About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2007
>>
[2007] ZASCA 51
|
|
S v Nel (318/06) [2007] ZASCA 51; [2007] 4 All SA 709 (SCA); 2007 (2) SACR 481 (SCA) (11 May 2007)
Links to summary
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case no: 318/06
REPORTABLE
In
the matter between:
JOHANNES
DE WET NEL .......................... APPELLANT
and
THE
STATE .......................... RESPONDENT
Before: Cameron et
Mlambo JJA et Musi AJA
Heard: 20 March 2007
Delivered: 11 May
2007
Summary: Sentence - substantial
and compelling circumstances – financial pressures and drug
addiction - and other factors –
on appeal - sentence of fifteen
years set aside –
S
v Wasserman
2004 (1)
SACR 251
(T) criticised.
Neutral citation:
This judgment may be referred to as
Nel
v The State
[2007] SCA 51
(RSA)
JUDGMENT
MLAMBO
JA
[1] On 2 March 1999
the regional court sitting in Port Elizabeth convicted the appellant,
pursuant to his guilty plea, of armed robbery
with aggravating
circumstances. He had committed the robbery on 19 February 1999.
On 13 August 1999 after hearing expert evidence
in mitigation the
regional court sentenced him to 15 years’ imprisonment in terms
of s 51(2)(b) of the minimum sentencing
legislation (Criminal
Law Amendment Act, Act 105 of 1997).
[2] The protracted
delay in the appeal being heard eight years later deserves
explanation. The regional court refused appellant’s
application
for leave to appeal in terms of
s 309(1)(c)
of the
Criminal
Procedure Act 51 of 1977
. He then petitioned the Eastern Cape
division of the High Court for leave to appeal against sentence. This
also was refused on 28 September
2000. Four years later, on
3 November 2004, the appellant lodged a review application in
that division seeking an order to set
aside the refusal of his
petition and an order granting him leave to appeal to that division
alternatively to this court. This was
a strange step and obviously
ill-conceived as Froneman J (Erasmus and Plasket JJ concurring),
pointed out when he dismissed that
application on 26 October 2005.
[3] No doubt having
at last received correct advice, the appellant applied to the Eastern
Cape division for leave to appeal to this
court against the decision
refusing his petition. That application was granted by Pickering J
(Plasket J concurring). This is therefore
an appeal against the
refusal of the appellant’s petition (see
S
v Khoasasa
2003
(1) SA 123
(SCA)).
[4] The undisputed
facts are the following: on the morning of 19 February 1999, the
appellant, armed with a firearm, went to
the Lorraine Entertainment
Centre in Port Elizabeth, held up the staff, locked them in the
ladies’ toilet and robbed them of
an amount of R32 595. He was
arrested on the same day and when he appeared in the regional court
on 2 March 1999 he pleaded guilty
and was convicted.
[5] His guilty plea
in terms of
s 112
of Act 51 of 1977 states,
inter
alia
,
that he ‘committed this crime as a result of financial pressure
from gambling and my business enterprises’. It also
states that
he used his personal revolver, having removed the bullets before the
robbery. These facts were not disputed by the state
when accepting
the plea.
[6] The appellant
testified in mitigation of sentence and also called a clinical
psychologist, Mr Barend Christoffel Breedt. The appellant’s
evidence was that he was suffering from a gambling addiction which
had started in 1994 and which he had failed to kick despite stopping
for a short while in 1995 but which flared up again in 1996. In 1998
he gambled away ±R400 000 (R300 000 at the Fish River
Sun,
R40 000 at the Lorraine Entertainment Centre and R60 000 at the
777 Casino also in Port Elizabeth). He stated that gambling
had
consumed him to such an extent that gambling houses had recognised
him as one of the top ten gamblers and rewarded him with the
status
of ‘most valued guest’ (MVG). This status entitled him to
free accommodation, food and drinks whenever he visited
the casinos.
He testified that he spent practically all his weekends and spare
time gambling.
[7] He had been
generating an income in the region of R117 000 per month from a
Telkom guarding contract and from his gardening contracts.
Despite
this income he steadily sank into the red because of his penchant for
gambling. He had a monthly wage bill of some R87 000
and because of
gambling he found himself in dire straits from November 1998 when
Telkom opted to pay him monthly instead of weekly.
On 5 February
1999 Telkom cancelled his contract. In addition he was experiencing
problems with his gardening contracts –
a situation that led to
his overheads far outstripping his income and rendering him unable to
pay his staff their wages. He started
taking loans from money lenders
but gambled the money away in the hope of winning.
[8] On the morning
of 19 February 1999, he told the court, he desperately needed money
to pay his guards who were camped at his house
waiting for their
wages. He was able to source a loan of R1 200 early that morning from
a money lender, and proceeded to Lorraine
Entertainment Centre to
gamble – hoping to make more money to be able to pay his
guards. He hit a winning streak and at some
stage had R4 500. As
this was not enough to pay his guards he continued gambling but then
lost everything. That was (he said)
when he decided to rob the
Lorraine Entertainment Centre.
[9] He went to his
house, took his firearm and emptied it of all live rounds, put on a
balaclava to cover his face, and put a falsified
number plate at the
front (though not the back) of his car and drove to the Lorraine
Entertainment Centre. On arrival he sat in his
car for some time
contemplating whether to go ahead with his plan. He eventually
decided that he had no choice and went in. He proceeded
to hold up
the manageress, rounded up all the staff, locked them inside the
ladies’ toilet and then took an amount of R32 595
and left. He
went to his girlfriend’s house where he left the loot and took
R500 and went to the 777 Casino to gamble yet more.
In a very short
time, that is where the long arm of the law caught up with him and he
was arrested followed by the recovery of the
loot at his girlfriend’s
residence the next day. It appears from his evidence that his
childhood was by no means happy, being
apparently dominated by
feelings of inadequacy in relation to his father. This, too, he and
his expert witness linked to his gambling
pathology.
[10] The essential
features of the evidence of Mr Breedt were that: generally the
appellant was emotionally immature and compulsive,
had feelings of
inadequacy and low esteem which drove him to live in a fantasy world,
which enabled him to compensate for those feelings
and which affected
his ability to take rational decisions within the context of his
circumstances; that he was a compulsive gambler
with little or no
insight into that situation, that he suffered from a personality
defect manifesting in a pathological gambling
problem and a
narcissistic personality; that he had reached the third and last
phase of gambling addiction which was a disorganised
phase where
gambling had completely taken over his life manifested by him
completely losing control over his life, and that he remained
a
danger to society unless he received treatment for his addiction.
[11] Mr Breedt
testified that the appellant needed long-term psychological treatment
to deal with his gambling addiction and that
long-term imprisonment
and the appellant’s removal from gambling facilities without
the necessary psychological treatment would
have no effect on him. He
refuted the notion that the appellant was driven merely by
egocentricism and self-centredness when he committed
the offence. He
stated that as far as he was concerned the stupidity of the appellant
in robbing a place in which he was well-known
showed that he had
become desperate in his specific gambling situation, a direct
indication that his ability to take rational decisions
had become
impaired.
[12] In imposing the
sentence of 15 years the regional magistrate treated the appellant as
a first offender, and stated that he was
enjoined to apply s 51(2)(b)
of Act 105 of 1997 and further that, as robbery with aggravating
circumstances was a very serious
offence, he was obliged to impose a
minimum sentence of 15 years unless it was shown that there were
substantial and compelling circumstances
justifying the imposition of
a lesser sentence. The regional magistrate found that the fact that
the appellant had emptied his firearm
before he committed the robbery
was irrelevant because his victims had no way of knowing that he had
done so, that the fact that
the money he robbed had been recovered
was not due to his cooperation but was due to the diligence of the
police and therefore this
did not lower the moral blameworthiness of
his deed. The regional magistrate reasoned that the fact that the
appellant derived no
benefit from the robbery, that he had led an
exemplary life and was, in his middle age, a first offender and had
showed remorse by
pleading guilty, that there was no harm occasioned
to his victims and his unfortunate childhood were all factors which
any court
would take into account in the normal course in mitigation
of sentence. In his view however the minimum sentencing legislation
required
something more to qualify as substantial and compelling
circumstances: the mere absence of aggravating circumstances did not
imply
there were substantial and compelling circumstances. He found
that in the appellant’s personal circumstances he could find
nothing exceptional save that his personal situation was a lot better
than the average robber. He found that the appellant committed
the
offence to maintain a certain lifestyle which could never be an
acceptable reason. He concluded that even if he were to accept
that
the appellant was a compulsive gambler he could not accept that it
was a valid excuse.
[13] In this court
counsel for the appellant criticised the regional court’s
reasoning as rigid and incorrect. Counsel submitted
that the regional
magistrate was clearly wrong in the light of
S
v Malgas
2001
(1) SACR 469
(SCA). Counsel submitted that the appellant’s
pathological gambling had made drastic inroads into his ability to
make rational
decisions and should have been viewed on its own as a
mitigating factor and was in the nature of things a substantial and
compelling
circumstance justifying the imposition of a sentence less
than the ordained minimum.
[14] Counsel relied
for these submissions on the decision in
S
v Wasserman
2004
(1) SACR 251
(T). In that case the Pretoria High Court (Patel J,
Fourie AJ concurring) imposed a sentence of correctional supervision
in terms
of s 276(1)(i) on a person who had stolen more than R1
million to finance a gambling addiction. The Court arrived at this
sentence
by relying, firstly, on an academic article which apparently
suggests that pathological gambling is a disease. The Court also
referred
to the Canadian decision in
R
v Daniel S
Bambury
2001
NSSC 73
and the Australian decision in
R v
Petrovic
[1998]
VSCA 95
and concluded that pathological gambling was on its own a
mitigating factor and qualified as a substantial and compelling
circumstance
justifying the imposition of a sentence less than the
ordained minimum.
[15] In my view the
reasoning in
Wasserman
was unnecessarily
overbroad, and it is not surprising that the Court was unable to find
support for its views in the South African
jurisprudence.
In my view the
Court's approach was so broadly expressed as to amount to an undue
relegation of the retributive and deterrent elements
in sentencing in
favour of the rehabilitative and reformative elements. Indeed it
could open the door to undue reliance by gambling
addicts on their
addiction to escape an appropriate sentence in the form of direct
imprisonment.
[16] A gambling
addiction, like alcohol or drug addiction, can never operate as an
excuse for the commission of an offence. In
S
v Sithole
2003
(1) SACR 326
(SCA) this court found that alcohol addiction can not be
an excuse for driving under the influence of alcohol. Conradie JA
stated
at 329g–h:
‘
[7]
Courts in this country have long acknowledged that alcohol addiction
is a disease and that it would be to the benefit of society
and of
the offender if the condition can be cured. But it is necessary to
make the obvious point that drunken driving is not a disease.
One is
distressingly familiar with maudlin pleas in mitigation that the
drunken driver in the dock is an alcoholic, as if the disease
excused
the crime. It does not.’
What is more, a
reading of
R
v Petrovic
[1998]
(supra) reveals that it does not support the approach in
Wasserman
.
That case, like
Wasserman
and this case, had
to do with a pathological gambler who had committed crimes actuated
by the addiction (the offences in
Petrovic
ranged from theft to
fraud). Delivering the main judgment, Charles JA stated:
‘
20.
The fact that an offender was motivated to the commission of the
crimes in question by an addiction to gambling will, no doubt,
usually be a relevant, and may be an important consideration for a
judge sentencing the offender for these crimes. But as Tagdell,
J.A.
said in
R.
v Cavallin
(…)
“It is . . . important that the public does not assume that a
crime which is to some extent generated by a gambling
addiction, even
if it is pathological, will, on that count, necessarily be immune
from punishment by imprisonment.”
21.
It is considerations such as these which have led this Court to say
more than once that it will be a rare case indeed where an
offender
can properly call for mitigation of penalty on the ground that the
crime was committed to feed a gambling addiction;. .
.’
The ratio is thus
clear. Whilst a gambling addiction may be found to cause the
commission of an offence, even if it is pathological
(as in this
case), it cannot on its own immunise an offender from direct
imprisonment. Nor indeed can it on its own ‘
be
a mitigating factor, let alone a substantial and compelling
circumstance justifying a departure from the prescribed sentence’
,
in the words of Stephan Terblanche in
South
African Journal of Criminal Justice
(2004)
17 at 443 who, correctly in my view, criticises the approach in
Wasserman
.
[17] To find
substantial and compelling circumstances, we must thus look more
broadly. I turn therefore to consider the alternative
submission
advanced by the appellant’s counsel that the appellant’s
addiction viewed with the other factors amounted
to substantial and
compelling circumstances. Counsel for the state, whilst lamenting the
reliance on
Malgas
,
which was not available when the regional magistrate passed sentence
and when the Eastern Cape High Court refused the petition,
submitted
in this court that none of the other factors advanced amounted to
substantial and compelling circumstances, that in fact
the appellant
was driven by egocentricism and the desire to maintain a certain
lifestyle when he committed the robbery. For these
reasons she
submitted that the 15-year sentence was justified.
[18] The plain fact
is that when the regional magistrate imposed the sentence, and the
Eastern Cape High Court refused the petition,
the decision in
S
v Malgas
(supra)
had not yet been handed down. There this court settled the issue
regarding the correct meaning of ‘substantial and compelling
circumstances’ and the approach to be followed in applying it.
It was not and cannot be contended that the decision is not
applicable. This court stated at 477j–478b:
‘
To
the extent therefore that there are
dicta
in
the previously decided cases that suggest that there are such factors
which fall to be eliminated entirely either at the outset
of the
enquiry or at any subsequent stage (eg age or the absence of previous
convictions), I consider them to be erroneous. Equally
erroneous, so
it seems to me, are
dicta
which
suggest that for circumstances to qualify as substantial and
compelling they must be “exceptional” in the sense
of
seldom encountered or rare. The frequency or infrequency of the
existence of a set of circumstances is logically irrelevant to
the
question of whether or not they are substantial and compelling.’
[19] It is apparent
therefore, with the hindsight of the
Malgas
decision, that the
regional magistrate was incorrect in his approach. Clearly all
factors are relevant; the essential question is
whether any or some
or all of them amount to substantial and compelling circumstances
within the contemplation of the legislation.
[20] As previously
mentioned, in his written guilty plea the appellant stated that he
‘committed this crime as a result of financial
pressure from
gambling and my business activities’. These facts were accepted
by the state and in convicting him the regional
magistrate stated
that the appellant was found guilty ‘ooreenkomstig u pleit van
skuldig’. Clearly this entails that
the state is bound by those
facts (compare
S
v Groenewald
2005
(2) SACR 597
(SCA)). Those facts show that the appellant’s
financial pressures and his gambling addiction were inextricably
linked to the
other relevant factors, such as that he was a first
offender and showed remorse by his guilty plea. They certainly should
not have
been found to be irrelevant but deserved appropriate
consideration and effect in the sentencing process. The financial
pressures
caused by the gambling addiction were clearly pivotal in
the appellant’s decision to commit the robbery. His objective,
in
that skewed state of mind, attested to by Mr Breedt, was to rob to
have access to money to ease his financial burdens which in turn
would enable him to continue gambling. In this regard Breedt
testified, and he was not seriously challenged in this, that the
appellant
was at the third and last phase of gambling addiction and
that he was in an almost panic condition illustrated by the absurdity
and
improbability of how he went about committing the robbery. These
factors and others – such as that he ultimately derived no
benefit from the offence, emptied his firearm, did not physically
injure the victims, that the robbery was amateurish to say the
least,
involving a place where he was so well known – are demonstrably
weighty in assessing whether there are substantial and
compelling
circumstances.
[21] In my view all
these factors show that there were indeed substantial and compelling
circumstances that permitted the regional
court to impose a sentence
less than the ordained minimum of 15 years. In my view, instead of
the 15 year sentence a sentence of
10 years was appropriate in the
circumstances.
[22] In the
circumstances the appeal succeeds and the sentence imposed by the
regional court is set aside and replaced with a sentence
of 10 years’
imprisonment.
___________
D
MLAMBO
JUDGE
OF APPEAL
CONCUR:
CAMERON
JA
MUSI AJA