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[2014] ZAWCHC 75
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Sherabeen v S (A102/14) [2014] ZAWCHC 75 (28 May 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
REPORTABLE
CASE
NO: A102/14
DATE:
28 MAY 2014
In the matter
between:
SHERABEEN
FRANCIS
...............................................
Appellant
And
THE
STATE
..............................................................
Respondent
JUDGMENT
DELIVERED ON 28
MAY 2014
Henney, J:
[1] The Appellant
was convicted on 14 October 2013 on one count of robbery with
aggravating circumstances (count 1) and one count
of possession of a
firearm in contravention of Section 3 of Act 60 of 2000 (count 2).
The Appellant in
respect of count 2 was convicted on the basis of a plea that he
tendered in terms of the provisions of
Section 112
(2) of the
Criminal Procedure Act 51 of 1977
. In his plea he admits that he was
in possession of a firearm. He explained that he received the
firearm from a friend of his
by the name of Elton. He took the
firearm in his possession knowing that he did not have a licence to
possess such firearm.
[2] He was
ultimately sentenced to a period of 12 years imprisonment, being ten
(10) years on the first count and an additional
five (5) years on the
firearm possession charge. The court ordered that three (3) years of
the five (5) years be served concurrently
with the sentence imposed
on count 1. With the leave of the court a quo the Appellant appeals
against his conviction and sentence.
[3]
The Evidence
On 11 June 2008 at
or near Paris Road, Wynberg the complainant, Astrid Clements whose
maiden name was Astrid Warren, at about 17h30
went to visit her
mother at the above address. As she parked her car in the driveway,
another vehicle with two unknown assailants
therein, pulled up next
to her car. The occupants wanted some directions. As she was about
to get out of her car, one of the
assailants pulled out a gun,
pressed it against her head and robbed her of her handbag, containing
her wallet, bank and other cards
as well as her wedding rings. They
also requested her to hand over her car keys that she refused and
they did not persist any
further.
[4] It is further
common cause that a few hours after that during the early hours of
the 12 June 2008 at about 00h50, Warrant Officer
Timmy (“Timmy”)
accompanied by her colleague Captain Petersen of the South African
Police Services, Grassy Park, on
the strength of a search warrant
went to Sandpiper Mansions in Grassy Park, where they were also on
the lookout for the Appellant
who was wanted on a different unrelated
charge. As they entered the flat that was identified to be searched,
Warrant Officer Timmy
immediately observed the Appellant. He was
handcuffed and arrested. She immediately observed some suspicious
behaviour on the
part of the Appellant when he moved into the
direction of a television cabinet and pressed his left leg against
it.
[5] She had a look
at his left leg and found two rings inside his left sock. Thereafter
he moved with his right leg towards the
same television cabinet.
This also made her suspicious. She also looked at his right leg and
found a firearm in the inside of
his right sock. When he was
requested by Timmy to give an explanation for the possession of the
items, he said that he picked
up the firearm at a water channel in
Sixth Avenue, Grassy Park about three weeks prior to that.
[6] The firearm was
a Pietro Beretta. According to her it was a semi-automatic firearm.
She also found a black purse in the back
pocket of his trousers.
Inside the purse she found an identity document and driver’s
licence and several bank cards, a discovery
health card and other
store credit or loyalty cards.
[7] All these items
were later handed in at the police station for safekeeping. At a
later stage it was determined that the purse
with the cards, identity
document, licence and rings belonged to the complainant, Astrid
Clements, which she at a later stage identified
as her property.
[8] The Appellant
denied any involvement in the robbery of the complainant. On 11 June
2008 he was at Tygervalley. He was with
a friend of his, Galiep.
They spent the whole day at Tygervalley and returned to Sandpiper
Mansions at 11h00 that evening. Then
he met a person by the name of
Elton who requested him to keep the items as well as the firearm the
police found on him. He went
to sleep and he was handcuffed. This
item was then found on him.
[9] Later after his
arrest, he attended an identity parade and was not identified. He
further testified that he kept the rings
in his sock to keep it safe
because he had a hole in the pocket of his trousers. He did this
because he was afraid that someone
will steal it while he was asleep.
Elton did not tell him who these items belonged to. He thought that
it belonged to his friend.
According to the Appellant, Elton had
since passed away.
[10] The Appellant’s
friend Galiep Basadien (“Basadien”) testified and said
that the Appellant was in his company
the whole day. The Appellant
accompanied him and a lady friend to Tygervalley, where she went to
have her hair done. They arrived
at Tygervalley between four and
five in the afternoon and only came back to the place where the
police found him later after 10h00
that night. They waited there
between 6 – 7 hours. He later became aware of the fact that the
Appellant was arrested. He
later testified that they went to
Tygervalley between 15h00 and 16h00 on 11 June 2007. They arrived
back from Tygervalley between
10h00 – 11h00 that night and he
dropped the Appellant at Sandpiper Mansions. According to him this
happened during the week
and not over a weekend. He could not say
what the name of the place is where she had her hair done.
[11] In
cross-examination he said the day before 11 June 2008 was a Monday.
He cannot however say why he specifically remembers
whether it was a
Monday. He later said that he remembers this because the 12th was on
a Tuesday. He remembers it because it was
the day that the Appellant
was arrested. He later conceded that he made a mistake when he
mentioned that it was on a Tuesday instead
of a Wednesday when he was
with the Appellant. When it was pointed out to him that the day that
the Appellant was talking about
was on 11 June 2008 and not 2007 he
also conceded that he made a mistake. He later testified he cannot
remember when it was when
the Appellant accompanied him and his
girlfriend to Tygervalley.
[12] He also
testified that he does not know where the Appellant stays. Later on
he testified that he assumed that the Appellant
stayed at Sandpiper
Mansions because the Appellant’s grandmother stays there. He
later on again testified he cannot say
whether he stays at Sandpiper
Mansions, but he dropped him off their everyday. When he was asked
why the Appellant gave his address
to the police, the witness gave
various explanations. These are that the Appellant comes to his
house every day, stays around
the corner from where he stays and that
the Appellant sometimes sleeps at his house.
[13]
The Grounds
of Appeal
The Appellant argued
that the court a quo was incorrect to find that the only reasonable
inference to be drawn from this set of
facts was that the Appellant
was the person who committed the robbery. He further contended that
the court after having accepted
his version based upon his plea of
guilty in respect of how he came into the possession of the firearm,
when he said he received
it from Elton, should also on that basis not
have rejected his similar explanation for the possession of the items
which was found
to have been taken from the complainant during the
robbery. On the basis of this argument, he said the court should have
found
that his explanation is reasonably possibly true.
The Appellant
further contends that the court a quo when it imposed an effective
sentence of twelve (12) years, it was disproportionate
to the gravity
of the offence. The court a quo also overemphasized the retributive
aspects whilst not giving sufficient consideration
to the aspects of
deterrence and reformation.
[14]
Analysis
I do not agree with
the contention of the Appellant that the court a quo whilst accepting
the Appellant’s version in respect
of the count 2 (firearm
possession) was wrong in rejecting the Appellant’s version on
the count 1 (Robbery). I disagree with
it for the following reasons:
[15] The factual
basis upon which he was convicted on the robbery charge was entirely
different to that of the possession of firearm
charge. The court
found that he was involved in the commission of the robbery albeit by
means of circumstantial evidence, on 11
June 2008 in Wynberg where he
and another assailant used a firearm to rob the complainant of her
possessions.
[16] In respect of
the second charge, the State alleged that he was in the unlawful
possession of a firearm on 12 June 2008. The
factual basis upon
which the State alleged that he committed the offence was later shown
to be that he was found in possession
of the firearm during the time
of his arrest without him having a licence to possess such firearm.
The factual basis upon which
the Appellant admitted his guilt is not
inconsistent with what the State had alleged and was enough to
sustain a conviction based
on essential elements to prove the charge.
[17] This is
entirely different to the elements and set of facts upon which the
State relied to prove the robbery charge. When
the Appellant pleaded
guilty to the unlawful possession of a firearm charge there was no
dispute against him and the State in respect
of this charge. In this
instance, the State accepted a plea on the Appellant’s version,
including in regard to facts which
are not relevant to the guilt of
the Appellant, although they were included in the Plea explanation in
terms of
Section 112(2).
[18] In respect of
the second charge (ie. unlawful possession of firearm) the
explanation that was given by the Appellant although
it was related
to the defence on the first charge, was not related to the substance
of his admission of guilt on the second charge
(unlawful possession
of firearm). It does therefore not follow when it was accepted as
part of the facts surrounding his plea
on the second charge that the
court should have accorded such explanation the same weight in
evidence in respect of the first charge
(robbery).
[19] It is trite
that where an accused pleads guilty to a charge and gives certain
answers or states a certain exculpatory fact
in his plea such a fact
or answer can count against such an accused, but it cannot be used as
evidence in favour of such an accused
in a later trial.
[20] This court in S
v Adams en ‘n ander
1993 (1) SACR 33
(C) at 337 H – I per
Williamson J held:
“By ‘n
art 112(1)(b)
1
ondervraging tel ‘n beskuldigde se antwoorde teen hom, maar is
nie getuienis in sy guns nie. Die ontkenning van ‘n
beskuldigdes dat hulle nie geweet het dat die afhaal van klipmossels
onwettig was, is dus nie in hulle guns toelaatbaar nie.”
See
also S v Slabbert
1985 (4) SA 248
(C).
[21] Similarly, an
exculpatory fact or answer mentioned in a
Section 112
(2) plea in a
separate charge cannot be used as evidence to bolster a defence based
on the same fact or answer proffered as part
of a defence in a
separate unrelated charge. It also is of no or limited evidential
value because it would be nothing more than
a previous consistent
statement (self corroborative statement) which would only be
admissible as evidence in certain exceptional
circumstances.
[22] The further
reason why this argument in my view cannot be accepted as correct is
that whilst a direct link was established
between the stolen items
that were found in possession of the Appellant and the robbery, no
such link has found to exist between
the unlawful possession of the
firearm by the Appellant and the robbery. The trial court made no
finding that the specific firearm
which was found in the Appellant’s
possession had been used in the robbery; nor did it find that Elton
had been involved
in the robbery.
[23] The Regional
Magistrate in convicting the accused relied on circumstantial
evidence in concluding that the only reasonable
inference to be drawn
was that the Appellant was one of the persons who committed the
robbery. The court a quo also relied on
the so-called doctrine of
recent possession. The court a quo relied on the decision of S v
Parrow
1973 (1) SA 603
(A) where it was held that:
“On proof of
possession by the accused of recently stolen property, the court may
convict him of theft in the absence of an
innocent explanation which
might reasonably and possibly be true. i.e. the Court should think
its way through the totality of
the facts of each particular case,
and must acquit the Accused unless it can infer, as the only
reasonable inference that he stole
the money.”
[24] The Court
rejected the explanation the Appellant had proffered that he had
received the stolen items as well as the firearm
from Elton. I agree
with the reasoning and conclusions of the court a quo. On the
uncontested evidence of Timmy, it appeared
that the behaviour of the
Appellant was indeed suspicious during the time of his arrest. He
was clearly trying to conceal the
stolen property and the firearm
that he was supposed to keep for his friend Elton, which was kept in
his socks.
[25] His explanation
as to why he hid it in his sock does not accord with that of a person
who innocently possessed the items on
behalf of someone else. He was
further unable to give a satisfactory explanation as to why he would
on behalf of Elton hold the
identity document and other cards whereon
the name of the complainant appeared, without enquiring from Elton
whose possessions
it was.
[26] He suspiciously
moved his legs and stood against a television cabinet when the police
came to him before he was searched.
The evidence about his alibi is
unconvincing and improbable. He was also contradicted by his
witness, Basadien on this aspect.
It is difficult to accept why he
would accompany his friend Basadien who went with his girlfriend to
Tygervalley to have her hair
done. It is further improbable that
they would have stayed there and have waited for her between 6 to 7
hours.
[27] The court a quo
was therefore correct to reject his evidence about his whereabouts on
the night of the robbery. His evidence
about this is unconvincing
and unsatisfactory. He was also unable to give a satisfactory
account of how he came to possess the
property that was stolen from
the complainant a few hours before the police found it in his
possession. It is further strange
that all the property that was
stolen during the robbery was found in his possession.
[28] It is unlikely
that if someone else other than the Appellant had also committed the
robbery that he (Appellant) would be in
possession of all the stolen
property in such a short time space, between the time the robbery was
committed and the police finding
Appellant in possession thereof.
The coincidence of something like this happening is highly unlikely.
The Regional Magistrate
was therefore correct in applying the two
cardinal rules of logic in R v Blom
1939 AD 188
in dealing with
circumstantial evidence, where it was held:
“(1) The
inference sought to be drawn must be consistent with all the proved
facts. If it is not, then the inference cannot
be drawn.
“(2) The
proved facts should be such that they exclude every reasonable
inference from them save the one to be drawn. If they
do not exclude
other reasonable inferences, then there must be doubt whether the
inference sought to be drawn is correct.”
The Regional
Magistrate therefore was correct to hold that the only reasonable
inference that could be drawn from this was that
the Appellant was
involved in the commission of the robbery.
[29] In respect of
sentence, I do not agree that the sentence imposed is
disproportionate. In respect of the first count the Appellant
faced
a minimum sentence of 15 years in terms of
Section 51
of the
Criminal
Law Amendment Act 105 of 1997
. The Regional Magistrate in my view
correctly found that there were substantial and compelling
circumstances to deviate from the
prescribed sentence.
[30] The court a quo
followed a correct approach by cumulatively considering all the
circumstances in determining whether there
are substantial and
compelling circumstances. In this regard the court a quo had regard
to the fact that the Appellant was a first
offender, his relative
youthful age of 21 years, the fact that his youthfulness may have
been a factor which contributed to him
committing the offence. These
factors weighed heavy in favour of the Appellant.
[31] Against this
the court a quo had regard to the circumstances under which the
offence was committed. In particular, that a
firearm was pressed
against the head of a defenceless young woman who seemed to be easy
prey for the Appellant and his associate.
This left the complainant
particularly vulnerable and it was a very traumatic experience that
she encountered.
[32] The mere fact
that she did not sustain any injuries can in my view not be regarded
as a factor in favour of the Appellant.
The firearm that was used
was enough to instil fear and overcome any resistance she might have
offered. If she did in fact sustain
injuries it would have justified
a more harsher sentence. When firearms are used, there is always the
possibility of serious injury
or even death occurring as so often
happens in the violent crime-ridden society we live in.
[33] A robbery of
this nature usually implies a measure of planning and premeditation,
where defenceless, vulnerable victims are
singled out and preyed
upon. The prevalence of these kinds of robberies as the Regional
Magistrate correctly pointed out is on
the increase. It is where
unsuspecting members of the public are attacked in their driveways
when the assailants either force
them into their homes or where they
are dispossessed by violent means of their vehicles and other
possessions whilst they are in
and around their homes. What is
particularly aggravating is when it happens at their homes where they
are supposed to feel safe
and are usually unguarded.
[34] It is in the
interest of society that the courts in the sentences that it imposes,
express their strong disapproval and abhorrence
to this kind of
behaviour. The further two (2) years imprisonment for the unlawful
possession of a firearm that was imposed on
the Appellant in this
case is in my view, also an appropriate sentence.
[35]
Order
In the result
therefore I make the following order:
“The Appeal
against conviction and sentence is dismissed”.
HENNEY, J
Judge of the High
Court
I agree.
CLOETE, J
Judge of the High
Court
1
“
A
Section 112(2)
Statement serves the same purpose a questioning in
terms of
S112(1)(b)
…” See Du Toit et al
Commentary of Criminal Procedure at 17-24