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[2007] ZAWCHC 90
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Adams and Another v S (A782/2008) [2007] ZAWCHC 90 (7 September 2007)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO
:
A782/2008
DATE
:
7
SEPTEMBER 2007
In the matter between:
DONOVAN
ADAMS
1
st
APPELLANT
EBRAHEM
PETERS
2
nd
APPELLANT
versus
THE
STATE
RESPONDENT
JUDGMENT
CLEAVER,
J:
The
appellants were convicted in the Regional Court of Cape Town on 26
October 2004 on three counts: count 1 being that of robbery
with
aggravating circumstances; count 3 being possession of an unlicensed
firearm; and count 4 being in unlawful possession of
ammunition.
On
5 November 2004 both appellants were sentenced to 15 years
imprisonment on count 1. Counts 3 and 4 were taken together and in
respect of those counts they were sentenced to three years
imprisonment.The regional magistrate determined that two years
of
that sentence were to run concurrently with the sentence imposed on
count 1, thus an effective terms of 16 years imprisonment.
Leave
to appeal against the convictions and the sentence was refused, but
on petition to this Court the first appellant was granted
leave to
appeal against the convictions on counts 3 and 4, and on the
sentences on ail three counts. The second appellant was given
leave
to appeal against the convictions on counts 3 and 4 only. He did not
apply for leave to appeal against the sentences.
It
is not necessary to deal with the facts of the case, save to say that
on the day in question three accused, that is appellant
No 1,
appellant No 2 and a third accused, entered the home of Mr and Ms
Berry in Milnerton in the afternoon, armed with a firearm
and
thereupon set about robbing the occupants of various items, including
jewellery, a cellphone, watches. In the course of the
entry into the
home, Ms Berry was pistot-whipped by accused No 3, who at that stage
was holding the firearm. The activity in the
home that afternoon had
alarmed the neighbours who had called a security company. Two members
of the security company guarding
the area arrived. In the fracas
which took place thereafter, accused No 3 was tackled by Mr Berry,
who was in turn shot by one
of the security officers, aiming
presumably at accused No 3. Accused No 3 himself was shot and one of
the security officers were
shot.
Appellant
No 1 was unrepresented at the trial and today appears on his own
behalf. Appellant No 2 is represented by counsel.
Let
me deal first with the appeal by appellant No 1 against the
conviction on counts 3 and 4. His case is straightforward. His case
is that he did not handle the gun, he was not found to have handled
the gun, and that therefore he should not be found guilty of
possession of the firearm or unlawful possession of ammunition in
that firearm. The law in this regard is set out in the most recent
case of
S
v Molimi and Anothe
r
SACR 2006(2) page 8. In this case a judgment of the Supreme Court of
Appeal, the judgment in
S
v Mbuli
.
2003(1) SACR at page 97 (SCA), is confirmed and the principles
applicable are set out in the following terms:-
"The
issues which arise in deciding whether the group, and hence the
appellant, possessed the guns must be decided with reference
to the
answer to the question whether the State has established facts from
which it can properly be inferred by a
Court
that:-
the
group had the intention, the
animus,
to
exercise possession of the guns through the actual detental; and
the
actual detentors had the intention to hold the guns on behalf of the
group.
Only
if those requirements are fulfilled can there be a joint possession
involving the group as a whole and the detentors or common
purpose
between the members of the group to possess the guns."
Now
although the term ''common purpose" has been criticised, those
are the requirements. In order for appellant No 1 to be
found guilty
of possession of the firearm and the ammunition, the Court must be
satisfied that the inference can be drawn that
whoever held the gun,
held it on behalf of a!! three robbers, and that all three robbers
had the intention that those who were
holding the gun would be
holding it on behalf of all three robbers. Now in order to establish
whether we can rightfully draw this
inference, it is necessary to
look at the facts on which the conviction was founded.
The
facts are that accused No
2,
plus
an accomplice, arrived at the home in the early hours of the
afternoon clearly in order to establish what the interior of the
house looked like. Later that afternoon accused No 3, plus appeflant
No 1 and appellant No 2 arrived at the house. The house was
entered
r
according
to the evidence of Mr and Ms Berry, by appellant No 2, holding a
firearm. This firearm was then used to subdue the occupants,
who were
made to fie on the floor. The undisputed evidence of Ms Berry was
that the weapon was then handed at a stage to the third
accused, and
the third accused pistol-whipped Ms Berry, causing her to lose
consciousness and to bleed profusely.
Mr
Berry's evidence was to the effect that the weapon had been handled
by all three. I must say that that was an issue which was
not
examined in any detail, and I would be prepared to give appeltant No
1 the benefit of the doubt that it had not been clearly
established
that he held the gun, but that is not the end of the matter for him.
If
the inferences can be drawn to which I have alluded, he would in law
be guilty with the other two of possessing the firearm.
In my view
such inferences can be drawn. The facts are that this robbery was
carefully planned; that he was present while the occupants
were
subdued with the threat of the firearm being used; that the firearm
was then passed to the hands of accused No 3
r
and that while all this was going on, he was enjoying the benefit of
the occupants being threatened by the gun while he and others
collected items which were stolen from the occupants. I am satisfied
that as far as appellant No 1 is concerned, the conviction
MUST
STAND
.
On
behalf of appellant No 2, the submission was made that by charging
the appellant with counts 3 and 4, the State had effectively
brought
about a splitting of.charges. As counsel for the State has pointed
out, Section 83 of the Criminal Procedure Act requires
charges to be
brought in this manner if it is unclear as to which offence has been
committed. So insofar as splitting is concerned,
there is no merit in
the point.
The
State has correctly also submitted what should be considered is
whether there was a duplication of the charges. In my view,
there is
no such duplication. The offence of robbery with aggravating
circumstances is committed when the threat of violence or
violence is
used in order to bring about the robbery. If one enters and uses a
gun in order to rob, that constitutes aggravating
circumstances. The
appellants we also charged with the statutory offence of being in
possession of an unlicensed firearm and the
unlawful possession of
ammunition. Those are offences which are totally different from the
main charge of robbery, and even though
they may occur at the same
time, the offences remain separate offences and in my view there is
no question of any duplication of
charges.
So
in respect of the convictions of both appellants on counts 3 and 4
the appeal against the convictions
MUST
FAIL
.
We
heard argument from appellant No 2's counsel, which we applied also
to appellant No 1, since he was unrepresented. It was submitted
that,
in the final analysis, the term of imprisonment of 15 years was
shockingly inappropriate and this Court should reduce the
sentence.
Counsel
for appellant No 2 pointed to an unusual feature of the judgment, and
that is that the regional magistrate recorded, as
he is required to
do in terms of Act 105 of 1977, that in his view there were
substantial and compelling reasons as to why the
minimum sentence
might not be imposed, and he recorded this as being the fact that the
appellants, the accused at that stage, had
been in custody for a
period of some five years. Notwithstanding this, he made it clear
that in the exercise of his discretion
he did not consider that the
substantial and compelling circumstances justified him in imposing a
lesser sentence than the 15 years.
His reason for this was the
coldblooded and callous manner in which the robbery had been
planned and executed, the fact
that the compEainants had been
attacked in the sanctity of their home in a most blatant manner and
at a time when it would have
been known to the appellants that the
inhabitants were at home, they burst into them and attacked them in
their home, well knowing
that they would be there.
The
test on appeal has been stated over and over, but perhaps it is as
well to remind oneself of the test which an Appeal Court
must apply.
In this regard I refer to
S
v Kgosimore
,
1999(2) SACR at page 238 (SCA), and I quote from 241 at the letter
E:-
"It
is trite law that sentence is a matter for the discretion of the
Court burdened with the task of imposing the sentence.
Various tests
have been formulated as to when a Court of appeal may interfere.
These include whether the reasoning of the trial
court is vitiated by
misdirection or whether the sentence imposed can be said to be
startlingly inappropriate or to induce a sense
of shock or whether
there is a striking disparity between the sentence imposed and the
sentence that the Court of appeal would
have imposed.
All these formufations
r
however, are aimed at determining the same thing;
viz
whether
there was a proper and reasonable exercise of the discretion bestowed
upon the court imposing sentence. In the ultimate
analysis this is
the true inquiry. (Compare
S
v Peters
,
1987(3) SA 717 (A) at 727G - ).). Either the discretion was properly
and reasonably exercised or it was not. If it was, a Court
of appeal
has no power to interfere; if it was not, it is free to do so."
And
that is the test which we must apply. Counsel for the State has
correctly also referred to the judgment of
Peters
which
is quoted above, in which the point is made that minimal differences
of the period of the sentence ought not to be taken in
account when
considering whether a sentence is startlingly inappropriate.
I
have a measure of sympathy for the appellants, but in my view a case
has not been made out that the regional magistrate did not
exercise
his discretion correctly and in the circumstances the appeal against
the sentences
CANNOT
SUCCEED.
In
the circumstances, the sentences are
CONFIRMED
.
CLEAVER,
J
I
agree.
ALLIE,
J