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1995
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[1995] ZASCA 137
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S v Andhee (663/94) [1995] ZASCA 137 (23 November 1995)
CASE NO
: 663/94 NvH
IN THE
SUPREME
COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
PRAN ANDHEE
and
THE STATE
SMALBERGER, JA
Case No
: 663/94
N v
H
IN THE SUPREME
COURT OF S
OUTH
AFRICA (APPELLATE DIVISION)
In the matter between:
PRAN ANDHEE Appellant
and
THE STATE
Respondent
CORAM
: SMALBERGER, MARAIS,JJA
et SCOTT, AJA
HEARD
: 14 NOVEMBER 1995
DELIVERED
: 23
NOVEMBER 1995
JUDGMENT
SMALBERGER, JA:
On the evening of 6 December 1991 Mrs Faldielah Nair and
her thirteen year old daughter Tasneen ("the deceased") were crossing
Monntbatten Drive in Reservoir Hills, a suburb of Durban,
2
on their way home from a supermarket. They stood on the traffic island in
the centre of the road waiting for vehicles from their left
to pass before
completing their crossing. One of the vehicles, travelling at speed, mounted or
encroached upon the island. It collided
with the deceased, injuring her fatally.
The vehicle stopped, the driver alighted from it, went to the front of his
vehicle, returned
to the driver's door and glanced at the deceased who was lying
on the road behind the vehicle. He then re-entered his vehicle and
drove away,
ignoring the deceased's mother's pleas for help.
As a sequel to these events the appellant, a medical practitioner, was
charged in the Magistrate's Court, Pinetown with (1) culpable
homicide; (2) a
contravention of sec 118(l)(b) of the Road Traffic Act 29 of 1989 ("the Act")
(failing, as the driver of a vehicle
involved in an accident, to ascertain the
nature and extent of any injury sustained by any person injured in the
accident); (3)
3
a contravention of sec 118(l)(d) of the Act (failing to ascertain the
nature and extent of any damage sustained to any property);
and (4) a
contravention of sec 118(l)(c) of the Act (failing to render assistance to any
injured person). He was also charged (count
5) with defeating or obstructing the
course of justice, arising from allegedly false information which he later gave
to the police
that his vehicle had been stolen before the collision.
A protracted trial followed. The appellant persisted in his claim that
his vehicle had been stolen and that he had not been driving
it when the
collision occurred. He testified that he had been at a party at the time. He
called a number of witnesses to support
him. The trial magistrate disbelieved
the appellant and his witnesses, and convicted him on all five counts. The
appellant continued
to protest his innocence. He did not give evidence in
mitigation of sentence, and left it to his attorney to address the court on
his
behalf. In respect of count 1 the appellant was sentenced to
4
a fine of R6 000-00 or twelve months imprisonment. On counts 2, 3 and 4
(taken together for the purposes of sentence) he was sentenced
to nine months
imprisonment. A similar sentence was imposed on count 5. The magistrate ordered
the sentences in respect of counts
2 to 5 to run concurrently. The effective
period of imprisonment was accordingly nine months.
The appellant appealed to the Natal Provincial Division against his
convictions and sentences on all counts. Shortly before the hearing
of the
appeal, and after receiving advice from senior counsel, the appellant changed
his stance. He conceded that he had been responsible
for the collision. He
abandoned his appeal against his conviction and sentence on count 1, as well as
his conviction on count 2.
He proceeded with his appeal against his convictions
in respect of counts 3, 4 and 5 (the latter to the extent that he claimed that
he should only have been convicted of an attempt) as well as his sentences on
those counts. His appeal was partially successful.
5
His convictions on counts 2 and 3 were set aside; that on count 5 was
altered to an attempt to defeat or obstruct the course of justice.
The sentence
of nine months imprisonment on counts 2, 3 and 4 (previously taken together) was
ordered to stand as the sentence on
count 2; the sentence on count 5 was
confirmed. However, the court a quo, which before the hearing of the appeal had
given notice
of its intention possibly to increase sentence, ordered the
sentences to run consecutively instead of concurrently, thereby increasing
the
effective sentence from nine to eighteen months imprisonment. The present
appeal, with leave of the court a quo, lies against
the sentences on counts 2
and 5 only.
Before proceeding further something needs to be said about what the
proper approach to the matter of sentence should have been in
the court a quo.
Having set aside the convictions on counts 3 and 4, and altered that on count 5
to what was, technically at any
rate, a lesser offence, the court a quo was
obliged to
6
reconsider the sentence. However, it did not enjoy an unfettered
discretion, unrestricted in any way by what the trial magistrate
had done, to
impose a sentence, or an effective sentence, which had a more stringent effect
than that imposed by the magistrate.
Even if all the convictions had been
sustained on appeal the court a quo would not have been at liberty to increase
mero motu the
sentences imposed by the trial magistrate unless he had imposed a
sentence so glaringly inadequate or disturbingly inappropriate
that it justified
the inference that he acted unreasonably and therefore improperly
(S v
Anderson
1964(3) SA 494(A) at 495E-H). A fortiori it is not at liberty to do
so where some of the convictions have been set aside on appeal.
The need to
revisit the question of sentence in this case does not mean that the parameters
set by the trial magistrate become entirely
irrelevant and may be disregarded.
On the contrary, they must still be taken to represent the outer limits of what
may be done unless
exceeding those limits would have been justified even
if
7
there had been no success on appeal against the convictions. Any other
conclusion would be illogical, legally untenable and fundamentally
unfair to an
appellant who has been partially successful in his appeal against his conviction
or convictions.
In the present instance the court a quo in essence
doubled the appellant's sentence in respect of fewer and less serious crimes
than
he was convicted of originally. This it could not do merely in the exercise
of an untrammeled sentencing discretion. It was only
entitled in the present
case to increase the sentences if it was satisfied that the sentences determined
were, or the effective period
to be served was, glaringly inadequate, even for
the offences found by the magistrate to have been committed. (This would not, in
my view, have precluded the court a quo in the exercise of its discretion from
imposing, as it did, on count 2 the same sentence
as had been imposed on counts
2, 3 and 4 taken together. That they were taken together does not detract from
the fact that each individually
could
8
have qualified for a sentence of nine months. The
sentence imposed on count 2 can therefore not be viewed as an increase in
sentence
per se).
It is not apparent from the court a quo's judgment that it was aware of
this limitation on the exercise of its discretion. It merely
observed that "the
magistrate's sentence erred on the side of leniency, not on the side of
severity". That in itself provided no
acceptable basis for increasing it. At no
time did it express the view that the effective sentence imposed by the
magistrate was
glaringly inadequate. That was the test to be satisfied in the
present matter before the effective sentence could be increased.
Mr Wallis
, for the appellant, contended that having set aside two,
and lessened one, of the appellant's convictions, the court a quo should
have
remitted the matter to the trial magistrate to sentence the appellant afresh. He
submitted that there were two factors which
justified the adoption of such a
course. The first was
9
that the evidence of the deceased's mother raised the possibility that
the driver of the vehicle (the appellant) had been shocked
after the accident,
and had acted as he did through panic. The second was that the appellant had
previously adopted a defence that
precluded him from putting evidence before the
trial court explaining his conduct. As he had, prior to the appeal in the court
a
quo, had what
Mr Wallis
referred to as a "change of heart" and now
conceded that he was the driver of the vehicle involved in the collision, he
should be
afforded an opportunity of explaining why he had behaved as he did.
This would cure the lacuna in the record concerning his state
of mind at the
time. A further consideration alluded to during argument was that the appellant
was clearly an appropriate candidate
for correctional supervision, and that the
trial magistrate would be able to reconsider that sentencing option in the light
of the
altered circumstances.
Mrs Nair's evidence is a weak peg on which to hang an
10
argument that the appellant acted as he did on account of
shock.
We were referred to three passages in her evidence. Dealing
in
chief with the appellant's movements after alighting from his
vehicle
she said:
"And he had his hand like this. He had his hands like this, like he was
looking for something, or I don't know whether he was shocked
or what but
...."
Reverting to this stage of the events she stated
under cross-examination:
"To me, at first I thought he was shocked or he was looking for
something."
And finally:
"When that person got into his car and he drove off, I just knew that
must have been the driver that got frightened or shocked or
whatever and drove
off, Your Worship."
Mrs Nair's evidence goes no further than to postulate shock as a possible
cause for the appellant's behaviour. Such possibility
11
is purely speculative and not based on any objective facts. It is largely
negated by the appellant's subsequent conduct which points
to his having left
the scene for no other reason than a desire to escape
detection.
After his conviction it was open to the appellant to
explain why he had left the scene of the accident without attempting to
ascertain
the nature and extent of the deceased's injuries. He did not avail
himself of the opportunity to do so. Instead he persisted in his
false denial
that he was the driver. Having made his bed he must now lie on it. This does not
mean that he is to be punished for
his untruthfulness. But the mere fact that he
decided at a late stage and on the advice of counsel to "come clean" does not
entitle
him to any special indulgence from this Court. He has no right to
require of the Court that he be allowed to do now what he declined
to do
previously. He would have been entitled to apply for the matter to be remitted
for hearing further evidence if he was able
to
12
satisfy the requirements for doing so. There is no such application
before us. We simply have no inkling of what explanation the appellant
might
proffer for his conduct. We have no means of ascertaining whether an acceptable
explanation exists for his not giving such
evidence at his trial; whether the
evidence he might wish to give is likely to be believed; or, if it was, whether
it would be likely
to mitigate his conduct and favourably influence his sentence
- all necessary prerequisites that need to be established where an
appellant
seeks to lead further evidence. The arguments advanced provide no proper basis
for remitting the matter to the trial magistrate.
The position would be
different if the sentences were vitiated by misdirection or other accepted
grounds for interference and this
Court considered correctional supervision to
be the proper sentencing option which, for reasons that follow, I do not believe
to
be the case.
I propose to deal first with the sentence on count 5.
The
13
offence of attempting to defeat or obstruct the ends of justice is
rightly regarded as a serious one which may, and frequently does,
warrant severe
punishment
(S v Mene and Another
1988(3) SA 641(A) at 665J-666A;
S v
W
1995(1) SACR 606(A) at 608I). In the present matter, when confronted with
the fact that the front number-plate of his vehicle had
been found at the scene
of the collision, the appellant falsely claimed that his car had been stolen. He
then preceded to spin an
intricate web of deception in order to escape detection
and avoid the consequences of his unlawful conduct. He went further. In an
attempt to prevent his conviction he suborned others to commit perjury. His
conduct was calculated and contrived. It even extended
to attacking the bona
fides of Mrs Naif in identifying him as the driver. He failed to show any
remorse for what he had done. In
the words of the trial magistrate when
sentencing the appellant "the nature and circumstances of this particular count
.... are so
aggravating that the deterrent aspects in
14
the interests of society must be paramount. In the circumstances
correctional supervision was not in any view an appropriate sentencing
option."
I agree. Even making full allowance for the appellant's personal circumstances,
and the likely effects of incarceration
upon him, there is no basis for
interfering with the sentence of nine months imprisonment imposed on this
count.
Once it has been determined that imprisonment is appropriate on count 5,
correctional supervision is no longer a viable option on
count 2. It is true
that the evidence does not establish that the deceased's life might have been
saved had the appellant endeavoured
to establish the nature of her injuries. But
that does not detract from his moral blameworthiness. He merely glanced in her
direction.
He never went up to her. He made no attempt to establish her
condition. For whatever reason, he appears to have displayed complete
indifference. The fact that he was a medical doctor who could not have been sure
that by dint of his training and
15
experience he would not have been able to assist her in one way or
another, compounds his blameworthiness. In my view no justification
exists for
interfering with the sentence imposed.
There remains the question whether the court a quo was entitled to order
that the sentences on counts 2 and 5 should run consecutively.
In ordering them
to run concurrently, the trial magistrate took into account the cumulative
effect of the sentences. For a highly
educated professional person such as the
appellant incarceration for even a short period, with all its negative
implications, is
in itself a severe form of punishment. In addition, one must
not lose sight of the fact that the appellant was sentenced separately
on the
culpable homicide count. Even if the court a quo was correct in labelling the
sentences under consideration as lenient, the
effective sentence was in my view
not so glaringly inadequate or shockingly inappropriate that it entitled the
court a quo to increase
it. It should not therefore have interfered with the
order
16
that the sentences run concurrently.
The appeal is allowed to
the extent that the court a quo's order that the sentences on counts 2 and 5
should run consecutively is
set aside, and the order of the trial magistrate
that they are to run concurrently, is restored.
J W SMALBERGER
JUDGE OF APPEAL
MARAIS, JA) Concur SCOTT, AJA)