About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2014
>>
[2014] ZAWCHC 209
|
|
Adams and Another v S (A418/2014) [2014] ZAWCHC 209 (5 December 2014)
IN THE HIGH COURT OF
SOUTH AFRICA
WESTERN CAPE DIVISION,
CAPE TOWN)
CASE NUMBER: A418/2014
DATE: 5 DECEMBER 2014
In the matter between:
ALLAN
ADAMS
..................................................................................................................
1st
Appellant
ELROY
HANSON
.............................................................................................................
2nd
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
RILEY. AJ:
The appellants were charged in the
regional magistrate’s court at Wynberg on three counts, namely
robbery with aggravating
circumstances (read with the provisions of
section 51(1) and
section 51(2)
of the
Criminal Law Amendment Act 105
of 1997
as amended), possession of a firearm in contravention of
section 3
of the
Firearms Control Act 60 of 2000
and possession of
ammunition in contravention of
section 90
of the
Firearms Control Act
60 of 2000
.
The charges can be summarised as
follows: on count one it is alleged that on 17 April 2009 at Wynberg
the appellants unlawfully
and with intent to force him into
submission, threatened the complainant with a firearm and then
unlawfully with the intent to
steal took from his control and / or
possession a Volkswagen Golf motor vehicle, a cellular phone and a
wallet. The State alleged
that aggravating circumstances as described
in
section 1
of Act 51 of 1977 was present when the crime was
committed, in that during the commission of the crime the appellants
handled a
9mm firearm and threatened to inflict serious bodily harm
on the complainant.
On count two it is alleged that on 17
April 2009 and at Wynberg the appellants did unlawfully have in their
possession a 9mm short
calibre Izmech semi-automatic firearm without
being the holder of a license, permit or authorisation issued in
terms of the Act
to possess that firearm. On count three it is
alleged that on the same day and at the same incident the appellants
did unlawfully
have in their possession ammunition to wit 9 x 9mm
short cartridges without being the holders of a license in respect of
the firearm
capable of discharging the ammunition.
The appellants, who were represented in
the court a quo, pleaded not guilty to all three charges. On 12
August 2013 the appellants
were both convicted on all three counts
and sentenced as follows:
Count one: fifteen years imprisonment.
Count two: six years imprisonment.
The court ordered that one year of the
sentence imposed in count two be served concurrently with the
sentence imposed on count one.
Count three, three year’s
imprisonment.
The court ordered that the whole of the
sentence be served concurrently with the sentence on count one.
The appellants applied for leave to
appeal in the court a quo against both their convictions and
sentence. Leave to appeal was refused
in respect of the convictions,
but granted in respect of the sentences imposed. The facts giving
rise to the convictions are as
follows: At 6h15 pm on 17 April 2009
the complainant had pulled up on the side of Broad Road, Wynberg. As
he was getting out of
his vehicle he was approached by the
appellants. The first appellant who had a firearm pushed him back
into his vehicle and told
him that if he made a noise he would be
shot.
Whilst this was taking place, the
second appellant opened the passenger door behind him and got into
the vehicle. First appellant,
who was still outside the vehicle at
the driver’s side, asked him for his wallet (which contained R2
000, 00 cash and credit
cards) and cellular telephone and then
proceeded to take it out of the top pockets of his jeans. When first
appellant had his cellular
phone and wallet, he then told the
complainant that the complainant was going to drive them. The
complainant then pleaded with
the appellants to take whatever they
wanted but to allow him to get out of the car. First appellant then
ordered him to unlock
the gear lock and to start the vehicle.
According to the complainant whilst
this was taking place, first appellant had the firearm pressed
against his side. Whilst he was
being ordered to start the vehicle
the second appellant attempted to take his wristwatch off his arm.
After he had started the
vehicle, first appellant allowed him to get
out of the vehicle. First appellant then got into the vehicle and he
and the second
appellant then drove off. The complainant then went to
his friend and related what had happened and they, together with
another
person who had witnessed the incident, then proceeded to
follow the appellants in the complainant’s friend’s
vehicle.
They pursued the appellants and caught
up with them at Makro on Old Strandfontein Road. Whilst in pursuit
they contacted the police
and reported the incident. They lost the
appellants when they had to stop at a red robot. Whilst driving in
the area in search
of the appellants they were contacted by SAPS who
advised them that the complainant’s vehicle had been found.
When they came
to the scene further down on Strandfontein Road in the
vicinity of Strandfontein, his vehicle was on the side of the road
and the
police were on the scene.
The appellants were already in the
police van. His motor vehicle was not damaged but the contents of two
bags that he had on the
backseat, containing books and a laptop
computer, were on the backseat. He recovered his cellular telephone
and his wallet less
an amount of R800.00 and his motor vehicle.
During the search of the vehicle the police found the Szhmech Makarov
9mm pistol which
was loaded with 9 x 9mm rounds of ammunition. A
short while later and whilst he was at Wynberg SAPS the complainant
saw the appellants
after their arrest and he pointed out to the
police that the second appellant was wearing his black leather jacket
which he then
recovered.
As a result of the incident the
complainant was traumatised and for a few weeks after the incident
suffered flashbacks and was scared
to drive his vehicle. It was
contended on behalf of the appellants that the court a quo had
misdirected itself in respect of sentence
in the following respects:
(1) That it failed to take into account
the cumulative effect of the sentence imposed, considering that it
was dealing with multiple
offences and that since count two and three
is an integral part of count one, the sentences on counts two and
three could easily
be taken together for the purposes of sentencing.
(2) That the court a quo erred and
misdirected itself by not exercising its discretion judicially and
properly by not attaching
sufficient weight to the main purposes of
punishment, namely deterrence, prevention, reformation and
retribution.
(3) That the court a quo erred by not
taking properly into consideration the nature of the offence and the
prospects of rehabilitation.
Section 52(2) (a) of the Act provides
inter alia that a regional court or a high court shall, in respect of
a person who has been
convicted of robbery when there are aggravating
circumstances, sentence a first offender to imprisonment for a period
of not less
than 15 years, unless the court is satisfied that
substantial and compelling circumstances exist that justify the
imposition of
a lesser sentence than the sentence prescribed. See S v
Malgas
2001 (1) SACR 469
(SCA).
It is trite law that a court of appeal
will only interfere with a sentence of a lower court in circumstances
where the court a quo
has not exercised its discretion in regard to
sentence properly or judicially. It is however also accepted that
courts should as
far as possible have an unfettered discretion in
relation to sentence and that this is a principle which has been
constantly recognised.
See S v Thoms; S v Bruce
1890 (2) SA 802
(A)
at 806H-I.
It must be borne in mind as stated by
Trollop, JA in S v Pillav
1977 (4) SA 531
(A) at 535e-f that:
“As the essential inquiry in an
appeal against sentence however is not whether the sentence was right
or wrong, but whether
the Court in imposing it exercised its
discretion properly and judicially, the mere misdirection is not by
itself sufficient to
entitle the Appeal Court to interfere with the
sentence; it must be of such a nature, degree; or seriousness that it
shows; directly
or inferentialiy; that the Court did not exercise its
discretion at all or exercised it improperly or unreasonably. Such a
misdirection
is usually and conveniently termed one that vitiates the
Court’s decision on sentence.”
In S v Moswathupa
2012 (1) SACR 259
at
261, paragraph 4 Theron, JA restated the general sentencing
principles that:
“In determining an appropriate
sentence, the court should be mindful of the foundational sentencing
principle that, ‘punishment
should fit the criminal as well as
the crime, be fair to society and be blended with a measure of
mercy’.
In addition to that the Court must also
consider the main purposes of punishment, which are deterrent,
preventive, reformative and
retributive.
In the exercise of its sentencing
discretion a court must strive to achieve a judicious balance between
all relevant factors ‘in
order to ensure that one element is
not unduly accentuated at the expense of and to the exclusion of the
others’.”
See also S v Rabie
1975 (4) SA 855
(A)
at 862g-h. It also important that the sentencing court must avoid
imposing a sentence that is so disproportionate to the nature
of the
offence that it can ‘be typified as gross [and thus
constitutionally offensive]’. See S v Vilakazi
2009 (1) SACR
552
(SCA) at 560. In S v Mahomotsa
2002 (2) SACR 435
the
SCA held that even in cases falling
within the categories delineated in the Act there are bound to be
differences in the degree
of their seriousness. The Court held
further that there should however be no misunderstanding about this
as they will all be serious
but some will be more serious than others
and subject to the caveat that it is only right that the difference
in seriousness should
receive recognition when it came to the meting
out of punishment. See also S v MN
2011 (1) SACR 286
(ECG).
Our courts have consistently held that
where a court has to impose a sentence for multiple offences, the
court has to seek an appropriate
sentence for ail offences taken
together. Accordingly, when dealing with multiple offences a court
must not lose sight of the fact
that the aggregate penalty must not
be unduly severe. See S v Moswathupa above at paragraph [8] at page
263g and S v Mabunda
2013 (2) SACR 161
(SCA).
Where counts are closely connected in
time, place and circumstances, they may still be taken together for
the purposes of sentence
and treated as one. In the present matter
the evidence shows that the relevant offences are ‘inextricably
linked in terms
of locality, time, protagonist and importantly, the
fact that they were committed with one common intent’. See S v
Mokela
2012 (1) SACR 431
(SCA) at paragraph [11].
The court a quo took into account that
the first appellant was 36 years old, was unmarried, passed grade 9,
was self- employed and
earned R900,00 per week and that he had three
minor children aged 13, 9 and 5 years old, who lived with their
mother. In respect
of the second appellant the court a quo took into
account that he was unmarried, had three children aged 14, 7 and 5,
with two
different women, that the children were still at school,
that he had left school after passing grade 10 and that he had been
employed
as a mechanic a few years before the matter. I pause to
mention here that it is clear that both appellants spent at least two
years
in custody awaiting trial before bail was set for them.
In considering an appropriate sentence
and in deciding whether or not the appellants had proved the
existence of substantial and
compelling circumstances, the trial
magistrate stated as follows at paragraph 22 at record page 329:
“I find no circumstances that may
lead this court to deviate from the prescribed sentence as sought by
the defending advocate
here today. Aggravating circumstances I have
mentioned regarding your personal circumstances, as well as the
nature of the crime
and also the interest of the community.”
And further:
“I am not moved as well by the
plea regarding accused two for the court to direct that the sentence
that is going to be imposed
should run concurrently with the sentence
that he is now serving regarding the crime that he was (sic)
committed (sic) of in August
2012, because I believe that each crime
that the offender has committed he must pay for it. I however have
been persuaded to direct
that some of the imprisonment term is going
to be imposed on you should run concurrently with a term of
imprisonment on each of
the counts regarding the nature of these
crimes that you have been found guilty of.” [See paragraph 6 to
16 and at the record
page 330.]
It is correct that violent crime of
this nature is endemic in this country and that in an attempt to
combat this kind of crime,
the legislator has provided for a
prescribed minimum sentence of 15 years for a first
There is further no doubt that in
crimes like the present, punishment and deterrence are factors that
stand out in determining an
appropriate sentence. It is however clear
that in considering an appropriate sentence in this matter, the trial
magistrate did
not properly have regard to the principles set out in
S v Mahomotsa, S v Mabunda, S v Moswathupa and Kruger above, nor did
the
trial magistrate take into account the determinative test in
relation to prescribed minimum sentences which was laid down in S v
Malqas at paragraph 25, which deserves to be emphasised:
“If the sentencing Court on
consideration of the circumstances of the particular case is
satisfied that they render the prescribed
sentence unjust in that it
would be disproportionate to the crime, the criminal and the needs to
society, so that an injustice
would be done by imposing that
sentence, it is entitled to impose a lesser sentence.”
The court a quo was required by Malgas
to apply its mind to whether the sentence was proportional to the
offence. The court a quo
failed altogether to do so See S v Viiakazi
(supra). The approach adopted by the trial magistrate and his failure
to have regard
to the principles as set out in the authorities
referred to hereinbefore, amount to a misdirection. Although by their
very nature
all cases of robbery with aggravated circumstances are
severe, this robbery was not associated with the level of gratuitous
violence
which is all too often the case. And although the
complainant was clearly terrified of being shot, traumatised and
suffered flashbacks
of the incident for a few weeks thereafter, no
further physical violence was inflicted and no bodily injuries was
suffered. He
recovered his motor vehicle and items of value, less the
amount of approximately R800,00.
What is aggravating is that both
appellants have previous convictions. Although first appellant does
not have previous convictions
for robbery, he does have previous
convictions for receiving stolen property, assault with intent to do
grievous bodily harm, resisting
arrest/obstructing members of the
police in the execution of their duties and possession of dependence
producing drugs, first appellant
has never been sentenced to direct
imprisonment. At the time of sentencing, the second appellant on the
other hand, had three previous
convictions for theft, one for
housebreaking with intent to steal and theft, one for assault with
intent to do grievous bodily
harm, a contravention of the Domestic
Violence Act and for possession
Second appellant had in the past
received the benefit of the imposition of fines, suspended terms of
imprisonment, periodical imprisonment,
correctional supervision
(which was later converted into imprisonment due to non-compliance)
and direct imprisonment. In fact on
21 June 2007 he was sentenced to
one year imprisonment. He was released on parole on 20 June 2008 and
committed these offences
within a year. At the time of sentencing in
this matter he had been sentenced to five years imprisonment for
attempted theft.
It is a general accepted principle of
our law that sentencing should be individualised. It is clear that
the trial magistrate did
not apply the principle of individualisation
in regard to sentence. It is further clear that, if one has regard to
their respective
previous convictions, the second appellant falls
into a completely different category of offender, if compared to the
first appellant.
The trial magistrate made no distinction between the
appellants and clearly approached this matter on the basis that the
prescribed
minimum sentence would be imposed as a matter of course
unless the personal circumstances of the appellants disclosed it to
be
an exceptional case.
This kind of approach is not
permissible. Du To it et-al, in their Commentary on the Criminal
Procedure Act, 28-10B to 28-10B- 1,
state that:
“A Court should at all times be
alert to the fact that deterrence is not. the main purpose of
sentence and that the negation
of the principle of individualisation
of punishment can lead to the absurd situation where a convicted
person is - for all practical
purposes - punished for crimes not yet
committed (individual deterrence) or for the crimes that other people
might still commit
(general deterrence).”
In my view this amounts to a further
misdirection on the part of the trial magistrate. A distinction
should be made in respect of
the sentences imposed in respect of the
first and the second appellants. I am satisfied that having regard to
the principles as
laid down in S v Mabunda (supra) and the cases
referred to hereinbefore, that this robbery cannot be regarded as
falling into the
upper echelons of severity of crimes of this nature.
In my view the effective sentence of 20 years imprisonment imposed on
the
appellants in respect of the three counts is shockingly
inappropriate and disproportionate to the seriousness of the
offences.
I agree with the sentiments of Leach,
JA where he stated that:
“As much as it is necessary both
to punish the appellant and attempt to deter others from similar
crimes, the effective sentence
is one that is likely to break rather
than to rehabilitate him. It would be wrong to sacrifice the
appellant on the altar of deterrence.
As was recently reaffirmed by
this court, mercy and not a sledgehammer is the concomitant of
justice.”
Considering that a distinction must be
made between the appellants I am of the view that a proper and just
sentence in respect of
the first appellant in the circumstances of
this case would be an effective term of twelve years imprisonment on
count one, together
with an order that the sentences imposed on
counts two and three be ordered to run concurrently with the twelve
years imprisonment
on count one.
As far as the second appellant is
concerned I am of the view that a proper and just sentence for him on
count one would be an effective
term of fifteen years imprisonment,
and that the sentences imposed on counts two and three be ordered to
run concurrently with
the fifteen years imprisonment on count one.
In the result I would propose the
following order:
(a) THE APPEAL
SUCCEEDS IN RESPECT OF THE FIRST APPELLANT TO THE EXTENT THAT THE
SENTENCE OF 15 (FIFTEEN) YEARS IMPRISONMENT ON
COUNT ONE IS SET ASIDE
AMD REPLACED WITH A SENTENCE OF 12 (TWELVE) YEARS IMPRISONMENT. THE
SENTENCES OF 8 (SIX) YEARS AND 3 (THREE!
YEARS IMPRISONMENT IMPOSED
IN RESPECT OF COUNTS TWO AND THREE RESPECTIVELY ARE TO RUN
CONCURRENTLY WITH THE SENTENCE OF 12 (TWELVE)
YEARS IMPRISONMENT
IMPOSED ON COUNT ONE.
(b) THE APPEAL
SUCCEEDS IN RESPECT OF THE SECOND APPELLANT TO THE EXTENT THAT THE
SENTENCES OF 6 (SIX) YEARS AND 3 (THREE) YEARS
IMPRISONMENT IMPOSED
BN RESPECT OF COUNTS TWO AND THREE RESPECTIVELY ARE TO RUN
CONCURRENTLY WETH THE SENTENCE OF 15 (FIFTEEN)
YEARS IMPRISONMENT
IMPOSED ON COUNT ONE.
(c) IN RESPECT OF
BOTH THE APPELLANTS, THE SENTENCES ARE ANTEDATED TO THE DATE UPON
WHICH SENTENCE WAS IMPOSED BY THE TRIAL
RILEY, AJ
I agree.
UEER, J