POSSESSION OF FIRE ARM – WHAT CONSTITUTES

S v RAMOBA 2017 (2) SACR 353 (SCA)

 

Arms and ammunition — Unlawful possession of firearm in contravention of s 3 of Firearms Control Act 60 of 2000 — Joint possession — Proof of — Firearm found between front seats of robbers’ getaway vehicle — No indication of who put firearm there — Possession not proven.

Sentence — Imprisonment — Duration of — Lengthy period of imprisonment — Effective term of 52 years’ imprisonment — Sentence possibly surpassing lifespan of accused — Sentence inappropriate and set aside.

 

The appellant was one of a gang of three who robbed a cash-in-transit vehicle. Two of the assailants carried rifles during the attack and the third a handgun. Immediately after the robbery they attempted to rob a man of his vehicle, but without success. They later succeeded in robbing another man of his vehicle in which they made their getaway, their car having stalled. All three were later observed walking in a road towards a farmhouse, the men in front and at the back carrying rifles, and the man in the middle carrying the boxes containing the money.

The appellant and another were convicted in a regional court of various counts, including robbery with aggravating circumstances and the unlawful possession of firearms and ammunition. They were sentenced to an effective term of 52 years’ imprisonment.

After an unsuccessful appeal to the High Court, the appellant was given special leave to appeal against certain of the convictions, as well as the cumulative effect of the sentences. One of the counts was in respect of the possession of a semi-automatic 9 mm pistol which was subsequently found to have been a weapon taken from one of the security guards in the robbery. It was discovered between the front seats of the getaway car. The court had found the appellant and his co-accused guilty of this offence on their joint possession of the firearm. On appeal —

Held, that there was no evidence showing who had put the pistol inside the getaway car, and importantly, whether the appellant was aware of its presence. Accordingly, there were no facts from which it could be inferred that the appellant had the intention to possess the pistol through the actual detentor thereof, who was in any event unknown, and whether the person who put it inside the vehicle intended holding it on behalf of the group, including the appellant. In these circumstances that conviction was unsustainable and had to be set aside. (See [15].)

Held, further, as to sentence, that an effective term of 52 years’ imprisonment was shockingly inappropriate and warranted interference by the court. The appellant was 33 years old at the time of sentencing, which meant that he would be 85 years old when he completed his sentence. It was generally accepted that a sentence designed to surpass the natural lifespan of an offender, such as happened in the present case, ought not to be imposed. (See [23] – [24].) The court substituted the sentences in such a way that the effective term would be 28 years’ imprisonment.

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