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[2008] ZAWCHC 161
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Daniels v S (A445/2007) [2008] ZAWCHC 161 (7 March 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO:
A445/2007
DATE:
7
MARCH 2008
In
the matter between:
JOHN
DANIELS
Appellant
and
THE
STATE
Respondent
JUDGMENT
BUDLENDER.
AJ
:
[1]
On the evening of 15 October 2003 two robberies took place at
Plumstead in Cape Town. The first robbery was at the home of the
Claase family at No. 1 Pier Lane, Constantiaberg Close. The second
robbery took place shortly thereafter at the home of the Bird
family
which was across the road from the Claase home. Each of the robberies
was carried out by three men.
[2]
The appellant and another man, Chantino Solomons, were arrested and
prosecuted on a variety of charges arising from the two
robberies. Mr
Solomons was acquitted. The appellant was convicted on the first,
second and fourth charges, each of which was
a charge of robbery with
aggravating circumstances. He was sentenced to 10 years' imprisonment
on each charge. The Court ordered
that the sentences on the first and
second charges were to run concurrently. The result was that the
effective sentence Imposed
upon him was imprisonment for 20 years.
The appellant appeals against both his conviction and the sentences
imposed upon him.
[3]
The evidence against the appellant comes down to three things. First,
identification evidence at an identity parade which was
held; second,
the finding of his fingerprints at the Claase home; third, the
inference that the persons who robbed the Bird home
were the persons
who had robbed the Claase home.
[4]
The identification evidence was not strong. The learned magistrate
correctly, in my view, placed no reliance on the identification
evidence of Mr Bird and Mrs Bird. In assessing the evidence of Aidan
Claase, who identified the appellant at the identity parade,
the
learned magistrate pointed out that he had also identified two
persons who were not suspects and who, one must assume, were
innocent. Mr Claase also very fairly conceded under
cross-examination that it was possible that he had made a mistake as
far
as accused number 1 was concerned. The learned magistrate
correctly found that the evidence of Aidan Claase standing alone was
not a sufficient basis for a conviction.
[5]
However, the learned magistrate found corroboration for the
identification evidence of Mr Claase in the form of the fingerprint
of the appellant which was found on a candle box in the bedroom of Ms
Farrell CEaase on the night of the incident. The appellant
was unable
to provide any explanation of how his fingerprint had come to be on
an item in the house in question on the night in
question. The
evidence was that the robbers had been into the bedroom of Farrell
Claase during the robbery. Under the circumstances
it is impossible
to avoid the inference that the appellant was one of the robbers who
entered the Claase home on the night in question.
No other reasonable
explanation, not even the most speculative, has been suggested.
[6]
As I have said, the identification evidence was weak. However, it
does add some limited weight to the fingerprint evidence.
Aidan
Claase had adequate opportunity to observe the robbers. If the
appellant was not at the scene of the crime it would be
a remarkable
coincidence if Mr Claase just happened to identify a person whose
fingerprint was found on an object found at the
scene of the crime.
[7]
Standing together, in my opinion, these elements of the evidence lead
one to the conclusion that it has been shown beyond a
reasonable
doubt that the appellant was one of the robbers who entered the
Claase home on the night in question. From this it follows
that the
appellant was correctly convicted on the first and second charges.
[8]
The next question is whether it has been proved that the appellant
was one of the robbers who robbed the home of the Bird famiiy.
There
is neither reliable identification evidence nor any extrinsic
evidence such as fingerprint evidence in that regard. The evidence
shows:
1. The
robbery at the Claase home took place at about 6:45 on the evening of
15 October 2003.
It
lasted for about 10 to 15 minutes.
The
robbery at the Bird home took place at about 7pm.
The
Bird home is across the road from the Claase home,
Mr
Bird saw the third robber running across the road from the home of
his neighbours.
Shortly
after the robbers had left the Claase home, the members of the
Claase family heard a gunshot outside the house.
One
of the robbers fired a shot at Mrs Bird outside her house during the
course of the robbery at the Bird home.
All
of this leads to the irresistible inference that the robbers who
robbed the Bird home were the same men as those who had shortly
before robbed the Claase home. That being so, it must follow that the
appellant, who has been proved to be one of the men who robbed
the
Claase home, was also one of the men who robbed the Bird home.
[9]
Under the circumstances it must follow that the appellant was
correctly convicted on the fourth charge and, in my opinion, the
appeals against the conviction must therefore be dismissed,
[10]
When it came to sentence, the magistrate pointed out that the
prescribed sentence for robbery with aggravating circumstances
is a
minimum sentence of imprisonment for 15 years. He further pointed to
the cumulative effect of imposing the prescribed sentence
on the
appellant on each of the three counts, which would amount to 45
years, which he found would be disproportionate. On this
basis he was
satisfied that there were substantial and compelling circumstances
which justified a departure from the prescribed
sentence. He
accordingly sentenced the appellant to 10 years' imprisonment on each
of the offences and thereafter ordered that
two of them were to run
concurrently.
[11]
With due respect to the learned magistrate, it seems to me that he
did not approach the sentencing task correctly. His first
task was to
determine an appropriate sentence in respect of each of the charges
standing apart from the others. I do not think
it can be said that
the sentences of 10 years on each of the charges of armed robbery
were in any way shocking or disproportionate
and, in my view, those
sentences were properly imposed.
[12]
The learned magistrate's next task was to consider the cumulative
effect of the sentences in order to decide whether any of
them or any
part of them should be served concurrently. That was the appropriate
stage at which to weigh up the cumulative effect.
The learned
magistrate concluded that the sentences in respect of the first and
second offences should run concurrently. The net
effect of this is a
total period of imprisonment of 20 years.
[13]
The first and second offences were both committed in the course of
the robbery at the Claase home. They are so closely connected
that in
my view, even without regard to the cumulative effect, it would be
inequitable to order that the sentences be served separately,
and I
agree that they should be ordered to run concurrently. It seems to
me, however, that the cumulative effect of the third sentence
on the
fourth charge, namely an effective imprisonment of 20 years, is
excessive under the circumstances. Armed robbery is a serious
offence
and should be treated as such by the courts. However, in my view,
justice would be done if seven of the 10 years imposed
in respect of
the fourth charge were to be served concurrently with the sentences
imposed on the first two charges so that the
net effect of the
sentences would be a period of imprisonment for 13 years.
[14]
Under the circumstances I would order as follows:
1.
The appellant's appeal against his convictions is dismissed and the
convictions are confirmed.
2.
The
appeal against sentence succeeds to the
extent that the sentence
is altered to read as
follows:
"1.
On charge 1 the accused is sentenced to imprisonment for 10 years.
2.
On charge 2 the accused is sentenced to imprisonment for 10 years.
3.
On charge 4 the accused is sentenced to imprisonment for 10 years.
4.
It is ordered that:
(i)
the
whole of the sentences on charges 1 and 2 is to run concurrently;
(ii)
seven
years of the sentence imposed in respect of charge 4 are to run
concurrently with the
sentences imposed in respect of charges 1
and 2.
3.
The
net result is that the appellant will serve an effective period of
imprisonment for 13 years.
BUDLENDER,
AJ MOTALA, J
:
i
agree and it is so ordered.
MOTALA,
J