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[2014] ZAWCHC 113
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Swartz v S (A430/13) [2014] ZAWCHC 113; 2016 (2) SACR 268 (WCC) (4 August 2014)
THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Appeal
Case No: A430/13
DPP
Ref: 9/2/5/1 – 260/13
Lower
Court ref: SHD 29/13
DATE:
04 AUGUST 2014
In the matter
between:
BERNARD
SWARTZ
.............................................
APPELLANT
And
THE
STATE
.......................................................
RESPONDENT
Coram: DESAI,
BAARTMAN & ROGERS JJ
Heard: 28 JULY
2014
Delivered: 4
AUGUST 2014
JUDGMENT
ROGERS J:
Introduction
[1] This is an
appeal against sentence with the leave of the court a quo. The
appellant was convicted on two counts of unlicensed
possession of a
semi-automatic firearm (counts 1 and 3) and on two counts of
unlicensed possession of ammunition (counts 2 and
4). On each of
counts 1 and 3 he was sentenced to 15 years’ imprisonment and
on each of counts 2 and 4 he was sentenced to
three years’
imprisonment. The magistrate ordered that 10 years of the
imprisonment imposed on count 3 and two years of the
imprisonment
imposed on count 4 should run concurrently with the sentence on count
1. This meant an effective 24 years’ imprisonment.
[2] The appellant,
who was legally represented throughout the proceedings in the court a
quo, pleaded not guilty to counts 1 and
2 and guilty to counts 3 and
4. The State accepted the guilty plea in respect of counts 3 and 4
and the appellant’s accompanying
s 112(2)(b) statement, and he
was duly convicted on those two counts. In respect of counts 1 and 2,
the State led the evidence
of W/O G Arendse and the accused testified
in his own defence. The magistrate accepted the evidence of the
former and rejected
the accused’s version, resulting in his
conviction on counts 1 and 2. There is no appeal against any of the
convictions.
[3] The facts in
respect of counts 1 and 2 are that on the evening of 28 April 2012
Arendse was patrolling in Phumlani in the Lotus
River area together
with a member of the neighbourhood watch. They came across the
appellant who was in the company of another
man. As Arendse got out
of the patrol vehicle to question them, he saw the appellant take
something from his pocket and throw it
over the nearby fence. Arendse
searched the appellant and the other man but found nothing on them.
While the member of the neighbourhood
watch guarded the appellant,
Arendse inspected behind the fence and found a cocked semi-automatic
pistol with eight rounds of ammunition.
The appellant’s
version, which the magistrate rejected, was that he had been in the
company of four other people, that he
had not been in possession of a
firearm or thrown anything over the fence, and that he had not seen
anyone else do so.
[4] In regard to
counts 3 and 4 the appellant said in his s 112(2)(b) statement that
on 21 October 2009 and near Lotus River he
was pushing a trolley of
garbage to a rubbish heap. Two young men ran past him. One of them
threw something onto the rubbish heap.
On closer inspection, the
appellant saw that it was a semi-automatic firearm. He wrapped it up
and placed it in his trolley, thereby
appropriating it to himself. On
his way home he was stopped by the police and they found the firearm
and six live cartridges. Since
the State did not contest this
explanation, the appellant’s version must be accepted.
[5] The appellant
was convicted on 12 April 2013. The State proved a number of prior
convictions. After hearing submissions, the
magistrate imposed the
sentences previously mentioned. On 27 August 2013 the magistrate
heard and granted an application for condonation
and for leave to
appeal against sentence. On 29 November 2013 a direction was made
that the appeal be heard by a full bench.
[6] Ms Adams, who
represented the appellant in the appeal, advanced two main points.
The first was that the magistrate erred in
treating the case as
covered by the minimum sentencing regime contained in the
Criminal
Law Amendment Act 105 of 1997
. The second was that, if the latter
legislation was applicable, the magistrate misdirected himself in
failing to find that there
were substantial and compelling
circumstances to depart from the minimum sentence of 15 years on
counts 1 and 3.
Applicability of
minimum sentencing legislation
[7] Ms Adams
submitted that the sentencing regime applicable to the appellant’s
conviction on counts 1 and 3 was that contained
in
s 121
of the
Firearms Control Act 60 of 2000
read with Column 1 of Schedule 4 and
not the sentencing regime contained in
s 51(2)(a)
read with
Part 2
of
Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
. Insofar as
unlicensed possession of semi-automatic firearms is concerned, the
former sentencing regime would allow the trial court
to impose a
discretionary sentence not exceeding 15 years’ imprisonment
while the latter sentencing regime would require
that a first
offender be sentenced to not less than 15 years’ imprisonment
unless there were substantial and compelling circumstances
to impose
a lesser sentence.
[8] There are some
decisions of the High Court in support of Ms Adams’ contention
but they were overruled by the Supreme Court
of Appeal in S v
Thembalethu
2009 (1) SACR 50
(SCA). In the latter case it was held
that the opening words in
s 51(2)
, namely ‘notwithstanding any
other law’, meant that the sentencing regime in Act 105 of 1997
took precedence over that
laid down in the Arms and Ammunition Act
75 of 1969.
[9] The Arms and
Ammunition Act did not define the terms ‘semi-automatic
firearm’ and ‘automatic firearm’
found in Part II
of Schedule 2 of the
Criminal Law Amendment Act. Section
2 of the
Arms and Ammunition Act contained a general prohibition against the
unlicensed possession of an ‘arm’, a term
defined in such
a way that it would have included a semi-automatic or automatic
firearm. Section 39(2) of the Arms and Ammunition
Act set out the
maximum sentences to which a convicted person could be sentenced. In
general, unlicensed possession of a semi-automatic
or automatic
firearm was subject to a maximum sentence of three or five years’
imprisonment, depending on whether it was
a first or subsequent
conviction.
[10] Like the Arms
and Ammunition Control Act, the
Firearms Control Act 60 of 2000
,
which came into force on 1 July 2004, does not create a specific
offence for unlicensed possession of a semi-automatic firearm.
That
offence is covered by the more general language of
s 3
of the
Firearms Control Act relating
to the unlicensed possession of
firearms. Unlicensed possession of a fully automatic firearm is now
the subject of a separate offence
created by
s 4(1)(a)
of the
Firearms Control Act.
[11
] The penalties
provision of the
Firearms Control Act is
s 121.
It states that any
person convicted of a contravention of or failure to comply with any
section mentioned in Column 1 of Schedule
4 may be sentenced to a
fine or imprisonment for a period not exceeding the period mentioned
in the corresponding item in Column
2. The maximum sentence in the
case of unlicensed possession of a fully automatic firearm in
violation of
s 4(a)
is 25 years’ imprisonment. The maximum
sentence for a violation of
s 3
(unlicensed possession of a
semi-automatic firearm would fall under this section) is 15 years’
imprisonment.
[12] In S v Baartman
2011 (2) SACR 79
(WCC) this court (per Donen AJ, Davis J conc)
considered that Thembalethu did not compel the conclusion that the
Criminal Law Amendment Act overrides
the sentencing regime introduced
by the
Firearms Control Act. Donen
AJ’s reasoning was broadly
as follows. He said (in para 16) that in Thembalethu the court found
that the
Criminal Law Amendment Act created
an ‘enhanced
jurisdiction’ in comparison with the penalties created in terms
of the Arms and Ammunition Act. The position
had changed, he
considered, with the introduction of the
Firearms Control Act because
the latter Act laid down a maximum sentence of 15 years’
imprisonment for unlawful possession of a semi-automatic firearm
and
25 years’ imprisonment for unlawful possession of an automatic
firearm: ‘This differentiation, in my view, suggests
that the
legislature could never have intended to retain the uniform penalty
regime, employed by the State in section 51(2) of
the Amendment Act,
in order to coerce possessors to submit these firearms to licensed
regulation’ (para 17).
[13] He observed,
further, that, while the mandatory penalties imposed for unlawful
possession of a fully automatic weapon could
be ‘accommodated
within the sanctioning regime’ of the
Firearms Control Act, the
same was not true in relation to semi-automatic weapons, because the
minimum sentence of 15 years’ imprisonment under the
Criminal
Law Amendment Act was also the maximum sentence under the
Firearms
Control Act (para
18). With reference to the use of the word ‘may’
in
s 121
of the
Firearms Control Act (the
penalty provision), he
considered that the lawmaker’s intention had been to introduce
and achieve a discretionary sentencing
regime which was not subject
to the minimum sentencing legislation (para 23).
[14] He concluded
that the phrase ‘notwithstanding any other law’ in
s
51(2)
of the
Criminal Law Amendment Act could
not have been intended
to override a future law which introduced its own comprehensive
regulatory and sentencing regime (para 33).
[15] Baartman was
followed in an unreported decision of this court, S v Mentoor Case
A395/2013 (per Nyman AJ, with Ndita J concurring).
Particular
emphasis was placed in Mentoor on the view that the opening words in
s 51(2)(a)
, ‘notwithstanding any other law’, meant any
other law existing at the time of promulgation. In terms of this
interpretation,
the Arms and Ammunition Act was such a law but the
Firearms Control Act was
not.
[16] I respectfully
disagree with the reasoning in Baartman and Mentoor. In terms of
Thembalethu the minimum sentences apply when
the specific
circumstances of an offence bring it within the scope of one of the
schedules to the
Criminal Law Amendment Act. The
words
‘notwithstanding any other law’ in
s 51(2)
appear to me
to be clear and unambiguous and do not permit of a distinction
between law existing when the
Criminal Law Amendment Act came
into
force and law which comes into existence thereafter.
[17] Even if such a
distinction were valid, it would not lead to a different result in
respect of cases governed by the law as it
has existed since 31
December 2007. I say so because, although the
Criminal Law Amendment
Act 105 of 1997
in its original form came into force on 13 November
1998,
s 51
was substituted with the current provision with effect
from 31 December 2007 by way of
s 1
of the
Criminal Law (Sentencing)
Amendment Act 38 of 2007
. Although the previous
s 51
also contained
the words ‘notwithstanding any other law’, and although
the new
s 51
could perhaps have been brought into its current form by
way of amendment rather than substitution, as a fact the lawmaker
substituted
a new section. In doing so, the lawmaker again used the
words ‘notwithstanding any other law’.
[18] The current
s
51
is thus a later law than the relevant provisions of the
Firearms
Control Act. I
repeat, however, that in my view the words
‘notwithstanding any other law’ are not limited to laws
which existed at
any particular date. In what follows, I shall assume
in favour of the appellant that the
Firearms Control Act is
a later
law.
[19] A later Act
might, on a proper interpretation thereof, pro tanto repeal an
earlier Act but that is a different matter. Where
the earlier Act is
stated to apply ‘notwithstanding any other law’, there
would only be a pro tanto repeal or exclusion
by a later Act if the
later Act disclosed an intention to override the express
‘notwithstanding’ provision in the earlier
Act. In order
for there to be an implied repeal there must be an irreconcilable
conflict between the two enactments, the presumption
being against
implied repeal (Khumalo v Director-General of Cooperation and
Development & Others
[1990] ZASCA 118
;
1991 (1) SA 158
(A) at 164C-165E). An
implied intention to repeal might be inferred, for example, from the
circumstance that the later Act could
find no meaningful scope of
operation unless it overrode the earlier Act. That is not the case
here.
[20] The
Firearms
Control Act does
not disclose an intention to effect a pro tanto
repeal of the
Criminal Law Amendment Act. The
penalties provision,
s
129
, does not say that it applies ‘notwithstanding any other
law’.
Section 129
is a maximum-penalty provision, not a
minimum-sentence provision. This is an important distinction.
[21] In certain
circumstances the
Firearms Control Act authorises
a heavier sentence
than the
Criminal Law Amendment Act. As
noted, unlicensed possession
of an automatic firearm is punishable with imprisonment of up to 25
years. In terms of the
Criminal Law Amendment Act, the
minimum
sentence for the same offence is 15, 20 or 25 years, depending on
whether the accused is a first, second or multiple offender.
This
does not, however, give rise to any conflict between the
Firearms
Control Act and
the
Criminal Law Amendment Act. The
combined effect
of the legislation in such circumstances is that the trial court [i]
may only impose a lesser sentence than the
one prescribed under the
Criminal Law Amendment Act (15
, 20 or 25 years’ imprisonment as
the case may be) if there are substantial and compelling
circumstances; [ii] and may impose
a sentence of up to 25 years. The
power to impose (in the case of a first offender) a sentence of more
than 15 years (up to a maximum
of 25 years) would naturally only
arise for consideration if the court concluded that there were no
substantial and compelling
circumstances to impose a sentence of less
than 15 years.
[22] A court
imposing sentence under the
Criminal Law Amendment Act is
always
entitled, in the absence of other legislation, to impose a heavier
sentence than the prescribed minimum. But in relation
(for example)
to the unlicensed possession of an automatic firearm, the
Firearms
Control Act places
a cap on the higher sentence which may be imposed
(a maximum of 25 years’ imprisonment), at the same time
indicating the
lawmaker’s view of the gravity of the offence.
[23] The concurrent
operation of minimum and maximum sentencing regimes is not confined
to offences relating to firearms, explosives
and armaments:
(i) For example,
various offences created in terms of the Protection of Constitutional
Democracy against Terrorist and Related Activities
Act 33 of 2004
(‘the PCD Act’) attract the minimum sentences specified
in s 51(1) or
s 51(2)(a)
of the
Criminal Law Amendment Act, depending
on the precise circumstances of the crime. Section 18 of the PCD Act
sets out the maximum penalties which may be imposed for the
same
crimes, including (where the sentencing court is the High Court) life
imprisonment.
(ii) Various
offences created in terms of the Prevention and Combating of Corrupt
Activities Act 12 of 2004 (‘the PCC Act’)
attract the
minimum sentences set out in
s 51(2)(a)
of the
Criminal Law Amendment
Act if
the amount involved or the character of the crime falls within
the qualifications specified in
Part II
of Schedule 2. Section 26 of
the PCC Act sets out the maximum penalties which may be imposed for
the same crimes, including (where
the sentencing court is the High
Court) life imprisonment.
(iii) Offences
relating to exchange control attract the minimum sentences set out in
s 51(2)(a)
of the
Criminal Law Amendment Act if
the amount involved
or the character of the crime falls within the qualifications
specified in
Part II
of Schedule 2.
Section 34
of the
South African
Reserve Bank Act 90 of 1989
has its own detailed provisions as to
maximum penalties for exchange control offences.
(iv) The offence
referred to in
s 13(f)
of the
Drugs and Drug Trafficking Act 140 of
1992
attracts the minimum sentences set out in
s 51(2)(a)
of the
Criminal Law Amendment Act if
the amount involved or the character of
the crime falls within the qualifications specified in
Part II
of
Schedule 2.
Section 17(e)
of the
Drugs and Drug Trafficking Act sets
out the maximum penalty which may be imposed for the same crime
(imprisonment not exceeding 25 years).
[24] It is clear
that the lawmaker, when it enacted and from time to time thereafter
amended the
Criminal Law Amendment Act, foresaw
and intended that the
minimum sentencing regime would apply to various statutory crimes for
which maximum penalties were laid down
in other legislation. This is
particularly clear in the case of the PCD Act and the PCC Act,
because those very Acts at the same
time amended Part II of Schedule
2 of the
Criminal Law Amendment Act so
as to include in the minimum
sentencing regime various offences created under the PCD Act and the
PCC Act.
[25] Where the
maximum penalty specified in a particular law is the same as or
greater than the minimum penalty specified in the
Criminal Law
Amendment Act, there
is in truth no need to rely on the
‘notwithstanding’ phrase in
s 51
of the latter Act
because there is no conflict between the concurrent applicability of
the maximum and minimum sentencing regimes
and therefore no need to
determine which law is, in the particular circumstances of the case,
paramount.
[26] There are,
however, cases where the
Criminal Law Amendment Act requires
a
heavier penalty than the maximum stated in the
Firearms Control Act.
In
relation to a first offender in respect of the unlawful possession
of a semi-automatic firearm (which is what we are dealing with
in
this appeal), the minimum and maximum are the same – 15 years’
imprisonment. There is thus no ‘conflict’
in this
situation. However, if the accused person is a second or multiple
offender, the
Criminal Law Amendment Act lays
down a minimum sentence
of 20 or 25 years’ imprisonment as the case may be, whereas the
Firearms Control Act contains
no such differentiation. To this extent
there is a potential ‘conflict’ between the two
enactments.
[27] It is in this
latter situation that one needs to determine whether the
Criminal Law
Amendment Act takes
precedence. Even in this situation, I cannot
discern an intention on the part of the lawmaker in the
Firearms
Control Act to
effect a pro tanto repeal of the relevant provisions
of the
Criminal Law Amendment Act insofar
as they relate to unlawful
possession of a semi-automatic firearm. The
Firearms Control Act does
not deal with the specific instance of second or multiple offending
in relation to semi-automatic and automatic weapons, whereas
the
Criminal Law Amendment Act clearly
intended to create particularly
heavy penalties in such cases, notwithstanding any other law. This
conclusion could be justified
on the basis that, in the case of
multiple offending in relation to certain firearms, the
Criminal Law
Amendment Act is
specific legislation whereas the
Firearms Control
Act is
a general law relating to firearms. The maxim which applies
here is generalia specialibus non derogant, which is closely related
to the presumption against implied repeal (Sasol Synthetic Fuels Pty
Ltd & Others v Lambert & Others
2002 (2) SA 21
(SCA) para
17).
[28] One also cannot
infer, from the fact that the
Firearms Control Act creates
different
maximum penalties for unlawful possession of semi-automatic firearms
and automatic firearms whereas
s 51(2)(a)
of the
Criminal Law
Amendment Act subjects
those offences to the same minimum sentences,
that the lawmaker intended, when enacting the
Firearms Control Act,
to
render inapplicable the provisions of the Criminal Law Amendment
Act in regard to firearms. There is nothing inherently irrational
about subjecting two different crimes to the same minimum sentence
but different maximum penalties.
[29] As a final
observation, I find it most unlikely, if the intention with the
enactment of the
Firearms Control Act had
been to repeal (or render
inoperative) the provisions of the
Criminal Law Amendment Act in
relation to semi-automatic and automatic firearms, the lawmaker would
not expressly have dealt with this important question rather
than
leaving it to inference from a general pattern of regulation.
[30] In my view, the
ratio in Thembalethu is applicable to the
Firearms Control Act and
is
binding on us. There are a number of cases where this view of the
legal position has been adopted (in this court, see S v Rossouw
2014
(1) SACR 390
(WCC) paras 3-9; see also S v Madikane
2011 (2) SACR 11
(ECG) paras 18-22; S v Lekhelebane
[2009] ZAFSHC 78
paras 12-13; S v
Khoza [2011] ZAGPJHC 218 para 2; S v Sehlabelo [2013] ZAGPPHC paras
5-9).
[31] Ms Adams did
not contend that, if this were the correct legal position, the
appellant was not sufficiently forewarned of the
applicability of the
minimum sentencing legislation. The charge sheet was framed with
reference to the
Firearms Control Act and
without reference to the
Criminal Law Amendment Act. However
, a trial court is obliged to
apply the
Criminal Law Amendment Act unless
to do so would violate an
accused person’s right to a fair trial. Although it is highly
desirable that the potential applicability
of the minimum sentencing
legislation should be mentioned in the charge sheet, this is not an
indispensable requirement.
[32] In the present
case the appellant was legally represented at his trial. Immediately
after the appellant pleaded the magistrate
asked his attorney whether
the accused had been informed of the potential applicability of
minimum sentences in relation to semi-automatic
weapons. The attorney
confirmed this. This could only have been a reference to the
Criminal
Law Amendment Act, because
the
Firearms Control Act does
not lay down
minimum (as opposed to maximum) sentences and because that Act in any
event does not authorise a separate penalty
specifically for
semi-automatic weapons.
[33] In his judgment
on conviction, the magistrate stated that the firearms in counts 1
and 3 were semi-automatic firearms for purposes
of
s 51(2)
of the
Criminal Law Amendment Act. This
attracted no objection from the
appellant’s attorney. The submissions on sentence were made on
the premise that the
Criminal Law Amendment Act was
applicable and
that the magistrate needed to decide whether or not there were
substantial and compelling circumstances to depart
from the
prescribed minimum sentences.
[34] No point was
taken in the application for leave to appeal that the appellant had
been insufficiently warned of the potential
applicability of the
minimum sentencing legislation.
Substantial and
compelling circumstances
[35] It is
unnecessary to rehearse the well-known principles relating to the
assessment of whether substantial and compelling circumstances
exist
which warrant a departure from a prescribed minimum sentence. I do
not think that the magistrate approached the matter in
a legally
incorrect fashion. He recognised that, even where there are no
specific mitigating features, a sentence might be sufficiently
disproportionate to the crime to convince the trial court that the
imposition of the prescribed sentence would give rise to an
injustice. The more difficult question is whether the magistrate’s
application of the legal principles to the facts of the
case was
justified.
[36] The appellant
was 39 when he perpetrated the crimes to which counts 1 and 2 related
and 40 when he perpetrated the other two
crimes. His attorney stated
that the appellant had reached standard 4; that he lived with his
mother; that he had four children,
of whom the youngest two stayed
with him and his mother; that he was a bricklayer who earned R200 per
day when he had work; and
that he was the family’s sole
breadwinner.
[37] These personal
circumstances do not indicate anything of substance insofar as
mitigation is concerned. Once it is clear (as
it was here) that an
appropriate sentence would on any reckoning involve a substantial
period of imprisonment, family circumstances
of the kind mentioned by
the appellant’s attorney diminish in significance.
[38] The appellant’s
prior convictions constituted an aggravating consideration. Given the
combination of the character of
the convictions, their frequency and
the presence of sentences of imprisonment without the option of a
fine, none of the previous
convictions were required to be
disregarded pursuant to
s 271A
or
s 271B
of the
Criminal Procedure
Act 51 of 1977
. The appellant had three prior convictions (1989, 1991
and 1992) for possession of a dangerous weapon in contravention of s
2(a)
of the Possession of Dangerous Weapons Act 71 of 1968. (A
‘dangerous weapon’ is defined in that Act as meaning any
object other than a firearm which is likely to cause serious bodily
injury if it were used to commit an assault. The maximum sentence
is
two years’ imprisonment.) On the third occasion (1992) the
appellant was sentenced to six months’ imprisonment.
In 2001 he
was convicted of possession of an unlicensed firearm in violation of
s 2 of the Arms and Ammunition Act 75 of 1969 and
sentenced to two
years’ imprisonment. During 1995 he was convicted on two counts
of theft and one count of assault. During
2007 he was again convicted
of theft for which he received a suspended sentence of R900 or 90
days’ imprisonment. Later in
2007 he acknowledged guilt on a
charge of assault and paid a fine of R150.
[39] Although the
aggravating effect of the appellant’s poor record is to some
extent lessened by the fact that his last conviction
of any kind was
in 2007 and that his last conviction for an offence relating to the
possession of weapons was in 2001, his past
brushes with the law
cannot be disregarded. Even for a first offender, s 51(2)(a) requires
a sentence of 15 years’ imprisonment
for unlawful possession of
a semi-automatic firearm. The inclusion of this offence in Part II of
Schedule 2 reflects the lawmaker’s
determination to tackle, by
way of severe sentences, a particular scourge in our society (gun
crime). The magistrate treated the
appellant as a first offender for
purposes of s 51(2)(a), presumably in the absence of any evidence
that his 2001 conviction involved
possession of a semi-automatic
weapon. Nevertheless, the appellant was not, when it came to the
assessment of substantial and compelling
circumstances, entitled to
be treated as a man without relevant prior convictions.
[40] In Madikane
supra Plasket J reviewed the sentences imposed for possession of
automatic firearms (paras 25-28) and of semi-automatic
pistols (para
29-30). He observed that, in relation to the latter class of case, he
had not found decisions, apart from Thembalethu,
in which sentences
exceeding three years’ imprisonment had been imposed. He
acknowledged that the guidance afforded by some
of the cited cases
was undermined by the fact that they were decided on the view, later
found in Thembalethu to be incorrect, that
the minimum sentencing
legislation did not apply and that the maximum penalty under the
relevant part of the Arms and Ammunition
Act was three years’
imprisonment. As against this, the Supreme Court of Appeal in
Thembalethu upheld a sentence of 15 years’
imprisonment imposed
on a first offender. A sentence of 15 years’ imprisonment was
also upheld in Khoza supra.
[41] Unlicensed
possession of semi-automatic firearms is a very serious matter.
Violent crime involving the use of such weapons
has not diminished
since Thembalethu was decided. I have no doubt that the lawmaker, in
requiring a minimum sentence of 15 years’
imprisonment to be
imposed in the absence of substantial and compelling circumstances,
had in mind that generally an unlicensed
weapon of that kind is
possessed for use (whether by the possessor himself or by one to whom
he passes the weapon) in other serious
crimes such as murder, robbery
with aggravating circumstances, hijacking and the like. Very often
the perpetrators of violent crime
are not apprehended.
[42] Crimes such as
rape and robbery with aggravating circumstances cover a wide range of
criminal conduct. In such cases, the criminal
conduct itself (ie
quite apart from the personal circumstances of the accused) can be
regarded as lying on a continuum from the
less serious to the truly
heinous. It is more difficult to view unlawful possession of an
automatic or semi-automatic firearm in
this way. The lawmaker has
said that, in the absence of substantial and compelling
circumstances, a first offender should be sentenced
to 15 years’
imprisonment for unlawfully possessing a semi-automatic firearm. If
the accused person is also convicted of
a crime relating to the use
of the firearm (eg murder), he would be separately sentenced for that
crime. In the absence of special
circumstances explaining how the
unlawful possession came about or in the absence of compelling
personal circumstances relating
to the accused, how can the unlawful
possession of a semi-automatic firearm per se be regarded as not
justifying the prescribed
15-year sentence except on the premise that
the lawmaker was wrong to lay down 15 years as the minimum sentence?
That is not a
premise on which a court is entitled to act.
[43] All things
considered, I do not believe that the magistrate erred in finding, in
relation to count 1, that there were no substantial
and compelling
circumstances to depart from the minimum sentence of 15 years’
imprisonment. The appellant offered a denial
which was found to be
false. No mitigating circumstances in relation to his possession
could be inferred. There was nothing to
place his unlawful possession
of the firearm in a less heinous light than the one which motivated
the lawmaker to lay down a minimum
15-year sentence.
[44] On the other
hand, I think the magistrate erred in finding no substantial and
compelling circumstances in relation to count
3. Whether one regards
the appellant’s explanation as plausible or not, the State
accepted it. One must thus assess the matter
on the basis that the
appellant fortuitously came across the firearm at a rubbish dump and
was apprehended the same day. Naturally
members of society are
expected not to succumb to temptation. The proper course would have
been for the appellant to notify the
police. Nevertheless, his
decision to take the firearm into his possession could be regarded as
having been on the spur of the
moment when the two youths discarded
it. The appellant did not have the firearm in his possession for very
long before he was apprehended.
He pleaded guilty on these two
counts, which counts in his favour. The circumstances of the crime
are such as to make a sentence
of 15 years’ imprisonment
disproportionate.
[45] We are thus at
large to reassess the sentence in relation to count 3 and the related
count 4. In my opinion, a just sentence
would be seven years’
imprisonment in respect of count 3 and one year’s imprisonment
in respect of count 4.
[46] In regard to
count 2, the sentence of five years’ imprisonment for
possession of the ammunition found in the firearm
to which count 1
related appears to me to be very harsh, taking into account that (as
mentioned below) the appellant’s possession
of the ammunition
was tied up in his possession of the firearm itself. I would have
thought a sentence of two years’ imprisonment
appropriate. This
differs sufficiently from the sentence imposed by the magistrate to
warrant interference.
Cumulative effect
[47] This leaves the
question of the cumulative effect of the sentences. We will be
imposing sentences totalling 25 years’
imprisonment as against
the magistrate’s 36 years. Because we are interfering with the
sentence on count 3 and 4, we are
also at large to reassess the
appropriateness of the combined effect of all the sentences. I should
nevertheless mention that the
trial magistrate misdirected himself by
apparently considering that the effective sentence he was imposing
was 21 years’
imprisonment. If the magistrate had a total
effective period of 21 years’ imprisonment in mind, he should
have ordered an
additional three years from counts 3 and/or 4 to run
concurrently with count 1.
[48] The two sets of
charges are not related in point of time. The first two related
offences were committed in April 2012 and the
second two related
offences in October 2012. To exacerbate matters, the appellant was
out on bail when he committed the second
two related offences. The
explanation he gave in respect of counts 3 and 4 has already been
reflected in a significantly reduced
sentence on those counts.
[49] Nevertheless,
sentences in the aggregate of 25 years’ imprisonment strike me
as excessive. The charges relating to possession
of ammunition were
in each case closely related to the possession of the firearm. There
was no evidence that the ammunition was
held separately. In relation
to counts 1 and 2, Arendse said that when he picked up the firearm
that had been thrown over the fence
he removed its magazine and found
seven live cartridges, the eighth being in the barrel. In relation to
counts 3 and 4, the appellant’s
s 112(2)(b) statement is not
explicit on the point, though his version as to how he came into
possession of the firearm suggests
that the six cartridges were
likely to have been in the weapon’s magazine.
[50] If we were to
order that the sentence on count 2 run concurrently with the sentence
on count 1 and that the sentence on count
4 run concurrently with the
sentence on count 3, the overall effective sentence would be 22
years’ imprisonment. That still
appears to me to be excessive,
given that the appellant has not been shown to have been previously
convicted of unlawful possession
of a semi-automatic or automatic
firearm. I regard a total effective period of 18 years’
imprisonment as appropriate. This
combined sentence gives effect to
the severe sanctions contemplated in the legislation and sends out
the appropriate warning to
the community while at the same time
recognising that, because the required sentences are high, the
appellant might be crushed
under their cumulative weight unless some
mercy were shown.
[51] I would thus
allow the appeal to the extent set out below:
(a) There is
substituted for the sentences imposed by the court a quo the
following sentences, antedated to 12 April 2013 (the
date of
sentencing in the court a quo):
(i) on count 1, 15
years’ imprisonment;
(ii) on count 2, two
years’ imprisonment;
(iii) on count 3,
seven years’ imprisonment;
(iv) on count 4, one
year’s imprisonment.
(b) The imprisonment
in respect of counts 2 and 4 and four years of the imprisonment in
respect of count 3 shall run concurrently
with the sentence on count
1, with the result that the accused is sentenced to a total effective
period of 18 years’ imprisonment.
DESAI J:
[52] I concur. An
order is made in the terms proposed by Rogers J.
BAARTMAN J:
[53] I concur.
DESAI J
BAARTMAN J
ROGERS J
APPEARANCES
For Appellant: Ms
L Adams
Cape Town
Justice Centre
3rd Floor, SA
Reserve Bank Building
60 St George’s
Mall
Cape Town
For Respondent:
Mr K Pillay
Office of the DPP
Cape Town