S v Dippenaar (173/06) [2006] ZASCA 141; [2006] SCA 169 (RSA) (1 December 2006)

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[2006] ZASCA 141
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S v Dippenaar (173/06) [2006] ZASCA 141; [2006] SCA 169 (RSA) (1 December 2006)

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THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
Case no: 173/06
NOT
REPORTABLE
In the matter
between:
ANDRIES
PETRUS DIPPENAAR APPELLANT
v
THE STATE
RESPONDENT
Coram: Farlam,
Mthiyane, Mlambo JJA
Heard: 3
November 2006
Delivered: 1
December 2006
Summary: Sentence –
multiplicity of sentences resulting in effective total of 16 years –
severity thereof – trial court underemphasising
personal
circumstances and overemphasising seriousness of offences –
misdirection by trial court in not considering unchallenged
evidence
demonstrating remorse – effective sentence of 16 years sufficiently
disparate to sentence proposed on appeal – interference
on appeal
warranted – appeal upheld.
Neutral
citation: This case may be cited as
Dippenaar v The State
[2006] SCA 169 (RSA)
_____________________________________________________________________
JUDGMENT
___________________________________________________________
MLAMBO JA
[1] On 24 April 1998
the appellant was convicted in the Bellville Regional Court on three
counts of attempted housebreaking with intent
to steal, one count of
housebreaking with intent to steal and theft, eight counts of fraud,
one count of theft of a motor vehicle
and one count of reckless
driving in contravention of s 120(1) of Act 29 of 1989. He was
sentenced to 18 months’ imprisonment on
each of the attempted
housebreaking counts, four years imprisonment on all the fraud counts
taken together, three years imprisonment
on the housebreaking and
theft count, four years imprisonment on the motor vehicle theft count
and was sentenced to a fine of R1
500 or six months imprisonment on
the reckless driving count. The sentences were not ordered to run
concurrently, resulting in an
effective sentence of 16 years. The
appellant appeals against the sentence with leave of this court
having been unsuccessful in an
appeal to the Cape High Court
(Traverso DJP and Van Zyl J).
[2] The appellant’s
spree of criminal activity, if one may call it that, started on 17
June 1997 when he attempted to break into
a residence in Angelier
Street, Bellville, but got cold feet and left without taking
anything. The next day he again attempted to
break into a residence
in Hohenaar Street, Stellenberg but also left without taking
anything. On 14 July 1997 he broke into
a residence in Syble
Street, Bellville and stole a television set and a ladies handbag
containing a purse and a Nedbank cheque book.
[3] From 15 to 28
July 1997 he drew eight cheques on the stolen cheque book for amounts
totalling R2 903,63. It is these transactions
that formed the basis
of the fraud charges.
[4] On 1 August 1997
he entered the Green Point Health & Racquet Club and removed the
keys of a Toyota Camry motor vehicle, from
the change rooms, and
drove away in the vehicle, which belonged to a patron of the Club.
After driving around aimlessly he left the
stolen motor vehicle in a
parking lot. On 11 August 1997 he drove the stolen motor vehicle
to a residence in Bosch Street, Durbanville
where he attempted to
break in but his courage again deserted him and he left without
taking anything. Later that day, whilst driving
around in the stolen
motor vehicle he was spotted by the police who were on the look out
for the vehicle. When they tried to stop
him he, in a reckless
manner, sped away in an attempt to evade arrest and drove through an
intersection, whilst the traffic lights
were red. He eventually
caused a collision and was arrested.
[5] Subsequent to
his arrest he bared all, giving the police details of all his
criminal exploits till then. He went as far as to
show the police the
different residences where he had attempted to break in. It is not in
dispute that until he made the disclosures
about the attempted
housebreakings, in particular, the police were not aware of their
commission.
[6] In mitigation of
sentence the appellant ascribed his brief criminal spell to stress
and depression. This, he told the trial court,
was a consequence of
his suffering from an incurable and severe type of skin disease known
as atopic eczema. He testified that he
was born with the disease and
throughout his life had been on treatment without notable success.
Though he had achieved some success
after he became gainfully
employed, such as the time when he was employed as a salesperson, in
winning certain prestigious awards,
but in 1996 the disease had
apparently taken a turn for the worst. At about the same time he was
divorced from his wife and was separated
from his son. He was also
retrenched from his work, which led to the loss of his house in
Gauteng. This left him with no option but
to return to the Western
Cape where he took up residence with his sister. Due to this down
turn in his fortunes, he testified, he
had become very depressed and
this drove him to commit the offences.
[7] When the
magistrate sentenced him, he made reference to his personal
circumstances, particularly his severe skin disease. The
magistrate
stated that he would disregard the appellant’s previous conviction
for theft which had taken place some 10 years before.
The magistrate
then went on to state that some of the offences the appellant had
been convicted of, in particular those for fraud
and motor vehicle
theft, were very serious and, in the interest of the community,
warranted severe punishment. The magistrate expressed
doubt regarding
the appellant’s remorse as well as the effect, if any of depression
on his conduct. The magistrate appears to have
found aggravation in
the appellant’s choice of shop (Woolworths), its location (the
Waterfront) and the items he bought with the
stolen cheques. He came
to the conclusion that, save for the reckless driving offence, the
other offences warranted direct imprisonment.
In this regard the
magistrate found that prison conditions would not aggravate the
appellant’s skin condition and that he would
receive treatment in
prison.
[8] This being an
appeal regarding sentence, I am mindful of the fact that punishment
is a matter for the discretion of the trial
court and that this
court’s power to interfere is restricted to those instances where
we find that the trial court did not exercise
its discretion in a
proper and judicial manner. A trial court is said to have failed to
exercise its discretion properly and judicially
where the sentence is
vitiated by irregularity or misdirection or is ‘disturbingly
inappropriate’ or sufficiently disparate and/or
is totally out of
proportion to the magnitude of the offence.
S
v Rabie
1975 (4) SA 855
(A) at 857D- F
and
S v Salzwedel
and others
1999 (2) SACR 586
(SCA) at 591G.
[9] It is apparent
that even though the magistrate stated that he took account of the
appellant’s personal circumstances, these
appear to have had no
bearing on the sentences he imposed. The magistrate had heard
unchallenged evidence that the appellant was
suffering from acute
depression at the time he committed the offences. The short period of
time (two months) within which all the
offences were committed is
demonstrative of this. Considering the effective sentence imposed (16
years) one cannot resist finding
that these factors were not accorded
due weight by the magistrate.
[10] It is also
notable from the reasoning of the magistrate that he was preoccupied
with the view that the appellant was attempting
to hide behind his
skin condition to escape a prison sentence. The consequence of the
magistrate’s approach was to underemphasize
his illness and to
overemphasize the seriousness of the offences.
[11] It is also
clear that the disposition of the magistrate was towards a heavy
sentence due to his view that the appellant had committed
serious
offences. Perhaps the clearest indicator that the magistrate was
inclined towards a heavy sentence is found in his expression
of doubt
regarding the appellant’s remorsefulness. This was a clear
misdirection as there was ample and uncontradicted evidence
at the
magistrate’s disposal showing that the appellant was remorseful. In
this regard it was common cause, as stated earlier,
that when the
appellant was arrested it was only in regard to the motor vehicle
theft and reckless driving charges. It was due to
his disclosures and
cooperation with the police that the other offences he had committed
came to light. He had also made a confession
and pleaded guilty. This
in my view was the clearest demonstration of remorse by an accused
person and deserved to have weighed heavily
with the magistrate.
[12] In the final
analysis considering the cumulative effect of the sentences imposed
by the magistrate I am of the view that the
16 year sentence is
disturbingly inappropriate when account is taken of the appellant’s
personal circumstances. In
S v Holder
1979 (2) SA 70
(A)
Rumpff CJ had this to say in this regard at 81B:
‘
Die gemeenskap
verwag dat ‘n ernstige misdaad gestraf sal word, maar verwag ook
tewens dat strafversagtende omstandighede in ag
geneem moet word en
dat die beskuldigde se besondere posisie deeglike oorweging verdien.’
[13] Taking account
of the appellant’s acute depression at the time he committed the
offences, the short period within which he
did this and his
unconditional show of remorse I am of the view that an effective
sentence of ten years imprisonment was more appropriate
under the
circumstances. This would have struck a balance between the
appellant’s personal circumstances, the seriousness of the
offences
and the interests of the community. Clearly interference is justified
as the effective 16 year sentence imposed by the magistrate
is
sufficiently disparate to the one for ten year I find appropriate.
[14] It follows
therefore that the appeal must succeed. In the circumstances the
following order is granted:
1. The appeal
succeeds.
2. The order of the
trial court is set aside and replaced with the following:
‘(i) On counts 1,
2 and 13, taken together, the accused is sentenced to 18 months
imprisonment which is wholly suspended for five
years on condition
that the accused is not convicted of housebreaking or any other
competent verdict on that charge committed within
the period of
suspension.
(ii) On count 3 the
accused is sentenced to three years imprisonment.
(iii) On counts 4 to
11, taken together, the accused is sentenced to four years
imprisonment.
(iv) On count 12
the accused is sentenced to three years imprisonment.
(v) On count 14 the
accused is sentenced to 6 months imprisonment. It is ordered that
this sentence is to run concurrently with the
sentence imposed in
count 12.’
____________
D
MLAMBO
JUDGE
OF APPEAL
CONCUR:
FARLAM
JA
MTHIYANE
JA