S v Davids
Jurisdiction | South Africa |
Citation | 1998 (2) SACR 313 (C) |
S v Davids
1998 (2) SACR 313 (C)
1998 (2) SACR p313
Citation |
1998 (2) SACR 313 (C) |
Court |
Cape Provincial Division |
Judge |
Comrie J |
Heard |
March 27, 1998 |
Judgment |
April 2, 1998 |
Counsel |
S Mohamed for the accused |
Flynote : Sleutelwoorde D
Indictment and charge — Splitting of charges — Accused convicted of aiding prisoner to escape and agreement to accept bribe (contraventions of s 43 of Correctional Services Act 8 of 1959 and of s 1(1)(b) of Corruption Act 94 of 1992 respectively) — It appearing that accused, a prison E warder, had agreed to accept bribe from prisoner as quid pro quo for assisting him to escape — Application of 'intention' test for duplication revealing that accused acted with single intent throughout, ie, to carry out corrupt bargain, and that his conduct thus amounted to single F criminal transaction — Accused ought not to have been convicted of agreement to accept bribe.
Sentence — Imposition of — Factors to be taken into account — Prevalence of offence and interests of community — Prison warder convicted of assisting prisoner to escape (contravention of s 43 of Correctional Services Act 8 of 1959) — Corruption in public service having become rife — G Community relying on officers of the Department of Correctional Supervision to fulfil task of ensuring that convicted persons serve sentences — Corrupt dereliction of duty by officers, resulting in escape, to be dealt with firmly by Courts.
Headnote : Kopnota
The appellant was convicted of (a) contravening s 43 of the Correctional Services Act 8 of 1959 (aiding a prisoner to H escape) and (b) contravening s 1(1)(b) of the Corruption Act 94 of 1992 (receipt of or agreement to receive a bribe). It appeared that the appellant was a warder at a prison, and that he had agreed to accept a bribe from a prisoner, one J, as quid pro quo for assisting J to escape. In the event J's escape was successfully procured, and he was at liberty for about a I month before being recaptured. The assistance thus rendered to J, and the agreement to accept a bribe from him, were the bases of the aforesaid two convictions. He was sentenced to three years' imprisonment on each count, which sentences were ordered to run concurrently to the extent that an effective four years' imprisonment had to be served. On appeal it was argued that there had been an improper J
1998 (2) SACR p314
A duplication of convictions, and that the appellant should have been convicted of one or the other of the offences, but not of both.
Held, that the underlying ratio of the rule against duplication was that an accused person should not be convicted of two crimes, and sentenced for two crimes, when in substance he or she had committed only one crime.
B Held, further, that the two principal tests devised by the Courts, as aids to the determination of such a duplication, were the evidence test and the intention test. They were not rules of law, nor were they exhaustive. They were no more than useful practical guides. If they failed to provide a satisfactory answer, the matter was left to the wisdom, experience and sense of fairness of the Court.
C Held, further, that the evidence test enquired whether the evidence necessary to establish the commission of one crime involved proving the commission of another crime. That test was of no assistance to the appellant in casu, as the State was able, if so minded, to prove the bribe without proving the subsequent aided escape, or to prove the escape without proving the anterior bribe.
D Held, further, that the intention test enquired whether two criminal acts were done with a single intent, and constituted one continuous criminal transaction. In the present case the dereliction of duty entailed by the aided escape constituted a discrete crime, but in committing that crime the appellant was carrying out his side of the corrupt bargain with J. That was his intention, in the broad sense, throughout. It therefore appeared that the present case satisfied the intention test, namely, E that the appellant had committed two acts - agreeing to the bribe, and aiding the escape - with a single intent, and that those acts therefore constituted one continuous criminal transaction. That conclusion was also dictated by the Court's experience and sense of fairness.
Held, therefore, that a duplication of convictions had occurred in casu.
F Held, further, that J's actual escape, aided by the appellant, was a more serious offence than the agreement to bring about that escape.
Held, therefore, that the conviction on the count of assisting a prisoner to escape had to be upheld, while the conviction on the count of agreeing to accept a bribe had to be set aside.
Held, further, that because the trial court had sentenced the appellant for two offences, whereas it ought to have sentenced G him for one offence only, the Court of appeal was bound to consider sentence afresh.
Held, further, that corruption in the public service was rife. In recent times there had been a veritable epidemic of escapes from prisons and police cells. Some of those escapes must have been the outcome of corruption, as was the escape in the present case. It was in the interests of the community that persons sentenced to substantial terms of imprisonment should H serve their sentences. The community relied upon the officers of the Department of Correctional Supervision to fulfil that task. Those officers had to be under no illusion: a corrupt dereliction of duty, resulting in an escape, would be dealt with firmly by the Courts. Deterrence played an important role in the sentence to be imposed in casu.
Held, further, that for this reason, and in the light of other relevant factors, the appropriate sentence to be imposed in I respect of the conviction on the charge of assisting a prisoner to escape, was two years' imprisonment.
Case Information
Appeal against conviction and sentence in a magistrate's court.
S Mohamed for the accused.
T L Heunis for the State. J
1998 (2) SACR p315
Cur adv vult. A
Postea (April 2).
Judgment
Comrie J:
The appellant was convicted by a district magistrate of:
count 1: |
contravening s 43(a) of the Correctional Services Act 8 of 1959, in that he aided prisoner Josephs to escape from Pollsmoor Prison; and B |
count 3: |
contravening s 1(1)(b) of the Corruption Act 94 of 1992 in that he, being a warder at Pollsmoor Prison, corruptly agreed to receive certain benefits from prisoner Josephs as a quid pro quo for assisting Josephs to escape from the said prison. The C promised, but undue benefits were R5 000 in cash plus a second-hand BMW motor car, worth between R80 000 and R90 000, for free. |
The appellant was remitted to the regional court for sentence. That court sentenced him: D
on count 1: |
to three years' imprisonment; |
on count 3: |
to three years' imprisonment, of which two years were to run concurrently with the sentence on count 1. E |
The effective sentence therefore amounted to four years' imprisonment.
The appellant appeals against the convictions and the sentences.
Ad the convictions
The sole ground of appeal is that there was an improper duplication of convictions, and that the appellant should have been F convicted of one or other of the two offences mentioned above, but not of both offences. I may say that each of count 1 and count 3 was thoroughly proved. The evidence established that prisoner Josephs was serving a nine-year sentence for motor theft. He enjoyed certain privileges in prison together with a considerable degree of mobility within the prison complex. He was on a good footing with the appellant and was able to do the appellant a number of...
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