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322/87
N v H
MOHAMED JAMIL PETKAR
and
THE STATE
SMALBERGER, JA -
322/87 N v H
IK THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
MOHAMED JAMIL PETKAR Appellant
and
THE STATE Respondent
CORAM: GROSSKOPF, SMALBERGER,
et STEYN, JJA
HEARD: 24 MAY 1988
DELIVERED: 1 JUNE 1988
JUDGMENT
SMALBERGER, JA :-
This is an appeal against sentence.
The appellant, a 37 year old Indian
male, who pleaded
guilty /
2 guilty to the charge against him, was convicted in the
Regiona] Court, sitting at Benoni, of purchasing unwrought gold in contravention
of section 143(1) of the Mining Rights Act, 20 of 1967 (the Act). The gold in
question weighed 1 387,9 grams, and its value was R27
456-37. The appellant
admitted a previous conviction for a similar offence, as well as one for
possession of unwrought gold (a contravention
of section 143(3) of the Act). He
was sentenced to four years imprisonment. In addition the Rl3 000-00 paid by the
appellant for
the gold was declared forfeited to the State. The appellant
appealed against his sentence to the Transvaal Provincial Division. His
appeal
was dismissed. The present appeal is with leave
of this /
3 of this Court.
In the course of the proceedings in terms
of section 112(1)(b) of Act 51 of 1977, which followed on his plea of guilty,
the appellant
gave an account of the events leading to the commission of the
offence. It was to the following effect. Over a period of time he
had become
well acquainted-- even friendly - with a certain Croukamp. The latter was
apparently employed by the East Rand Administration
Board as a law enforcement
officer of sorts. They used to reciprocate favours. The appellant reposed trust
in Croukamp, whom he regarded
as "a man of the law". One morning Croukamp
approached the appellanú and asked him to cash a post-dated cheque
for
R500-00/
4 R500-00. The appellant told him that he did not have the money
to do so. Croukamp then showed the appellant some dagga, and asked
him if he
knew anyone who dealt in dagga. The appellant stated that he did not. He was
then asked by Croukamp if he was interested
in purchasing gold. The appellant
questioned what Croukamp was up to, but did not firmly reject his enquiry. He
appears, however,
to have been reluctant to become involved in any illicit gold
dealing. Croukamp told him "(E)k is in baie probleme en so ek is seker
jy sal my
kan uithelp". The matter was left there. The following day, at lunch time,
Croukamp came to the appellant's house. It is
implicit in the appellant's
narrative of the events that he did so
with /
5 with a view to persuading the appellant to purchase gold. The
appellant remained reluctant. The fact that Croucamp was accompanied
by another
person appears to have heightened his anxiety about becoming involved in any
illegal transaction. Croukamp reassured him,
saying "Look, trust me, I will not
get you into problems." Croukamp told the appellant to meet him at Modderbee
later that afternoon.
The appellant made various excuses to avoid such a
meeting. Croukamp left saying he would telephone the appellant later. He did so
on three separate occasions. On the first and second occasions the appellant
offered reasons - or excuses - for not meeting him,
indica= tive of his
reluctance to do so. On the third occasion
Croukamp /
6 Croukamp said he was coming to the appellant, which he then
did. When he arrived the appellant said to him "Chris, please tell me,
what are
you trying to do?". To this Croukamp replied "Look, I promise you, genuine, you
can take my word for granted, you are in
problems, I am in problems, we will be
able to handle this whole thing together". The appellant, who had R3 000-00
available, then
arranged toborrow a further R10 000-00 from his brother. He
expressed misgivings about the whole matter to Croukamp, but was reassured
by
Croukamp that he could be trusted. The appellant was then shown the gold, after
which he handed over the money in exchange for
the gold. At that stage the
police entered and arrested the appellant,
and /
7 and he realised that he had been the victim of a trap. In
concluding his account of what had happened the appellant stated "I knew
at the
back of my mind, or in front of my mind, that (it) was absolutely illega] and
wrong. But the man promised me, trust, he told
me, trust me, I will not let you
get into problems." The facts set out by the appellant in explanation of his
plea were accepted
by the State. They therefore formed the basis on which an
appropriate sentence had to be determined.
This Court's powers to interfere
with a sentence on appeal are circumscribed. It may only do so if the sentence
is vitiated by (1)
irregularity, (2) misdirection, or (3) is one to which no
reasonable court
could /
8 could have come, in other words, one where there is a striking
disparity between the sentence imposed and that which this Court
considers
appropriate. The main thrust of the argument of Mr Engelbrecht, for the
appellant, was that the appellant's sentence fell into the third category. He
did, however, albeit somewhat tentatively,
suggest that there had been certain
misdirections, and perhaps even an irregularity. The latter, it was contended,
consisted in the
trial magistrate's failure to enquire into the circum= stances
surrounding the appellant's previous conviction for dealing in unwrought
gold. I
shall revert to this point later. The suggested misdirections related to the
magistrate's alleged failure properly to have
regard, when
assessing /
9
assessing an appropriate sentence, (1) to the fact that
he was
dealing with a trap case, and (2) to the order of
forfeiture which he made.
The first of these alleged misdirections is
without substance. It is
apparent from the magistrate's
judgment on sentence that he was fully alive to the fact
that he was
dealing with the case of a trap. The question,
of course, remains whether he
gave due weight to the cir=
cumstances surrounding the commission of the
offence, and
their effect on the appellant's moral culpability,
in
arriving at the sentence he imposed. This is a matter to
uhich I shall
allude again later when considering whether
the sentence was excessive to an
extent that would entitle
interference therewith.
It is /
10 It is common cause that, in the circum= stances of the present
matter, the forfeiture by the appellant of R13 000-00 should have
been taken
into account by the magistrate as a relevant consideration in determining an
appropriate sentence. The State had requested
forfeiture of the money before
sentence, and the magistrate was obviously alive to the fact that he intended
making such an order
when passing sentence. As a known conseguence ex
lege of the conviction it was therefore a matter which he should have
taken into account when assessing sentence. It was contended that
he failed to
do so. I am not convinced that this is so. It is true that nowhere in his
judgment on sentence does
the /
11 che magistrate specifically state that he took the amount the
appellant was made to forfeit into account when assessing the period
of
imprisonment imposed. Non constat that he did not in fact take it into
account. It is likely to have been to the forefront of his mind - indeed, the
imposition of
four years imprisonment and the forfeiture of the Rl3 000-00 were
dealt with in consecutive sentences at the conclusion of the magistrate's
judgment on sentence. Regrettably the somewhat inelegantly drafted notice of
appsal cid not suggest any possible e misdirection on
the magistrate's part in
this regard. The magistrate was therefore never given an opportunity of dealing
with this contention. In
the circumstan= ces I am unpersuaded that the
magistrate misdirected himself by totally
tence. Whether he gave due weight thereto is another
matter /
1 2
matter. That falls to be considered when dealing with
the severity of the
sentence generally.
Nor is there substance in the contention that
the magistrate should have investigated the circumstances
surrounding the appellant's first conviction in order to
arrive at a just sentence. Reliance in this regard was
placed upon the following passage in the judgment in S v
van
Niekerk 1981(3) SA 239 (0) at 243 D - E
"Die enigste vraag wat opval is egter of die streeklanddros die feite wat aanleiding tot
die eerste misdaad gegee het, behoorlik in ag geneem en oorweeg het. In die misdaad-loopbaan van elke persoon is dit van die grootste belang hoe dit gekom het dat hy sy eerste misdaad gepleeg het. Vir doeleindes van 'n gepasre vonnis en sy rehabilitasie daarna is dit van wesenlike belang om dit te ondersoek en sorgvuldig op 'n beskuldigde se
verklaring /
1 3
verklaring daaroor te let. Hy is die beste persoon om daaroor te praat."
The "eerste misdaad" to which reference was
made, was one of two crimes
with which the accused in that
case was charged in a single indictment. It
would
therefore have been appropriate, when assessing sentence,
to have regard to the circumstances giving rise to the
commission of the first offence. But the remarks made
are of limited application - they were obviously never
intenced to relate, as a general principle, to crimes. not
charged in the indictment of which an accused person had
previously been convicted. The present is a totally
different situation from that which pertained in van Kiekerk's
case /
14 case. The contention advanced in the present matter, that a
presiding judicial officer should always make a full enquiry into the
circumstances surrounding an accused person's previous convictions, or at least
the first, or first relevant one, is untenable. In
the normal course a judicial
officer would not be expected to embark on such an enquiry. To require this
would impose a sub= stantial
additional burden on the Courts without, in the
vast majority of cases, any corresponding benefit to the accused. There may well
be occasions on which it becomes relevant to enquire into the circumstances of a
particular previous conviction. But a judicial officer
is normally entitled to
proceed on the premise that the sentence
reflected /
15 reflected in respect of a previous conviction on form SAP
69, or its equivalent, was an appropriate one for the offence committed,
and to
gauge the seriousness or otherwise of the offence committed from the sentence
imposed, and any relevant details appearing
form the said form.
This brings
me to the final, and main, consi= deration, viz. whether the sentence
imposed was excessive in the sense of there being a striking disparity between
such sentence and what this
Court considers to be an appropriate sentence. As
previously mentioned, the appel= lant is not a first offender. He was convicted
in 1982 of a similar offence and ser.tenced to a
fine of Rl 000-00 or
12 months/
16 12 months imprisonment, p]us a further 18 months imprison=
ment. The latter period of imprisonment was suspended for 5 years on
certain
conditions. The present offence was committed during the period of suspension.
At the same time in 1983 he was convicted
and sentenced to a fine of R500-00 or
5 months imprisonment for being in possession of unwrought gold. In terms of
section 153(1)(a)
of the Act the maximum sentence for a second contravention of
secticn 143(1) of the Act is a fine not exceedinc R5 000-00 or imprisonment
not
exceeding 10 years, or both such fine and imprisonment. The sentence imposed was
therefore
It is true that Croukamp's initial proposal of an illicit gold transaction did not meet with an immediare
rebuff /
17 rebuff from the appellant. This suggests that it aroused the
appellant's interest to some extent. However, the appellant was clearly
reluctant to become involved in any illegal transaction. This reluctance on his
part was gradually broken down by the persistence
of Croukamp -a man the
appellant regarded as a friend, and in whom he reposed great trust - in the
sense that he did not believe
that Croukamp would get him into trouble. In
persisting with his attempts to persuade the appellant to purchase gold, and at
the
same time tempting him to do so, Croukamp was preying on a weakness in the
appellant's make-up to which he was likely, in time, to
succumb. In acting as he
did Croukamo abused his friendship with the appellant,
and /
18
and the latter"s trust in him. He in fact took unfair
advantage of
their relationship in involving the appellant
in the commission of the
offence.
Muoh has been said in the past about the use
of traps and the many
undesirable features of the system.
I do not propose to review the
authorities on the point,
and what has been stated in them. It will suffice
for
the purooses of the present matter to refer to extracts
from two
authorities. In R v Clever 1967(4) SA 256 (R A D)
at 257 H QUENET, JP
stated:
"In the case of persons who have previously been convicted, trapping has the undesirable feature that it puts temptation in the way of those least able to resist. In any case, such persons might not have offended again but for the fact that a trap was used."
and /
1 9
and later he added (at 258 E)
"In cases where there is general recognition of the propriety of employing the system the greatest care should be taken to see that the trap is a fair one. Verbal persuasion should not be used".
In S v von Pittius and Another 1973(3) SA 814
(C) it appeared that one of the appellants had been impor=
tuned three
times by the traps before he agreed to sell
them wine illegally. With regard
thereto CORBETT, J,
said the following (at 819 A - C):-
"The artificial propagation of crime by means of police traps has 'many distate= ful features' (see R v Clever, 1967(4) SA 256 (R, AD) and the authorities cited therein) and its justification is based partly upon the belief on the part of the authorities that the accused has been engaged in criminal conduct of a similar
nature /
20
nature in the past and is likely to continue to do so unless checked. The fact that an accused has to be importuned several times bcfore agreeing to the criminal conduct proposed by the trap hardly indicates a general predisposition upon his part to commit this type of crime and this is, generally speaking, not an appropriate case for an artificially generated offence. Moreover, this kind of approach offends against the belief that the trap should be a fair one and that in general verbal persua= sions should be avoided (see R v Clever, supra at p 258)."
I am in full agreement with the sentiments
expressed in the abovequoted
passages. In the present
instance the trap was not a fair one. Verbal persuasion -
or at least
something akin to it - was used. An apparent
weakness was exploited. A
friendship and situation of
trust was abused. True, the appellant was not an
entirely
unwilling /
21 unwilling participant in the offence. He believed that he
would ultimately "get away with it" - a belief no doubt shared by most
people
who embark on criminal conduct of this kind. But the fact remains that the
appellant did initially offer resistance, and this
resistance was largely broken
down by unfair methods. These considerations in my view substantially reduce the
appellant's moral
culpabi= lity. Had he been a first offender he would have been
entitled to have been dealt with fairly leniently - a totally suspended
sentence
may not have been out of the question in the circumstances. When this situation
is taken in conjunction with the appellant's
previous convic= tions, the steep
progression from the previous sentence to
the /
22
the present is in my view not justified. While, generally speaking,
related second and subsequent convictions call for increased sentences
on each
occasion, such increases should be made with due regard to the circumstances of
the case, and be kept within reasonable limits.
In determining an appropriate
sentence in the present matter due regard must also be had to the fact that the
appellant has had to
forfeit Rl3 000-00, and faces the prospect of the suspended
portion of his previous sentence being put into operation. While a sentence
of
imprisonment cannot be avoided having regard to the nature of the appellant's
offence, the value of the go]d involved and the
fact that this is a second
offence committed while the appellant had
a suspended /
23 a suspended sentence hanging over his head, on an overall conspectus of the evidence, and with due regard to the considerations I have mentioned, an appropriate sentence in my view would have been one of 2 years imprisonment. The difference between this sentence and that imposed is sufficiently striking to justify inter= ference with the latter.
The appeal succeeds. The sentence of 4 years imprisonment is reduced to one of 2 years imprisonment.
J W SMALBERGER JUDGE OF APPEAL
GROSSKOPF, JA ) STEYN, JA )CONCUR
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