S v Smith

• Jurisdiction: South Africa
• Judgment Date: 26 January 2017
• Citation: 2017 (1) SACR 520 (WCC)

S v Smith
2017 (1) SACR 520 (WCC)

2017 (1) SACR p520

Citation	2017 (1) SACR 520 (WCC)
Case No	A273/16
Court	Western Cape Division, Cape Town
Judge	Rogers J and Parker AJ
Heard	November 18, 2016
Judgment	January 26, 2017
Counsel	H Scholzel for the appellant.; ADR Stephen SC for the state.

Flynote : Sleutelwoorde

B Sentence — Conspiracy — Prescribed sentence for principal offence not starting point for assessing appropriate sentence for conspiracy to commit offence.

Sentence — Factors to be taken into account — Remorse — Expression of remorse not essential requirement for court to exercise mercy.

C Murder — Conspiracy to commit murder — Sentence — Appellant convicted of conspiracy to murder his business partner — Appellant's co-conspirator, his ex-girlfriend, having been sentenced in plea-and-sentence agreement with state to wholly suspended sentence for same offence — In appellant's appeal, court holding that latter sentence inappropriately lenient and imposing sentence of seven years' imprisonment of which D three years suspended.

Headnote : Kopnota

The appellant appealed against his conviction and sentence in the magistrates' court for conspiracy to murder. He was sentenced to nine years' imprisonment of which two years were suspended. His conviction was based largely E on the evidence of his former girlfriend who had entered into a plea-and-sentence agreement with the state and was sentenced for same to a wholly suspended sentence of two years' imprisonment. The testimony revealed that the appellant and the complainant were the joint owners of a security business but that the appellant had misappropriated some of the business' F income for his own account. The complainant confronted him and after some time the appellant agreed to repay him. The appellant and his girlfriend nonetheless devised a plan to kill the complainant. In an authorised police-sting operation the girlfriend was arrested after handing over money to the person who pretended to be the assassin. The court, after analysing the evidence on the merits, upheld the conviction and then considered the appeal against sentence.

Held, that the magistrate's opinion that the prescribed sentence for murder was a starting point in assessing an appropriate sentence for conspiracy to murder was incorrect. The fact that the permissible sentencing range for conspiracy to commit a crime was determined by the permissible sentencing range for the crime itself did not mean that the starting point was the sentence which would have been imposed if the crime had been successfully H committed. (Paragraph [101] at 528h–i.)

Held, further, that the magistrate had also erred in finding that remorse was the 'flipside of the coin of mercy' and that she could not give consideration to the element of mercy where the appellant had not expressed remorse. (Paragraph [107] at 530b–c.)

Held, further, that there was an enormous difference between the sentence I imposed on the appellant's co-conspirator and the sentence imposed by the court a quo on the appellant in circumstances where there was not a large gulf between their respective culpability. A wholly suspended sentence for the appellant's girlfriend was, however, inappropriately lenient. (Paragraph [110] at 530j–531b.)

The court took into consideration the appellant's clean record, his personal J circumstances, and the lengthy delay in the completion of the trial, and

2017 (1) SACR p521

came to the conclusion that an appropriate sentence would be one of seven A years' imprisonment of which three years should be suspended on appropriate conditions. (Paragraph [113] at 531g.)

Cases cited

Director of Public Prosecutions, Gauteng v Pistorius 2016 (1) SACR 431 (SCA) (2016 (2) SA 317; [2016] 1 All SA 346; [2015] ZASCA 204): dictum in B para [46] applied

R v Dhlumayo and Another 1948 (2) SA 677 (A): dicta at 705 – 706 applied

R v Nhlovo 1921 AD 485: compared

S v Marx 1989 (1) SA 222 (A): referred to

S v Naidoo and Others 2003 (1) SACR 347 (SCA) ([2002] 4 All SA 710): dictum in para [26] applied C

S v Prinsloo and Others 2016 (2) SACR 25 (SCA) ([2015] ZASCA 207): referred to

S v Rabie 1975 (4) SA 855 (A): dicta at 861D – E applied

S v Roux 1975 (3) SA 190 (A): dicta at 197E – 198C applied.

Case Information

H Scholzel for the appellant. D

ADR Stephen SC for the state.

An appeal against a conviction and sentence in a magistrates' court for conspiracy to murder.

Order

(i)

The appeal against conviction is dismissed. E

(ii)

The appeal against sentence succeeds. The sentence imposed by the court a quo is set aside and replaced with the following:

'The accused is sentenced to a period of seven year's imprisonment of which three years is suspended for five years on condition F that the accused is not found guilty of murder or attempted murder or conspiracy to commit murder or assault with intent to cause grievous bodily harm committed during the period of suspension.'

Judgment

Rogers J (Parker AJ concurring):

Introduction

[1] The appellant was convicted in the court a quo of conspiring with Jo-Ann Neethling to murder Alan Kusevitsky and sentenced to nine years' imprisonment of which two years were suspended. He appeals against conviction and sentence. H

[2] It is doubtful whether conspiracy to commit murder (or other crimes) was by our common law an offence (De Wet & Swanepoel Strafreg 3 ed at 193; Burchell Principles of Criminal Law 4 ed at 529). If the murder was committed or sufficient acts performed to constitute I attempted murder, the conspirators could be convicted of murder or attempted murder as the case might be. But conspiracy simpliciter was not, it seems, a crime. A statutory offence of conspiracy was introduced by s 15(2)(a) of the Riotous Assemblies and Criminal Law Amendment Act 27 of 1914 and is now to be found in s 18(2)(a) of the Riotous Assemblies Act 17 of 1956 which provides in relevant part that any J

2017 (1) SACR p522

Rogers J

A person who conspires with any other person to aid or procure the commission of or to commit any offence, whether at common law or against a statute, shall be guilty of an offence and liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable. This is the statutory offence which the appellant B was alleged to have committed.

[3] If the state proved its case, the appellant could perhaps have been charged with and convicted of attempted murder, since the alleged conspiracy had been implemented to the point of handing over cash to the two persons who were believed to be the hitmen (though they were in fact undercover policemen). See Snyman Criminal Law 6 ed C at 278 and Burchell supra 535 – 36; but cf R v Nhlovo 1921 AD 485. Nothing turns on this.

[4] The alleged conspiracy was said to have come into existence in late 2008. Neethling was arrested on 4 December 2008 and the appellant on 9 December 2008. D Neethling entered into a plea bargain and was the state's main witness against the appellant. The trial only got underway in September 2011. Evidence was completed in March 2015. The magistrate's judgment, delivered in September 2015, is somewhat disjointed, perhaps reflecting the disjointed way in which the trial was conducted. The magistrate, who had the opportunity of observing the witnesses, E disbelieved the appellant's denial of involvement and accepted the essential elements of Neethling's evidence. The magistrate did so while recognising the considerable imperfections in her testimony and the need for caution arising from the fact that she was an accomplice and a single witness. We can only interfere with the magistrate's factual F findings if they are vitiated by material misdirection or shown by the record to be wrong (R v Dhlumayo and Another 1948 (2) SA 677 (A) at 705 – 706; S v Naidoo and Others 2003 (1) SACR 347 (SCA) ([2002] 4 All SA 710) para 26). This approach applies equally to credibility findings and the application of cautionary rules (S v Prinsloo and Others 2016 (2) SACR 25 (SCA) ([2015] ZASCA 207) para 187). Less G deference is required where the question is one of drawing inferences from proved facts (Director of Public Prosecutions, Gauteng v Pistorius 2016 (1) SACR 431 (SCA) (2016 (2) SA 317; [2016] 1 All SA 346; [2015] ZASCA 204) para 46).

[5] Pre-sentencing reports were obtained. Evidence in mitigation and H aggravation was adduced. On 11 March 2016 the magistrate imposed the sentence previously mentioned. On the same day she granted the appellant leave to appeal against conviction and sentence. His bail was extended pending the outcome of the appeal.

Background facts I

[6] In 1998 the appellant established a security business called City Bowl Armed Response (CBAR). The business was conducted through a close corporation. In 2001 Kusevitsky, who had worked with the appellant in the mid-1990s, joined CBAR and took charge of sales and marketing while the appellant focused on the operational side. The arrangement was that J Kusevitsky would obtain a 15% interest in the corporation, increasing to

2017 (1) SACR p523

Rogers J

30% if and when certain targets were met. The business grew and A Kusevitsky became a 30% member though not without some delay.

[7] Over the period 2006 – 2008 Kusevitsky expressed increasing frustration at what he perceived to be the appellant's failure to give him full financial disclosure. He wrote several letters to the appellant in that regard, the most recent of which was in May 2008. B

[8] Neethling, a paramedic, started employment with CBAR in September 2006. A second paramedic, Lianne Bedwell, joined in May 2008. Together they...