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[2016] ZAGPPHC 1089
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Gouws v S (SH1/117/2014) [2016] ZAGPPHC 1089 (13 December 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: SH1/117/2014
13/12/2016
Appeal
Number: A224/2016
Reportable:
Yes
Of
interest to other judges: Yes
Revised.
In
the appeal between:
SANET
GOUWS APPELLANT
and
THE
STATE RESPONDENT
JUDGEMENT
PIENAAR A J
[1]
Appellant was arraigned in the Regional Court at Pretoria North,
Gauteng on 26 August 2014 on one count of a contravention of
section
18(2) of The Riotous Assemblies Act, 17 of 1956, as amended, by
conspiring to commit robbery and one count of attempted
robbery. Both
crimes were committed on 12 May 2014.
[2]
Appellant pleaded guilty to the counts on which she had been
arraigned, and in terms of
section 112(2)
of the
Criminal Procedure
Act, 51 of 1977
, as amended, Appellant's legal representative, (who
was not Mr Pistorius who appeared for her on appeal), prepared a
written statement
setting out the basis of her plea on both counts
wherein Appellant admitted each and every allegation contained in the
counts with
which she had been charged.
[3]
On 26 August 2014 Appellant was convicted on both counts on which she
had been arraigned.
[4]
After conviction on the aforesaid counts, prior to sentence being
handed down, a psychosocial report was prepared which concluded
that
direct imprisonment would be a suitable sentence. A correctional
supervision report in terms of
section 276(1)(h)
of the
Criminal
Procedure Act, 51 of 1977
, as amended, was obtained confirming that
Appellant would be a suitable candidate for correctional supervision.
A victim impact
report was also obtained and presented to the Court
a
quo.
[5]
On 16 October 2014 Appellant was sentenced on count one to six years
imprisonment and on count two to five years imprisonment,
resulting
in Appellant being sentenced effectively to eleven years
imprisonment.
[6]
In terms of section 103(1) of the Fire Arms Control Act, 60 of 2000,
Appellant was declared unfit to possess a firearm.
[7]
After sentence was imposed Appellant proceeded to apply for leave to
appeal on 5 February 2015 against the sentences which had
been handed
down, that was dismissed by the Court
a quo
.
[8]
Subsequent to Appellant's application for leave to appeal being
dismissed, Appellant lodged a petition for leave to appeal and
on 16
March 2016 Appellant was granted leave to appeal against the
sentences handed down by the Court
a quo
.
[9]
Heads of argument were filed and served by Mr Pistorius, on behalf of
Appellant, and Mr Kotze, on behalf of the State, to whom
the Court is
indebted for their able presentations.
[10]
As indicated hereinbefore, Appellant pleaded guilty to both counts on
which she had been arraigned, notwithstanding the fact
that count one
was founded thereon that Appellant together with her co
perpetrators had conspired to commit an offence, to
wit robbery,
which culminated in count two and Appellant's conviction of the
subsequent attempted robbery.
[11]
From the statement prepared by Appellant in terms of
section 112(2)
of the
Criminal Procedure Act, 51 of 1977
, as amended, it appears
that while Appellant had pleaded guilty, her co-perpetrators had
pleaded not guilty, which resulted in
a separation of trials.
Appellant's statement confirmed that Appellant and her co
perpetrators had planned and discussed how
to confront the
complainant in order to rob her of her possessions. These facts were
accepted by the State and resulted in Appellant's
convictions.
[12]
It is clear from Appellant's statement that count one was founded on
the planning to commit the said robbery, which culminated
in
Appellant and her co-perpetrators' common purpose to commit robbery.
[13]
Having regard to the facts, as confirmed by Appellant and accepted by
the State, I am of the opinion that Appellant had been
subjected to a
duplication of convictions, which would be improper and irregular
amounting to a travesty of justice. It is a trite
rule that where an
accused has committed only one offence in substance it should not be
split up and charged against him in one
and the same trial as several
offences. See
S v Dlamini 2016(1) SACR 229 (KZP) at 234e.
[14]
In
S v Grobler en 'n Ander 1966(1) SA 507 (A) at 5136
it was
stated as follows:
"Aan die einde
van die saak is dit die taak van die hof
om
te beslis of daar 'n misdaad bewys is, en
welke misdaad bewys is, en hoeveel misdade bewys is. Indien
dit dan bv., sou blyk dat volgens die bewese
feite twee klagtes in die k/agskrif een en dieselfde strafbare feit
behels, sou die
hof die beskuldigde alleen op een klag skuldig
bevind."
[15]
In order to determine whether there has been a duplication of
convictions the rules formulated are not rules of law, nor are
they
exhaustive. As such they are practical guides supplemented by common
sense, wisdom, experience and a sense of fairness and
justice of the
Court. See
S v Whitehead and Others
2008 (1) SACR 431
(SCA) at
443e - f; S v Dlamini,
supra
,
at
234e
.
[16]
Although no appeal had been lodged by Appellant against her
conviction of conspiracy to commit a robbery, admirably and in
accordance with the honoured tradition of advocacy, counsel for the
State, for which he is commended, properly and correctly conceded
that Appellant' s conviction on count one resulted in a duplication
of convictions which could not be sustained and called to be
set
aside.
[17]
I am satisfied that the concession made by counsel for the State was
proper and well founded, and therefore the conviction
and sentence
handed down has to be set aside.
[18]
The problem which arises is that leave to appeal was granted on
petition only with regard to the sentences handed down and
at no time
did Appellant apply to amend her notice of appeal by the addition of
further grounds of appeal on the merits as well
as an appeal against
the sentences.
[19]
Nonetheless, I am satisfied that in order to prevent an injustice to
Appellant, it would be proper for the Court to exercise
its inherent
jurisdiction to review the matter in order to prevent a travesty of
justice occurring, as provided for by the provisions
of
section
304(4)
of the
Criminal Procedure Act, 51 of 1977
, as amended.
[20]
In the result therefore, I am satisfied that Appellant's conviction
of a contravention of section 18(2) of the Riotous Assemblies
Act, 17
of 1956, as amended, in having conspired to commit a robbery, and the
sentence handed down is to be set aside on appeal.
See
S v Mafu
1966(2) SA 240 (EC) at 241H ; S v Eli 1978(1) SA 451 (EC)
at
452C.
[21]
Turning to the appeal on the sentence handed down on count two, it
was submitted by Mr Kotze that the sentence of five years
imprisonment on the count of attempted robbery be set aside and that
the matter be remitted to the Court
a quo
to consider
and sentence Appellant afresh.
[22]
Thereanent, Mr Pistorius vigorously opposed the submission and
request by Mr Kotze that the matter be remitted to the Court
a
quo
in order to consider and sentence Appellant afresh.
[23]
I am satisfied that all the relevant facts have been presented with
regard to sentence and that this Court is in a position
to hand down
an effective sentence. The dictates of justice and equity militates
against the matter being referred back to the
Court
a quo
in
order to pass sentence afresh.
[24]
Turning to the appeal on the sentence of imprisonment handed down, it
was submitted by Mr Pistorius that a sentence of five
years
imprisonment was harsh and inappropriate, and considering Appellant's
personal circumstances, as well as the circumstances
peculiar to the
case, the Court
a quo
should have concluded that
there were mitigating circumstances justifying the imposition of a
sentence of correctional supervision
rather than imprisonment.
[25]
It was further submitted that the Court
a quo
had
misdirected itself by failing to properly evaluate Appellant's
personal circumstances when weighed against the particular
circumstances
that had prevailed and that were peculiar to the case.
[26]
The result, it was submitted, was therefore that the Court
a quo,
due to the aforesaid misdirection, had over emphasised the
aggravating circumstances present in the case to the detriment of
Appellant's
personal circumstances and the nature and seriousness of
the crime committed, which ultimately resulted in a sentence of
imprisonment
for five years being imposed, which was shockingly
inappropriate and disproportionate inducing a sense of shock. Mr
Kotze, on behalf
of the State, contended that no misdirection had
been committed by the presiding magistrate and that the sentence
handed down,
although harsh, was appropriate and proportional to the
nature and seriousness of the crime committed, especially if regard
was
had to the aggravating factors that complainant had been
assaulted and that entry had been gained by deceit, and although
Appellant
had attempted to intervene, it had been to no avail.
[27]
It is trite law that the Court handing down a sentence is called upon
to consider the personal circumstances of the accused,
the nature of
the crime committed and the interest of society in order to determine
an appropriate sentence. See
S v Zinn 1969(2) SA 537(AD).
[28]
I have no doubt that the presiding magistrate misdirected himself by
over emphasising the seriousness of the crime committed
by Appellant
thereby neglecting to properly consider Appellant's personal
circumstances and the interest of an informed society.
This resulted
in the Court
a quo
concluding that the crime
Appellant was convicted of was serious which society expected to be
dealt with sternly, justifying a term
of imprisonment to be a
deterrent, not only to Appellant, but to others too.
[29]
lt is apposite to have regard to the facts and circumstances that
pertained in this matter. It is common cause that Appellant
was at
the time of her conviction a single mother, 38 years of age, pregnant
and the mother of three minor children and the principal
and primary
caretaker of her minor children. Appellant accepted responsibility
for her deeds, and expressed genuine remorse for
her conduct by
pleading guilty, which was substantiated by the fact that during the
commission of the attempted robbery Appellant
had tried to intervene
when her co-perpetrators assaulted the complainant, but to no avail.
The only disturbing fact is that Appellant
elected not to testify on
her own behalf with regard to sentence, although the contents of the
presentencing reports were common
cause between the Appellant and the
State.
[30]
It was submitted by Mr Pistorius that other sentencing options, other
than direct imprisonment, was available which the Court
a quo
had failed to consider. In this regard it was submitted that
having regard to the facts and circumstances peculiar to this case,
the Court
a quo
should have concluded that a
sentence of correctional supervision in terms of
section 276(1)(h)
of
the
Criminal Procedure Act, 51 of 1977
, as amended, alternatively,
imprisonment in terms of
section 276(1)(i)
of the
Criminal Procedure
Act, 51 of 1977
, as amended, would have been appropriate.
[31]
I am apt to agree that the presiding magistrate was unduly influenced
by the gravity of the crime committed, when called upon
to determine
whether a sentence other than direct imprisonment was justified. The
aforesaid conclusion arrived at by the presiding
magistrate
undoubtedly weighed heavy on his mind and influenced him to consider
and hand down a sentence of direct imprisonment
for five years.
[32]
It is apposite to keep the following dictum of Nugent JA in
S v
Vilakazi 2009(1) SACR 552 (SCA) at 562c
in mind:
'Whether the
prescribed sentence is indeed proportionate and thus capable of being
imposed is a matter to be determined upon a consideration
of the
circumstances of the particular case. It ought to be apparent that
when the matter is approached in that way it might turn
out that the
prescribed sentence is seldom imposed in cases that fall within the
specified category. If that occurs it will be
because the prescribed
sentence is seldom proportional to the offence. For
the essence of Ma/gas and of Dodo is that disproportionate sentences
are not
to be imposed and that courts are not vehicles for
injustice.'
[33]
This the presiding magistrate failed to comprehend and comply with
when he concluded and determined that a sentence of direct
imprisonment for a period of five years was proportional and
appropriate in this particular case.
[34]
Without detracting from the gravity of the crime committed by
Appellant, I am satisfied that when measured on the barometer
of
seriousness, the crime committed does not fall in the utmost callous
and brutal category,
per se
indicative thereof that Appellant
was inherently wicked. No evidence was presented that in Appellant's
case the prognosis for rehabilitation
was out of the question or
negligible.
[35]
Although the current and unprecedented wave of violence, murder,
homicide, robbery and rape imposes a responsibility on the
Courts to
act fearlessly and in unambiguous terms to announce to the world its
repugnance of such conduct, the sentence ultimately
handed down
should nonetheless be blended with a measure of mercy. Such is the
hallmark of an informed and civilised society. See
S v Kumalo
1973(3) SA 697 (AD); S v Sparks 1972(3) SA 396 (AD).
The fact
that the Court
a quo
handed down a sentence of direct
imprisonment substantiates the conclusion that the sentence was not
blended with a measure of mercy.
[36]The
repugnance and abhorrence with which a committed crime is viewed is
not necessarily dependant on the term of imprisonment
imposed. See
S
v Whitehead 1970(4) SA 428 (AD); S v Holder 1979(2) SA 70 (AD).
A
necessary corollary of the aforesaid, is the fact that it is
imperative to meet out punishment, not in a standardised format,
but
with due consideration of the particular facts peculiar to each case.
See
S v Vilakazi,
supra at 560g
-
561c;
S v Sangweni,
supra
at 424b - g.
[37]
On a proper appreciation and evaluation of the circumstances in this
case, I am of the view that the age of Appellant, the
fact that
Appellant was a first offender, supporting her children, that she had
attempted to intervene to prevent the complainant
being injured, that
she pleaded guilty and that she confirmed being willing to testify
against her co-perpetrators undoubtedly
substantiating her remorse
and the fact that she had spend five months in jail awaiting trial
were mitigating circumstances justifying
the imposition of a sentence
other than mere imprisonment for a period of five years.
[38]Having
regard to the aforesaid circumstances, I am satisfied that the Court
a quo
had failed to consider and evaluate the factors
enumerated and to consider the said factors in their proper
perspective to the detriment
of Appellant. Therefore the Court
a
quo
had misdirected itself by over emphasising the
gravity of the crime committed which resulted in a sentence being
handed down which
was shockingly inappropriate inducing a sense of
shock, with the result that this Court is at liberty to set aside the
sentence
of direct imprisonment for five years handed down. Under the
circumstances, I am of the view that imposing a sentence of
imprisonment
for five years, renders the sentence inappropriate
calling for it to be set aside. Therefore this Court is at liberty to
consider
an appropriate and just sentence afresh.
[39]
Consequently I propose that the appeal against the sentence imposed
and handed down by the Court
a quo
be upheld and
set aside on appeal to be substituted with the sentence set out
hereinafter.
[40]
In the result I propose the following order to be handed down:
1.
The conviction and sentence for a contravention
of section 18(2) of the Riotous Assemblies Act, 17 of 1956, as
amended, conspiring
to commit a robbery, is set aside.
2.
The appeal against the sentence of five years
imprisonment on count two is upheld and set aside, and Appellant is
sentenced to imprisonment
for five years in terms of
section
276(1)(i)
of the
Criminal Procedure Act, 51 of 1977
, as amended.
3.
In
terms of
section 282
of the
Criminal Procedure Act, 51 of 1977
, as
amended, the sentence is antedated to 16 October 2014.
4.
In
terms of
section 103
of the
Firearms Control Act, 60 of 2000
,
Appellant is declared unfit to possess a firearm.
______________________
W.
F. PIENAAR
ACTING
JUDGE OF THE HIGH COURT
I
agree. It is so ordered.
______________________
N
MALI
JUDGE
OF TH E HIGH COURT
FOR
APPELLANT:
ADV P PISTORIUS
ATTORNEYS:
EMILE VIVIERS ATTORNEY
PRETORIA
FOR
THE STATE:
ADV JJ KOTZE