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[2013] ZAWCHC 201
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Abrahams v S (A520/2012) [2013] ZAWCHC 201 (19 March 2013)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
Republic
of South Africa In the High Court of South Africa
(Western
Cape High Court, Cape Town)
Case
Number: A 520/2012
Reportable
In
the matter
between:
TOUFEEQ
ABRAHAMS
Appellant
THE
STATE
Respondent
JUDGMENT:
19 March 2013
BOQWANA
AJ
1.
On 17 March 2010 the appellant and Wade
Woodman (‘Woodman’) and Yusuf Paulse (‘Paulse’),
all pleaded not
guilty to a charge of robbery with aggravated
circumstances in the Cape Town Regional Court.
2.
During the course of the trial, Woodman
changed his plea to guilty and his trial was separated from that of
the appellant and Paulse.
On 27 September 2011, at the conclusion of
their trial, both the appellant and Paulse were convicted as charged
and on 10 April
2012, they were both sentenced to 8 years
imprisonment of which 2 years were suspended on certain conditions.
3.
On 12 April 2012 the appellant applied
for leave to appeal against his sentence and for leave to adduce
further evidence relating
to the sentence given to Woodman who on 31
May 2010 was sentenced by another court to four years imprisonment,
suspended for five
years on certain conditions including submitting
himself to rehabilitation for the treatment of his drug dependency.
Evidence relating
to Woodman’s sentence was not before the
magistrate at the time of the sentencing of the appellant.
4.
In granting the appellant leave to
appeal against his sentence, the magistrate remarked that even if she
had known of Woodman’s
sentence at the time, it would not have
made a difference to the sentence imposed by her, as she did not
agree with the sentence
that Woodman received.
5.
The facts of this case are largely
common cause and they are that on 09 August 2009 at approximately
13h00, the appellant, Woodman
and Paulse were travelling in a motor
vehicle driven by the appellant, in the V [….] area. The
appellant stopped the vehicle,
in St James Street alongside a
pedestrian, one J.W., ('the complainant’), who was talking on
his cell phone. Paulse and Woodman
got out of the vehicle and Paulse
demanded the cell phone from the complainant. J.W. stood to one side
holding a knife which was
visible to the complainant. The complainant
immediately surrendered his cell phone.
6.
For reasons known to Woodman alone, he
proceeded to stab the complainant with the knife on his upper right
leg after he had handed
over his cell phone.
7.
Woodman and Paulse ran back to the
vehicle, where the appellant had been waiting and he then drove off
with Woodman and Paulse on
board. This incident was witnessed by
members of the local neighbourhood watch who alerted the police, who
came and intercepted
the vehicle before it could leave the area. The
appellant's vehicle collided with the police vehicle whereupon the
appellant, Woodman
and Paulse were arrested.
8.
The appellant gave evidence and stated
that he was not aware that his colleagues intended to rob the
complainant and that he only
found out about the stabbing when they
were caught by the police. The magistrate rejected the appellant’s
evidence and found
him guilty on the basis that he was the driver of
the getaway car in a robbery and sentenced the appellant effectively
to six years
imprisonment.
9.
Central to the appellant’s grounds
of appeal is the startling disparity between the sentence imposed on
the appellant and
that which was given to Woodman. In argument, the
appellant’s counsel submitted that it is anomalous that Woodman
who approached
the complainant and who participated in the robbery by
first exhibiting the knife and then stabbing him after the cell phone
had
been handed over, was given a non-custodial sentence, whilst the
appellant, his accomplice who had no interaction whatsoever with
the
complainant but drove the getaway vehicle, received an effective
custodial sentence of six years. Counsel further submitted
that the
sentences were not only strikingly different but they were inversely
proportional to the gravity of the actions sought
to be penalised in
that he who played the palpably more active and blameworthy role in
the robbery received a substantially lesser
sentence.
10.
Counsel further submitted that the
non-custodial sentence given to Woodman was not inappropriate having
regard to the mitigating
circumstances in his case, and in particular
Woodman’s addiction to ‘tik’ which impelled him to
commit the crime
in that he needed to obtain money to acquire the
drug his clean record and his comparatively youthfulness at 18 years
of age. He
submitted that the appellant's personal circumstances are
materially the same as Woodman’s. At the time he was 21 years
and
four months old and like Woodman he was a first offender with an
addiction to ‘tik.
11.
I
t is trite that the discretion in
sentencing lies with the trial court. The appeal court will generally
only interfere with the
sentence if the magistrate committed an
irregularity or misdirected him or herself in imposing the sentence
or the sentence is
disturbingly inappropriate. It is accepted by the
appellant that the magistrate did not misdirect herself regarding the
disparity
of sentences as Woodman’s sentence was not before her
when sentencing the appellant. However, a court of appeal may find a
sentence to be disturbingly inappropriate where it is markedly more
severe than a sentence imposed on another person convicted
of the
same offence.
12.
In
S v Glanrtoulis
[1]
the court held as follows:
“
1. In
general, sentence is a matter for the discretion of the trial court
Disparity
in the sentences imposed on participants in an offence
(whether tried together or in separate court) will not necessarily
warrant
interference on appeal. Uniformity should not be elevated to
a principle, at variance both with a flexible discretion in the trial
court and with the accepted limitation of appellate interference
therewith.
2.
Where, however, there is a disturbing
disparity in such sentences, and the degrees of participation are
more or less equal, and
there are not personal factors warranting
such disparity, appellant interference with the sentence may,
depending on the circumstances,
be warranted The ground of
interference would be that the sentence is disturbingly
inappropriate.
3.
In ameliorating the offending sentence
on appeal, the Court does not necessarily equate the sentences: it
does what it considers
appropriate in the circumstances.”
13.
There
is a clear disparity between Woodman and appellant’s sentences.
The appellant played a lesser role in the crime than
Woodman did.
This is not to say that his role was not serious. It was serious
because with the appellant’s participation
Woodman and Paulse
could flee from the scene of the crime. This issue is important and
correctly featured in the magistrates reasoning
on sentence.
14.
In
her reasoning the magistrate correctly found injury to the
complainant to be an aggravating factor. However, the enquiry is more
nuanced. The question is whether the State proved that the appellant
was aware of the knife before it was so gratuitously used
after the
event by Woodman. The appellant stated that he only became aware of
the stabbing after the fact. The evidence for the
State does not show
that the appellant was so aware and his knowledge of the knife and of
its possible use during the robbery was
not raised in
cross-examination. Furthermore the stabbing took place after the
complainant had already handed over the cell
phone. Whilst the wound
administered on the complainant was serious and could have been
fatal, that should not be taken against
the appellant without the
State establishing that the appellant knew of the knife and that the
knife could be involved and used
in carrying out the offence. The
magistrate therefore misdirected herself by not properly assessing
this issue in her reasoning.
15.
Turning to the addiction to tik as
a factor. The magistrate agreed that addiction to tik was an illness
but found that it
was not a mitigating factor in the sense that it
could excuse the appellant from blameworthiness.
16.
The appellant testified that he had been
drinking and using tik and dagga before he drove to town with his
friends and was not in
his proper state of mind.
17.
Furthermore, the probation officer’s
pre-sentence report confirmed that the appellant had been using tik
for a period of two
years. It also states that when he is intoxicated
with the drug, the appellant’s self-esteem is low and he can
easily be
influenced by friends; that after he was arrested the
appellant quit the use of drugs and that he was attending counselling
sessions
at N.A. Kingston Rehabilitation Centre. The appellant
testified that he had not used tik since the incident.
18.
While
it is correct that drug addiction cannot be an excuse for the
offence,
[2]
the magistrate, however, simply dismissed drug addiction as a factor
without considering whether it should play any role in the
sentence
to be imposed on the appellant. In my view that constituted a
misdirection on her part. In the case of Net v The State
[3]
Mlambo JA (as he then was) held as follows:
"Whilst
a gambling addiction may be found to cause the commission of an
offence, even if it is pathological (as in this case),
it cannot on
its own immunise an offender from direct imprisonment Nor indeed can
it on its own 'be a mitigating factor, let alone
a substantial and
compelling circumstance justifying a departure from the prescribed
sentence’, in the words of Stephan Terblanche
in South African
Journal of Criminal Justice (2004) 17 at 443 who, correctly in my
view, criticises the approach in Wasserman."
19.
The Court in Nel had to consider the
issue of finding compelling and substantial circumstances which would
justify a deviation from
a prescribed sentence and held that to find
compelling and substantial circumstances the Court ought to look more
broadly than
the issue of addiction. The addiction factor must be
viewed with other factors. In that case the facts had shown that the
appellant's
financial pressures and his gambling addiction were
inextricably linked to other relevant factors which were that he was
a first
offender and showed remorse by his guilty plea. The Court
found that those factors viewed together should not have been found
to
be irrelevant but deserved appropriate consideration and effect in
sentencing. The Court held further that the financial pressures
caused by the gambling addiction were clearly pivotal in the
appellant’s decision to commit the robbery and that his
objective,
in that skewed state of mind, was to rob to have access to
money to ease his financial burdens, which in turn would enable him
to continue gambling. These considerations taken together, were found
to be substantial and compelling and justified the imposition
of a
lesser sentence.
20.
In this case the magistrate did find
substantial and compelling circumstances and she consequently imposed
a lesser sentence than
the prescribed sentence. However, in
considering what sentence to impose, the appellant’s addiction
to tik remains relevant,
but should also not be viewed in isolation.
The degree of the appellant’s participation in the offence must
also be taken
into account. His conduct was manifestly less
blameworthy than Woodman and there are no significant differences
between his and
Woodman’s circumstances warranting any
significant differentiation in sentence. The appellant at 21 years
and four months
old was relatively young, unemployed, a first
offender and a father of a young child. After he was arrested he
stopped using drugs.
He attended counselling sessions at NA Kingston
Rehabilitation Centre. All these factors are relevant and should be
looked at cumulatively
and be weighed against the undoubtedly serious
nature of the crime.
21.
The appellant is a clear candidate for
rehabilitation outside of the prison. It is therefore my view that
there are indeed circumstances
which justify the substitution of the
effective custodial sentence of 6 years imprisonment with a totally
suspended custodial sentence
coupled with correctional supervision.
22.
Correctional
supervision as a sentencing option has been dealt with by our courts
and in S v M (Centre for Child Law as Amicus Curiae)
[4]
the Constitutional Court held as follows:
"[61]
It is an innovative form of sentence which if used in appropriate
cases and if applied to those who are likely to respond
positively to
its regimen, can serve to protect society without the destructive
impact incarceration can have on a convicted criminal's
innocent
family members.
[5]
Thus, it creates a greater chance for rehabilitation than does prison
given the conditions in our overcrowded prisons. The SALC
cautioned
in 2000 that 'South African prisons are suffering from overcrowding
that has reached levels where the conditions of detention
may not
meet the minimum standards set in the Constitution'.
23.
In light of my findings above, I propose an order in the following
terms:
1.
The appeal is upheld and the sentence imposed upon the appellant on
10 April 2012 is set aside and replaced with the following:
1.1
Four years imprisonment which is
suspended for five years on the following conditions:
1.1.1
The accused is not convicted of robbery
or of crime which is a competent verdict on a charge of robbery, or
any offence under the
Drugs and Drug Trafficking Act, 140 of 1992
,
committed during the period of suspension and in
respect
of which he is sentenced to a term of imprisonment without the option
of a fine.
1.1.2
The accused refrains from drinking
alcoholic liquor and from the use of any drug defined in the
Drug and
Drugs Trafficking Act, 140 of 1992
, save where taken upon
prescription of a medical practitioner.
1.1.3
The accused submit to correctional
supervision and the control of the probation officer for Mitchells
Plain or such other
correctional supervision official who has
jurisdiction over the appellant (‘the correctional supervision
official’),
which supervision and control is to commence within
30 calendar days from the date of this order and shall include that:
1.1.3.1
The accused perform a total of 80 hours
community service at the rate of 16 hours per month, as is directed
by the correctional
supervision official;
1.1.3.2
The accused attend weekly meetings of
the AA or NA for a period of two years from the commencement of the
period of correctional
supervision referred to in paragraph 1.3
above.
1.1.3.3
The accused attend such rehabilitation
treatment programmes as is determined by the correctional supervision
official, to deal with
his tik and/or dagga dependency.
1.1.3.4
The accused submit himself to drug
testing whenever required to do so by the correctional supervision
official.
1.1.4
The accused may not leave the
magisterial district in which he resides without the permission of
the correctional supervision official.
1.1.5
The accused comply with any reasonable
instruction or instructions given by the correctional supervision
official regarding the
administration of his sentence.
1.1.6
The accused notify the correctional
supervision official forthwith in writing of any change of his
residential address.
BOQWANA,
AJ
Acting
Judge of the High Court of South Africa
LOUW,
J
Judge
of the High Court of South Africa
Republic
of South Africa In the High Court of South Africa
(Western
Cape High Court, Cape Town)
Case
Number: A 520/2012
In
the matter between:
TOUFEEQ
ABRAHAMS
Appellant
And
THE
STATE
Respondent
Order
dated 9 April 2013 Addendum to the judgment which was delivered on 19
March 2013
LOUW
J
[1]
In this appeal Boqwana AJ delivered a judgment on 19 March 2013. I
agreed with this judgment and the orders made. It has now
been
brought to our attention that the formulation of the sentence
substituted and imposed by us contains a lacuna in that no period
of
correctional supervision is specified in paragraph 1,1.3 of the
substituted sentence.
[2]
This was a clear omission since we intended the period of
correctional supervision to be for a period of two years In the
result
the order made on 19 March 2013 is corrected to read as
follows:
[3]
The
appeal is upheld and the sentence imposed upon the appellant on 10
April 2012 is set aside and is from that date replaced with
the
following:
1.1
Four years imprisonment which is suspended for five years on the
following conditions:
1.1.1
The accused is not convicted of robbery
or of a crime which is a competent verdict on a charge of robbery, or
any offence under
the
Drugs and Drug Trafficking Act, 140 of 1992
,
committed during the period of suspension and in respect of which he
is sentenced to a term of imprisonment without the option
of a fine.
1.1.2
During the period of suspension, the
accused refrains from drinking alcoholic liquor and from the use of
any drug defined in the
Drug and Drugs Trafficking Act, 140 of 1992
,
save where taken upon prescription of a medical practitioner.
1.1.3
The accused submit to a two year period
of correctional supervision and the control of the probation officer
for Mitchells Plain
or such other correctional supervision official
who has jurisdiction over the appellant (‘the correctional
supervision official’),
which supervision and control is
to commence 30 calendar days from the date of
this
order (19 March 2013) and shall include that:
1.1.3.1
During
the period of correctional supervision, the accused perform a total
of 80 hours community service at the rate of 16 hours
per month, as
is directed by the correctional supervision official;
1.1.3.2
The
accused attend weekly meetings of the AA or NA for a period of two
years from the commencement of the period of correctional
supervision
referred to in paragraph 1.1.3 above.
1.1.3.3
During
the period of correctional supervision, the accused attend such
rehabilitation treatment programmes as is determined by the
correctional supervision official, to deal with his tik and/or dagga
dependency.
1.1.3.4
During the period of correctional
supervision the accused submit himself to drug testing whenever
required to do so by the correctional
supervision official.
1.1.4
During the period of correctional
supervision, the accused may not leave the magisterial district in
which he resides without the
permission of the correctional
supervision official.
1.1.5
During the period of correctional
supervision, the accused comply with any reasonable instruction or
instructions given by the correctional
supervision official regarding
the administration of his sentence.
1.1.6
During the period of correctional
supervision, the accused notify the correctional supervision official
forthwith in writing of
any change of his residential address.
LOUW,
J
Judge
of the Western Cape High Court
I
agree.
BOQWANA,
AJ
Acting Judge of the Western Cape High
Court
Judgment
:
Boqwana AJ
Counsel
for the State
:
Adv. T Ntela
Counsel
for Accused
:
Adv. T R Tyler
Dates
of hearing
:
1 March 2013
Date
of judgment
:
19 March 2013
[1]
(1975} 4 SA 867 (A)
[2]
Nel v The Stale [2007] SC A 51 (RSA) at para 16
[3]
Nel v the State supra at para 16
[4]
2007 (2) SACR 539 (CC)
[5]
Ibid at para 539 61. See also S v Schuytte 1995 {1) SACR 344 (C) AT
350 c-d. 63. See also SALC
Report above n3 at page 1.37 In S v
Lebuku
2007 JOL 17622
(T) at 13- 15 Webster J refers to the
2003/2004 Annual Report of the Judicial Inspectorate of Prisons in
which Justice Fagan
recommends at para 16.2 the use of non-custodial
sentences to help reduce the overcrowding in our prisons. He also
provides a
helpful discussion encouraging judges to actively explore
all available sentencing options and to choose the sentence best
suited
to the crime. See also S v Siebert
1998 (1) SACR 554
(A) at
539c-d.