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[2011] ZAWCHC 476
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Carstens v S (A144/2011) [2011] ZAWCHC 476 (21 October 2011)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
CASE
NUMBER
:
A144/2011
DATE
:
21 OCTOBER 2011
In the matter between:
DAWID
CARSTENS
Appellant
and
THE
STATE
Respondent
JUDGMENT
BOZALEK.
J
:
The appellant was
convicted on 15 September 2009 in the Regional Court sitting in the
Strand, on one count of housebreaking with
the intent to rob and
robbery and one count of assault with the intent to inflict grievous
bodily harm. The magistrate took the
two convictions together and
imposed a sentence of 18 years imprisonment on the appellant. With
the leave of the magistrate, the
appellant now appeals against both
conviction and sentence.
The appellant was legally
represented throughout the trial. His first attorney withdrew when an
apparent conflict arose concerning
the appellant's evidence on a
certain point.
The evidence reveals that
in the early hours of 7 March 2009, a man broke into residential
premises at […] H[...] H[...]
Street, Strand, and robbed the
complainant, a Ms Strauss, of a cell phone and some R1 400,00 in
cash. The intruder threatened the
complainant with what appeared to
be a firearm and terrorised her with threats for more than an hour,
all the while helping himself
to valuables and incessantly demanding
that she produce the house's firearm. The complainant was trapped in
her bed throughout
this period until eventually her husband, who had
been unaware of what had been taking place, emerged from another room
and a protracted
struggle between him and the intruder followed.
In
the course thereof, the intruder produced a knife and inflicted
several superficial wounds to Mr Strauss and bit him on the neck.
The
complainant rushed to her husband's aid and succeeded in stabbing the
intruder with his own knife and later hit him over the
head with a
knopkierie. The intruder was forced by them out of the room, down a
passage to the front door and eventually bundled
over a fence. The
complainant and her husband retreated to their house and telephoned
the police. Coincidentally other police patrolling
the area at that
time, came upon the appellant lying on a pavement near the premises,
bleeding. He explained that he had been stabbed
and in due course he
was arrested and charged.
The appellant pleaded not
guilty to the charges and offered no plea-explanation. He testified
in his own defence, his version being
that he had been accosted and
robbed that night, in the process sustaining a stab wound. He had
then made his way to the vicinity
of the complainant's residence
seeking help, where he had been found by the police. He denied being
the intruder or robbing and
assaulting the complainant and her
husband. He testified, however, that he had been taken into the
premises by the police for identification
by the Strauss' after he
was arrested as a suspect.
The
state's case comprised the evidence of the complainant, Mr Strauss,
the police officers who had found the appellant and who
interacted
with the Strauss', as well as admitted DNA evidence that blood
spatters found on the walls of the passage in the house
matched a
sample of the appellant's blood. As the magistrate correctly noted,
the primary issue in the trial was identification.
He pronounced
himself satisfied with the identification of the appellant in the
light of the honesty and reliability of the identification
by the
Strauss', coupled with the
DNA evidence and
taking into account the unsatisfactory features of the appellant's
evidence and the improbabilities therein.
On appeal it was argued
on behalf of the appellant that for a number of reasons the evidence
of the identification was unreliable.
Before considering these
specific reasons, it is as well to set out the general principles
regarding identification evidence, as
well as the general approach to
be adopted in criminal matters to the evaluation of evidence. It is
trite that evidence of the
identify of an offender is treated with
caution, not least for the reason that even an honest witness quite
often makes a positive
identification of the wrong person. See
R v
Masimang
1950 (2) SA 488
(A). In
R v Shekelele
1953 (1) SA
636
(T) at 638G,
Dowling
, J stated:
"An acquaintance
with the history of criminal trials reveals that gross injustices are
not infrequently done through honest
but mistaken identification.
People often resemble each other. Strangers are sometimes mistaken
for old acquaintances. In all cases
that turn on identification, the
greatest care should be taken to test the evidence."
In
S v Mthetwa
1972 (2) SA 766
(A) at 768,
Holmes
, JA stated:
"Because of the
fallibility of human observation, evidence of identification is
approached by the courts with some caution.
It is not enough for the
identifying witness to be honest. The reliability of his observation
must also be tested. This depends
on various factors such as light
and visibility and eyesight, the proximity of the witness, his
opportunity for observation both
as to time and situation, the extent
of his prior knowledge of the accused, the mobility of the scene,
corroboration, suggestibility,
the accused's face, voice, build, gait
and dress, the result of identification parades, if any, and, of
course, the evidence by
or on behalf of the accused. The list is not
exhaustive. These factors, or such of them as are applicable in a
particular case,
are not individually decisive, but must be weighed
one against the other in the light of the totality of the evidence
and the probabilities."
As far as the evaluation
of evidence is concerned, it is necessary to guard against separating
the evidence into compartments. A
conclusion whether to convict or
not must be based on all the evidence.
S v Van der Mevden
1999
(1) SACR 447
(W) at 449f-450a. It is also necessary
to have regard to the inherent probabilities of the appellant's
version.
S v Stevens
2005 (1) ALL SA 1
(SCA) at paragraph 26.
I
turn to the criticisms of the identification evidence. Firstly it is
argued that the although the complainant said the intruder
wore an
earring, there was no evidence that appellant did so. In fact the
appellant testified that he used to wear an earring on
his other ear,
but did not that night. The police officers were not questioned
regarding this aspect. Then it is said that the
complainant stated
that she had ripped off the intruder's dark jacket during the
struggle, whereas the police officers had testified
they found him
wearing a dark jacket. In a similar vein, the complainant testified
that her blow with the knopkierie to the intruder's
head had produced
blood, but such wound was not noted by the two policemen.
In regard to all these
criticisms, generally, it must be noted that neither police officer
conducted a careful examination of the
appellant. Constable Mbenyane,
was not an investigating officer, but merely an officer on patrol
who, it would appear, dealt relatively
briefly with the appellant and
the Strauss'. The incident took place at night and according to
Mbenyane's evidence, he arrested
the appellant, searched him,
whereafter he was taken to a hospital for medical treatment.
Unfortunately, I should add, no medical
evidence was led. In
addition the evidence was that some confusion and high emotion
reigned at the Strauss' premises, even
after the break-in and the
arrival of the police.
Neither of the police
officers appear to have recalled or recorded the precise events
relating to the arrest, search or removal
of the appellant in great
deal and I do not consider that much weight can be attached to minor
discrepancies between their evidence.
If anything, these suggest a
lack of collusion between the state witnesses. It was argued that too
much weight was attached to
the identification by the complainant of
the appellant, when she saw a blow up of his identity document
photograph in the investigating
officer's office. However, it is
clear that this was but one of many strands in the identification
evidence.
The magistrate's finding
that Constable Thakoli found R1 400,00 in cash on the appellant and
returned it to the complainant, was
criticised on the basis that his
fellow policeman had stated that he had searched the appellant and
found nothing on him. Thakoli's
evidence in this regard was clear and
he added that Constable Mbenyane may not have seen him searching the
suspect or the appellant
later. As the magistrate pointed out, it was
highly unlikely that Constable Thakoli would
have
returned this sum
of cash to the complainant unless
he
had found it on the appellant. It was argued that it was
improbable that the appellant would have told Constable Mbenyane that
he was stabbed "at number […]", being a reference to
the address of the complainant's premises in H[...] H[...]
Street.
I disagree. It must be
noted that the appellant was quite seriously injured, unable to
escape and, when found by the police, was
pressed by them as to how
he had sustained his injuries. His explanations were vague and varied
and, according to the police, made
no reference to being accosted
several hundred metres away by a gang of men as he ultimately
testified. It was argued that a cell
phone, the only item missing,
was not found in his immediate vicinity. This is indeed so, but it
could have easily been disposed
of by him before the police arrived,
by simply throwing it away or hiding it.
Finally it was argued
that the magistrate erred in finding that the appellant was not taken
back to the complainant's house after
his arrest by the police
officers. In my view the magistrate's finding on this score cannot be
faulted. Both the Strauss' and the
police officers were adamant that
the appellant was not taken into the premises after his arrest. When
one has regard to the evidence
of the complainant and her husband
regarding the trauma which they and their young children underwent
during the break-in and the
struggle with the intruder, it is highly
unlikely that they would have allowed any suspect to be brought back
into their house
almost immediately after the ordeal.
Even more telling was the
fact that the appellant's initial instructions to his first legal
representative were clearly that he
was never in the house at all
during or after the break-in. It was only when the DNA evidence
emerged later in the state's case,
matching the appellant's blood
sample to the blood spatters found on the wall of the passage, that
the appellant appeared to change
his instructions and claim that the
police brought him into the house for identification purposes after
he was arrested. It was
evidently these clashing instructions which
led to the withdrawal of his first representative.
In my view, having regard
to the evidence on this issue as a whole, it is clear that the
appellant sought to tailor his version
to the evidence. The reason
for this is obvious. Without a version of being in the house at some
stage, the evidence of the matching
blood samples found in the house
is damning. However, as I have indicated the evidence must not be
compartmentalised. When one
has regard to the evidence as a whole it
is clear that a formidable case was made out against the appellant.
Although there was
no identification parade or post-incident
identification, both the complainant and her husband identified the
appellant by his
face. Furthermore, the complainant unerringly
identified the appellant by a copy of his identity book picture to
the investigating
officer shortly after the incident.
The complainant was in
his presence for an hour or more, albeit most of it in a room lit
only by a television set. However, for
some time she was able to
witness him in much better lit conditions as they struggled down the
passage to the front door. Similarly,
the complainant's husband was
able to recognise the appellant in these better lighting conditions
as he grappled with him hand
to hand for some time. The complainant
testified that she stabbed the intruder and the appellant was found
bleeding copiously a
short distance away from the complainant's
premises. He furnished a false name to the police and his
explanations of how he came
to sustain his injury were vague and
contradictory.
The final version to
which he pinned his colours, was highly improbable, it involved him
moving across open veld and crossing a
river to find help quite a
considerable distance away from where he was allegedly robbed when he
could have sought assistance from
houses in the immediate vicinity of
where he was allegedly robbed. A large sum of cash was found upon the
appellant and the complainant
testified that this was among the
possessions of which she was robbed.
The magistrate, who was
best placed to make such findings, found that all the state witnesses
were credible. In my view, looking
at the evidence as a whole and
having regard to the probabilities, the conclusion is inescapable
that the identify of the appellant
as the intruder and assailant, was
proved beyond reasonable doubt and his version could safely be
rejected as false.
In his argument today, Mr
Buurman
contended that the convictions were not sound in that
the second conviction represented a splitting of charges, that is the
conviction
for assault with the intent to do grievous bodily harm.
This matter was discussed when the charges were put to the appellant
in
the court below and there was no objection from the appellant's
legal representative. The complaint also does not form a ground
of
appeal and as such cannot properly be relied upon in this court
without taking further steps.
In any event, from a
substantive point of view, I am satisfied that there was no splitting
of charges, in that the assault upon
Mr Strauss by the appellant, was
a separate offence with a separate intent which was formed after the
appellant effected a break-in
and a robbery. It makes no difference
and it certainly does not assist the appellant that he, as was argued
on his behalf, only
assaulted the complainant's husband with a knife
in order to try and escape from the premises, which is not a finding
I make.
Sentence
:
In sentencing the
appellant, the magistrate found that the robbery which had been
committed involved "aggravating circumstances"
as defined
by Act 51 of 1977, i.e. the use of a knife, thus bringing into play
the minimum sentence set out in Part II of Schedule
2 to the
Criminal
Law Amendment Act 105 of 1997
. This had the further result that he
could only impose a lesser sentence if satisfied that"
substantial and compelling circumstances"
existed. The
magistrate found further that the overall aggravating aspects of the
offence was so serious, that a sentence heavier
than the minimum
sentence was justified. Therefore, although he took the two offences
together for the purposes of sentencing on
account of the fact that
they arose out of one incident, the magistrate in effect sentenced
the appellant to 18 years imprisonment
on the conviction of
housebreaking with the intent to rob and robbery.
It is unquestionably so
that aggravating circumstances in the wider sense were present. The
appellant terrorised the complainant
for more than an hour with
threats, including the threat to use what appeared to be a firearm
and he did not hesitate to produce
and use a knife when the
complainant's husband came to her rescue. The entire family,
including the complainant's two young children,
were deeply
traumatised by the events of the night and the psychological scars
which they bear, will no doubt take a considerable
time to heal, if
they do at all.
Also counting against the
appellant was his lengthy list of previous convictions, accumulated
over a period of some 15 years. They
include six convictions for
theft, one for housebreaking and finally a conviction for robbery for
which he was sentenced to three
years imprisonment. It was only
shortly after being released from prison, after serving part of this
sentence, that the appellant
committed the present offences.
On appeal it was
contended that the sentence imposed was disturbingly inappropriate
and induced a sense of shock. In view of the
sentencing regime, the
first question is then whether the magistrate correctly applied the
provisions of what may be colloquially
termed the minimum sentence
legislation. In
S v Vilakazi
2009 (1) SACR 552
, paragraph 15
to 18, it was stated as follows:
"It is clear from
the terms in which the test was framed in
Malqas
and endorsed
in
Dodo
, that it is incumbent upon a court in every case,
before it imposes a prescribed sentence to assess, upon a
consideration of all
the circumstances of the particular case,
whether the prescribed sentence is indeed proportionate to the
particular offence. If
a court is indeed satisfied that a lesser
sentence is called for in a particular case, thus justifying a
departure from the prescribed
sentence, then it hardly needs saying
that the court is bound to impose that lesser sentence."
On behalf of the
appellant it was submitted that the fact that he was an awaiting
trial prisoner for 18 months, that the weapon
he initially wielded
was only a toy firearm and that he only used the knife when cornered
by the complainant's husband amounted
to substantial and compelling
circumstances. I do not consider that these factors, together with
the limited physical injuries
inflicted upon the complainant's
husband, constitute, in the circumstances of this matter, substantial
and compelling circumstances.
The 18 month delay, although
regrettable, is not inordinate by present standards.
The further factors
advanced essentially amount to the contention that the circumstances
of the break-in and robbery could have
been worse. Needless to say,
this can be said of virtually every serious offence. In any event,
the aggravating circumstances,
the chief of which I have set out
above, are so serious as to substantially outweigh the mitigating
factors. I am, therefore, not
persuaded that the magistrate
misdirected himself in not finding any justification or rational
basis to impose something less than
the minimum sentence. Neither
does that sentence, 15 years imprisonment, strike me as disturbingly
inappropriate. It is, however,
in itself a severe sentence and I have
difficulty seeing the basis on which the magistrate saw fit to
increase it by a further
three years, particularly when it is clear
that he subsumed the sentence on count 2 into that on count 1.
Although
going beyond the minimum sentence produced only a three year
difference in the sentence, such a period makes a material
difference
to the sentence. More importantly, an 18 year sentence for
housebreaking and robbery, albeit it a very serious instance
thereof,
brings the sentence, in my view, into the realm of one which is
disturbingly inappropriate and induces a sense of shock.
For
these reasons, I would dismiss the appeal against conviction, but
uphold that against sentence,
REPLACING
THE SENTENCE OF 18 YEARS IMPRISONMENT WITH ONE OF 15 YEARS
IMPRISONMENT
,
antedated
in terms of
section 282
of Act 51 of 1977 to the 16 September 2010.
BOZALEK, J
I agree:
SALDANHA,
J
It
is so ordered:
BOZALEK,
J