H.F.
JACOBS
(ACTING)
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Counsel
for Appellants: H.
STEYNBERG
Instructed
by:
LEGAL AID SOUTH AFRICA
Counsel
for Respondent: C. MNISI
Instructed
by:
THE DIRECTOR OF PUBLIC PROSECUTION
Date
heard:
21 November 2016
Date
of judgment:
29 November 2016
[1]
See
S
v
Young
1977
(1)
SA
602(A)
at
610E
-
H.