S v Sekela (CR 10/2019) [2019] NAHCMD 15 (07 February 2019);

ORDER

(i)         The conviction of theft is set aside and substituted with a conviction of robbery.

(ii)        The sentence imposed by the magistrate is appropriate in the circumstances of the matter, therefore confirmed.

REVIEW JUDGMENT

UNENGU, AJ (USIKU, J concurring):

[1]        This is a review matter submitted pursuant to the provisions of s 302 of the Criminal Procedure Act[1] (the CPA).

[2]        The accused who conducted his own defence was charged with a crime of robbery with aggravating circumstances. He pleaded not guilty to the charge but was convicted of theft after a trial and was sentenced to serve 2 years in jail.

[3]        I addressed a query to the learned magistrate in the following terms to explain why he found the accused guilty of theft, a less serious offence instead of robbery.

‘1.        The accused in the matter is charged with a crime of Robbery (with aggravating circumstances).

2.         Can the learned magistrate provide reasons why the accused was convicted of a less serious crime of theft instead of Robbery?’

[4]        The magistrate responded as follow:

‘My response to the Honourable Judge’s query follows hereunder:

1.         The accused was indeed charged with robbery with aggravating circumstance and was convicted of theft. The evidence from the main witness for the state indicate that the accused just “run and grabbed my bag. I had my bag like this and fell on the floor and scratched my               leg”. This is reflected on page 4 lines 3, 4 and 5 from the bottom.

2.         Further at page 5 line 9 from the bottom the complainant testified “so I stood up and I saw my friend Petro started running and so I started running too. And he told me to stop with a big knife, so I was running to try and get my staff back and I saw him looking at                    me showing a butcher knife, like a really big knife”. When she responded to a question by the prosecutor how far where you from him, the answer was I have no idea and later said about 15 meters estimate. The knife was only produced after the alleged robbery had already                been committed and I am not convinced that the state did prove robbery as such.

3.         I am still convinced that the state failed to prove robbery on the evidence placed before court.’

[5]        I disagree. The State had proved robbery beyond reasonable doubt. The accused himself admitted under oath that he grabbed the bag from the complainant.

[6]        In his plea explanation in terms of s 115 of the CPA, the accused stated the following as his defence for pleading not guilty to the charge brought against him:

‘Court:  You may proceed. Do not start testifying, just in short tell the court as to why you pleaded not guilty to the charge. You will get an opportunity at the appropriate time to present your case well.

Accused:        Your worship, on that Sunday I just grabbed the bag from Ms Paris your Worship I did not threaten her with a knife, I did not use any knife.’

[7]        The defence raised by the accused if asked to be recorded as an admission in terms of s 220 of the CPA, could have constituted a prima facie proof of robbery against him.

Bag-snatching

[8]        If X snatches Y’s handbag out of her hands in a sudden and unexpected movement with no resistance from Y, because it happened unexpectedly, X commits robbery not merely theft. It is sufficient for handbag snatching to amount to robbery if X (in our Example) becomes aware of his intention[2].

[9]        In S v Sithole, Thirion, J while dealing with a similar situation had the following to say:

‘Counsel for the accused argued that handbag snatching would only amount to robbery if the victim, after discovering that an attempt is being made to her bag, were to offer resistance to the attempt with the intention of thwarting the attempt and if the culprit, notwithstanding such resistance, were to continue his efforts to take the bag by force. On this view, presumably, handbag snatching would become robbery if the victim, after having become alerted to the fact that her handbag is being taken or is about to be taken, were to tighten her grip on the bag with the intention of preventing it from being taken and if the culprit were thereafter to continue his efforts to the attempt to take the bag. Counsel further submitted that the violence which the culprit exerts merely to overcome the hold which the possessor of the bag has on the bag while ordinarily carrying it, is not the kind of violence which qualified to turn theft into robbery. In this regard counsel argued that the woman who carries her handbag in her hand or slung over her shoulder does so merely in order to overcome the forces of gravity and to prevent the bag from falling to the ground and not with the intention of withholding it from the would-be handbag snatcher. I cannot agree with counsel’s submission. Ordinarily a woman who carries her handbag with her does so in the exercise of her possessory rights. She intends to exercise control over the handbag to the exclusion of all other persons who do not have a right to the handbag; including handbag snatchers. It is irrelevant that at the moment when the handbag is snatched she may not be consciously contemplating withholding the bag specifically from bag snatcher. Criminal law is concerned mainly with the act and intention of the wrongdoer and not so much with the reaction thereto of this victim[3]. ’

[10]      In conclusion, Thirion, J expressed the view that for handbag snatching to amount to robbery it is sufficient if the culprit uses force in order to overcome the hold which the victim has on the bag of the purpose of ordinary carrying or holding the handbag or that if the culprit intentionally uses force to prevent or forestall resistance which he thinks might be offered to the taking if the victim should actually have offered resistance or that she should have held on to the bag with the specific intention of denying the culprit possession of it.[4]

[11]      In S v Alexander and Another[5] this Court, following South Africa’s Appellate Division held that robbery may also be committed where violence follows after an act of stealing or threat of violence after an act of stealing.

Facts of present matter.

[12]      In the present matter, the complainant when asked by the prosecutor to tell the court what happened, said the following:

‘Can you please tell the court briefly what happened on the 06^th of May 2018? - - - So I went with my two friends Petro and Alien to the township because we wanted to buy souvenirs. So we parked the car and we got off the car and walked maybe 5 meters we were walking to go to the market. And I was talking with my friend Alien and this guy just ran and grabbed my bag, so I had the bag the bag like this. So I fell on the floor I scratched my legs and a bit on my arm’.

[13]      So the victim fell down to the floor which in my view is a testimony that the accused used considerable force to take the bag from the complainant in a surprise manner. The accused knew very well that to get the handbag from the hold of the complainant, he had to use a sudden and unexpected method to grab or snatch it from the grip of the complainant. The complainant would have resisted the taking of her handbag if she was aware of the intention of the accused.

[14]      When pursued by the complainant and her friends to recover the handbag and its contents from him, the accused wielded a big butcher knife to keep them at bay to retain the handbag.

[15]      Therefore, and if regard is had to the evidence of the complainant supported by the testimony of her friend and the statement made by the accused in his plea explanation which he repeated under oath that he grabbed the handbag from the complainant and the principle of law laid down in the authority and cases cited above, I have no doubt that the State proved robbery against the accused beyond a reasonable doubt. The court therefore, ought to have convicted the accused of robbery not of theft as it did.

[16]      As a consequence the conviction of theft has to be corrected by substituting it with a conviction of robbery.

[17]      The sentence of 2 years imposed is appropriate as no record of previous convictions was proved by the State against him. Therefore, it will not be interfered with.

[18]      The following order is hereby made:

(i)         The conviction of theft is set aside and substituted with a conviction of robbery.

(ii)        The sentence imposed by the magistrate is appropriate in the circumstances of the matter, therefore confirmed.

 

 

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E P UNENGU

Acting Judge

 

 

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D N USIKU

Judge