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[2019] ZASCA 85
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Ndou v S (247/18) [2019] ZASCA 85; 2019 (2) SACR 243 (SCA) (31 May 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 247/18
In
the matter between:
PONTSO DENNIS
NDOU
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Ndou
v The State
(247/18)
[2019] ZASCA 85
(31 May 2019)
Coram:
Leach,
Saldulker, Zondi and Mocumie JJA and Eksteen AJA
Heard:
20
May 2019
Delivered:
31
May 2019
Summary:
Criminal
Procedure – the Appeal Court lacks jurisdiction, in the absence
of a cross-appeal by the State, to reverse the acquittal
of the
accused – evidence in relation to common purpose to commit
robbery not sufficient to make perpetrators joint possessors
of a
firearm under the Firearms Control Act 60 of 2000 – sentence in
respect of offences related in terms of time and place
ordered to run
concurrently.
ORDER
On
appeal from:
Gauteng
Division
of the High Court, Johannesburg (Kgomo J and Mbongwa AJ)
sitting
as court of appeal.
1 The appeal against the
appellant’s conviction and sentence on count 3 is upheld and
the conviction and sentence imposed
pursuant thereto is set aside.
2 The order of the Full
Court is set aside and replaced with the following:
(a)
The conviction and sentence on count 1 (robbery) are confirmed.
(b)
The appeal against the appellant’s sentence on count 2 is
upheld and the sentence imposed is set aside and is replaced
with one
of 5 years’ imprisonment, three years of which is ordered to
run concurrently with a sentence of 15 years’
imprisonment on
count 1.
(c)
The appellant is thus sentenced to an effective term of 17 years’
imprisonment.
(d) The sentence is
ante-dated to 17 January 2007 being the date that the sentence was
imposed in the trial court.
JUDGMENT
Zondi
JA (Leach, Saldulker and Mocumie JJA and Eksteen AJA concurring)
[1]
The appellant together with his two co-accused appeared in the
Wynberg Regional Court, Alexandra, each facing three charges;
namely
robbery with aggravating circumstances (count 1), attempted murder
(count 2) and unlawful possession of a firearm in contravention
of s
3 of the Firearms Control Act 60 of 2000 (Firearms Control Act)
(count 3). The charges relate to the events which occurred
in
Rivonia, Sandton, on 13 December 2004 when Mrs Claire Dawn McGraf was
robbed of two bags, a handbag containing R3000 in cash,
a cellphone,
bank cards and a money bag containing R10 840 in cash and two
cheques. Mr Barnes saw the suspects get into a
BMW vehicle, a
get-away vehicle driven by the appellant. When he tried to apprehend
the suspects a shot was fired from inside the
vehicle and injured him
on his left arm. The appellant drove off, but he and the two suspects
were shortly thereafter cornered
by the police and arrested. The
police conducted a search on their persons and on the vehicle they
were traveling in. A firearm
and the complainant’s belongings
were found in the vehicle. The appellant was legally represented and
pleaded not guilty
to all of the charges.
[2]
The appellant was convicted on counts 1 and 2. He was sentenced to 15
years’ imprisonment on count 1 and 10 years’
imprisonment
on count 2. He was acquitted on count 3 (a charge of unlawful
possession of a firearm). The appellant with leave granted
on
petition by the Judge President of the Gauteng Division of the High
Court appealed to the Full Court against his conviction
and sentence
on count 2 only. The State did not cross-appeal against the acquittal
of the appellant in respect of count 3. Instead
the State forewarned
the appellant in its heads of argument that at the hearing of the
appeal it would argue for the reversal of
the acquittal on count 3.
The Full Court also notified the appellant of the State’s
intention and its intention to revisit
the acquittal on the day of
the hearing of the appeal.
[3]
The Full Court (Kgomo J and Mbongwa AJ) dismissed the appeal against
the sentence on count 1 (no leave was granted on count
1), but upheld
the appeal against conviction on count 2. It set aside the conviction
imposed by the regional court and replaced
it with one of assault
with intent to do grievous bodily harm. Despite its setting aside the
conviction on count 2, the Full Court
did not interfere with the
sentence of 10 years’ imprisonment imposed by the regional
court. The Full Court set aside the
acquittal order granted by the
regional court in respect of count 3. It replaced the acquittal order
with the following:
‘
The appellant is convicted
thereon and he is sentenced to two years’ imprisonment.’
In
consequence the appellant was effectively sentenced to 27 years’
imprisonment.
[4]
The appeal, with the special leave of this Court, is against the
conviction and sentence of 10 years’ imprisonment on
count 2
and the order setting aside the appellant’s acquittal on count
3 and substitution therefor a conviction and a sentence
of two years’
imprisonment.
[5]
Three main issues arise for determination in this appeal. The first
relates to propriety of the procedure followed by the Full
Court in
reversing the acquittal order made by the trial court on count 3. The
second one relates to the merits and the question
as to whether the
evidence adduced by the State was sufficient to sustain a conviction
on count 3. The last question is whether
the sentence imposed by the
trial court was appropriate.
[6]
The appellant’s convictions and the resultant sentences arise
from the following incident. On 13 December 2004 at about
11h40, Mrs
McGraf left her place of work, Sandton Caltex Garage, in her motor
vehicle to do banking at Standard Bank located at
Rivonia Mall,
Sandton. The mall is about a kilometre away from her workplace. Mrs
McGraf carried a money bag containing an amount
of R10 840 in
cash, two cheques, bank cards and a handbag containing her personal
belongings and R3000 in cash. In total she
had R13 840 in her
possession.
[7]
She parked her vehicle in the basement parking area of Standard Bank,
from where she intended to walk to the bank. She took
out her handbag
and a money bag from the vehicle. When she was about to leave the
vehicle two unknown suspects confronted her –
one from each
side. In an apparent attempt to instil fear in her, one of the
suspects displayed a firearm which was tucked inside
the waist of his
jeans. He thereupon demanded money. A second suspect hit her on the
face with an open hand. While Mrs McGraf was
in a state of confusion
one of the suspects grabbed hold of the handbag and the money bag
from her hands and disappeared from sight.
She screamed for help. In
the meantime, the appellant waited for the two suspects in a get-away
car outside the building on Rivonia
Road.
[8]
Mr Henry John Barnes was in the vicinity of the crime scene when he
observed two suspects running out of the building and getting
into
the get-away car shortly after hearing a loud scream. Mr Barnes, in
an attempt to apprehend the suspects, pulled out his firearm
and
approached the vehicle from the driver’s side with a firearm in
his right hand. The car window on the driver’s
side was down.
Mr Barnes, through the open window, placed a firearm against the side
of the driver’s head. He then grabbed
hold of the car keys
intending to remove them from the ignition. With that a shot was
fired from inside the vehicle and hit Mr
Barnes on his upper left
arm. He retreated and shouted for help. The suspects fled the scene
and drove in the direction of the
N1 high way. Mr Gert Van Rooyen
followed the get-away vehicle in his Nissan vehicle and kept it under
observation from the time
it left the crime scene until the police
stopped it on the Edenvale off-ramp and arrested the suspects.
[9]
The police searched the vehicle and recovered a firearm with rounds
of ammunition under the front passenger’s seat and
two black
handbags. The occupants of the vehicle were also searched and R10 840
cash was found on the front seat passenger.
A Nokia cellphone was
found on the driver and an Ericsson cellphone on the back seat
passenger. These and other exhibits were booked
into the SAP13
register at Sandton Police Station. Some of these exhibits were later
identified by Mrs McGraf at the police station
as her belongings
which were taken from her during the robbery and they were released
to her.
[10]
It is common cause that one of the suspects pleaded guilty, and in
consequence his trial was separated from that of the appellant’s.
The appellant’s erstwhile co-accused 2 was arrested some few
days later at his place of work, Sandton Caltex Garage, where
Mrs
McGraf was also employed. It transpired that he is the one who
facilitated the robbery of Mrs McGraf by providing information
to the
other suspects about her movements on the day in question. The
appellant did not testify in his defence.
[11]
As already pointed out, the regional court convicted the appellant on
a count of armed robbery and that of attempted murder
but acquitted
him on the charge of unlawful possession of a firearm. The trial
court convicted the appellant on the charge of attempted
murder on
the basis that he had an intention in the form of
dolus
eventualis
. It expressed itself in these terms:
‘
So accused 1 and accused 3 knew
when they went to go and pull this robbery that a person or persons
can be shot and be killed. But
despite that knowledge they went
through with this operation.’
[12]
The trial court discharged the appellant on count 3 due to the lack
of evidence. It held:
‘
And regarding count 3 . . .
There is no evidence that the three accused had a common purpose to
possess this firearm or had control
over this firearm.’
[13]
On appeal, the Full Court set aside the conviction on a charge of
attempted murder. It found that ‘had there been an
intention to
kill Mr Barnes it is clear that his body being inside the vehicle, he
could have been shot anywhere in the body but
the firearm was
directed at this arm and he was shot in the arm.’
[14]
As regards count 3, the Full Court found that the trial court had
misdirected itself in acquitting the appellant. According
to the Full
Court, the appellant should have been convicted on this charge on the
ground that the firearm that was used to execute
the robbery was also
used to stop Mr Barnes from preventing the appellant and his
co-accused from fleeing the scene.
[15]
As regards the severity of the sentences that were imposed, the Full
Court found no merit in the appellant’s contention
that the
trial court should have ordered a portion of a sentence on the
relevant counts to run concurrently. It held that there
was no reason
for it to interfere with the sentences as the trial court was in a
better position to assess the case. In the result,
the Full Court
made the following order:
‘
1.
Conviction
and sentence on Court 1 (robbery) are confirmed (15 years
imprisonment).
2. Count 2 (attempted murder)
conviction is set aside and replaced with, assault to do grievous
bodily harm. The sentence of the
Court a quo is to remain unchanged.
3. The finding of not guilty on
Count 3, illegal possession of a firearm is set aside and replaced
with a conviction. The sentence
imposed in two years imprisonment.
This sentence is to run concurrently with sentences in Counts 1 and
2.
4. Sentences in respect of Counts 1
and 2 are to run consecutively.
5. Effective sentence [27] years
imprisonment.
6. Sentence is backdated to 17
January 2007.’
[16]
At the hearing of the appeal counsel for the State was constrained to
concede that the evidence in relation to count 3 was
insufficient to
sustain a conviction on that count and that she could not, in the
circumstances, argue in support of the Full Court’s
reversal of
the appellant’s acquittal. She however, persisted with her
submission that the Full Court had jurisdiction to
consider the
acquittal order despite the absence of cross-appeal by the State.
This cannot be accepted. It is now trite that the
State has no right
to appeal against the acquittal based solely on questions of fact.
[17]
This Court in
Director of Public Prosecutions, Gauteng v Pistorius
2016 (2) SA 317
(SCA), para 22 held that ‘”the
traditional policy and practice of our law’ is that an
acquittal by a competent
court in a criminal case is final and
conclusive and may not be questioned in any subsequent proceeding.’
The court went
on to hold at para 23:
‘
Consequently, as opposed to an
accused who has the benefit of appealing against a conviction based
on alleged incorrect factual
findings, the State may not appeal
against an acquittal based solely on findings of fact. And as
Chaskalson CJ pointed out in
Basson
:
“
Prior
to 1948 [the State] could also not appeal against a finding of law
made in a trial before a Judge which resulted in the acquittal
of an
accused person. In 1948 the Criminal Procedure Act then in force was
amended to make provision for the reservation of questions
of law at
the instance of the State in terms substantially similar to s 319 of
the present Act.”’
See
also
Magmoed
v Janse van Rensburg
[1992] ZASCA 208
;
1993
(1) SA 777
(A) at 816H-817B.
[18]
The State thus had no right of appeal and the high court was not
entitled either at its own instance or that of the State to set
aside
the acquittal and substitute a conviction in its stead.
[19]
In any event, the conviction on count 3 cannot stand as the evidence
on which it was based, was insufficient. This much was
conceded by
the State. The conviction was based on the reasoning that as all the
robbers acted with common purpose they were guilty
of joint
possession of the one firearm. It is trite too, that this does not
follow. (
S
v Mbuli
2003
(1) SACR 97
(SCA) para 71). The conviction on count 3 cannot stand
and must be set aside.
[20]
The sentences imposed were attacked on two grounds. First, it was
submitted that 10 years’ imprisonment on count 2 was
so
excessive as to induce a sense of shock. Counsel for the appellant
argued that following the setting aside of the conviction
of
attempted murder and its substitution by one of assault with intent
to do grievous bodily harm which is a lesser offence, a
sentence of
10 years’ imprisonment should have been consequentially
reduced. Secondly, it was submitted that both the trial
court and the
Full Court misdirected themselves by failing to reduce the cumulative
effect of the sentences imposed on counts 1
and 2 by ordering the
sentence or a portion of a sentence on count 2 to run concurrently
with a sentence of 15 years’ imprisonment
on count 1 or taking
the offences together for the purposes of sentence.
[21]
In general, sentencing is within the discretion of the sentencing
court. An Appellate Court’s power to interfere with
sentences
imposed by trial court are circumscribed. It can only do so where
there has been an irregularity that results in a failure
of justice,
or the trial court misdirected itself to such an extent that its
decision on sentence is vitiated; or the sentence
is so
disproportionate or shocking that no reasonable court could have
imposed (
Bogaards v S
2013 (1) SACR 1
(CC) para
41).
It is so that
where multiple offences have to be punished, the sentencing court has
to seek an appropriate sentence for all offences
taken together and
must not lose sight of the fact that the appropriate penalty must not
be unduly severe. Section 280(2) of the
CPA affords the sentencing
court with a discretion to make an order that sentence run
concurrently.
[22]
In my view, the trial court committed a material misdirection in
sentencing the appellant on count 2 on the assumption that
the
provisions of the
Criminal Law Amendment Act 105 of 1997
prescribed a
sentence of 10 years’ imprisonment. It erred in doing so. At
best for the State the offence was one envisaged
in Schedule IV to
the Act which carries a prescribed minimum sentence of 5 years’
imprisonment.
[23]
It is so that an assault using a firearm is a prevalent and a very
serious offence; more so in this matter as it was committed
during
the robbery. It is in the general public interest that sentences
imposed in matters such as this one, should act as a deterrent
to
others. The evidence regarding the nature and extent of the injury to
Mr Barnes was not presented in the trial court and this
court is left
in the dark as to whether he had fully recovered from the damage
caused to his left arm.
[24]
As regards the personal circumstances of the appellant, he was a
first offender and there is no evidence that he is the one
who shot
the complainant. He was convicted by association and on the basis
that he had an intention in the form of
dolus
eventualis
.
The Full Court on appeal changed the conviction from one of attempted
murder to assault with intent to do grievous bodily harm.
That
finding should have resulted in the reduction of a sentence. The Full
Court refused to interfere with the sentence contending
that the
trial court was in a better position to assess the sentence which,
unfortunately, was not the case as it is apparent that
the trial
court had sentenced the appellant on an incorrect assumption that the
prescribed minimum sentence was 10 years’
imprisonment.
[25]
In my view, the appeal against sentence on count 2 should succeed and
the sentence of 5 years’ imprisonment should replace
the
sentence of 10 years’ imprisonment imposed by the trial court
and confirmed by the Full Court. Both sides eventually
agreed that
this would be an appropriate sentence.
[26]
An effective sentence of 20 years’ imprisonment is a very
severe punishment that should be reserved for particularly
heinous
crimes (
Muller &
another v The State
[2011]
ZASCA 151
;
2012 (2) SACR 545
(SCA) paras 9-10).
The
offences of armed robbery and that of assault with intent to do
grievous bodily harm are related in terms of time and space
and in
order to reduce the cumulative effect of the penalty, three years of
the five years sentence on count 2 should be ordered
to run
concurrently with the sentence of 15 years imposed on count 1.
Effectively the appellant would be sentenced to 17 years’
imprisonment. I should mention that during the course of the appeal
both sides also agreed that this would be the appropriate outcome.
[27]
In the result the following order is made:
1 The appeal against the
appellant’s conviction and sentence on count 3 is upheld and
the conviction and sentence imposed
pursuant thereto is set aside.
2 The order of the Full
Court is set aside and replaced with the following:
(a)
The conviction and sentence on count 1 (robbery) are confirmed.
(b)
The appeal against the appellant’s sentence on count 2 is
upheld and the sentence imposed is set aside and is replaced
with one
of 5 years’ imprisonment, three years of which is ordered to
run concurrently with a sentence of 15 years’
imprisonment on
count 1.
(c)
The appellant is thus sentenced to an effective term of 17 years’
imprisonment.
(d) The sentence is
ante-dated to 17 January 2007 being the date that the sentence was
imposed in the trial court.
___________________
D
H Zondi
Judge
of Appeal
Counsel
for Appellant:
W A Karam
Instructed
by:
Johannesburg Justice Centre, Johannesburg
Bloemfontein
Justice Centre, Bloemfontein
Counsel
for Respondent:
M Papachristoforou
Instructed
by:
Director of Public Prosecutions, Johannesburg
Director
of Public Prosecutions, Bloemfontein