About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2017
>>
[2017] ZAWCHC 155
|
|
S v Heuwel (171092) [2017] ZAWCHC 155; 2018 (2) SACR 436 (WCC) (20 December 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
High
Court Review Ref: 171092
Magistrates Serial
No: 24/2017
20/12/2017
In
the matter between
THE
STATE
v
TYRON
ANTHONY HEUWEL
CORAM: MANTAME J; THULARE AJ
REVIEW
JUDGMENT
THULARE
AJ
[1]
The accused, a 29 year old male pleaded guilty and was convicted of
theft of 7 packets of biltong to the value of R1154-89 from
Pick n
Pay, Cape Gate, Brackenfell in the Magistrates’ Courts for the
district of Kuilsriver. He was sentenced to 18 months
imprisonment.
The matter was submitted before us for review.
[2]
After his rights to legal representation were explained on his first
appearance on 23 August 2017, the accused elected to apply
and was
granted legal representation by Legal Aid South Africa. On 30 August
2017 the attorney, Mrs Harmse, informed the court
that the accused
indicated that he will conduct his own defence. The accused confirmed
that and Mrs Harmse was excused. The accused
thereafter indicated
that he intended to plead guilty.
[3]
The State put the charge, the accused pleaded guilty and after being
questioned, the court was satisfied that he admitted the
allegations
in the charge to which he pleaded guilty, that he was guilty of the
offence and after the State had accepted the plea,
convicted the
accused on his plea of guilty. The matter was postponed to 29
September 2017 for SAP 69’s and sentence.
[4] On the 29
September 2017, the State proved the following previous
convictions against the accused:
a)
On
22 September 2009 he was found guilty of unlawful possession of drugs
and sentenced to a fine of R200-00 or 5 days imprisonment.
b)
On
11 February 2011 he was found guilty of robbery and sentenced to 3
years imprisonment, 2 years of which was suspended for 5 years
on
condition that he is not convicted of robbery committed during the
period of suspension.
c)
On
6 May 2013 he was found guilty of use of other persons property
without their consent in contravention of s 1(1) of the General
Law
Amendment Act, 50 of 1956.
d)
On
27 September 2013 he paid an admission of guilt fine of R300-00 for
theft.
e)
On
25 February 2015 he was convicted of housebreaking with intent to
steal and theft and was sentenced to 12 months imprisonment
of which
8 months imprisonment was suspended for a period of 5 years on
condition that the accused is not convicted of housebreaking
with
intent to commit any offence committed during the period of
suspension.
f)
On
11 September 2015 he was convicted of theft and sentenced to 12
months direct imprisonment.
[5]
In mitigation of sentence, the accused informed the court that he is
29 years old, unmarried and has 3 children aged 11, 9 and
7 years
old, respectively. The children reside with him and he is staying
with his mother. The mother of his children is in Durban.
He works at
Table Bay Cold Storage and earns R800-00 a week. He took the biltong
as he did not have enough money to buy it. He
was sorry. He will
never be seen in court again. In his address, the Prosecutor Mr
Campher simply asked for direct imprisonment.
The accused was
sentenced and his rights on review were explained.
[6]
The question is whether the sentence imposed appears to be in
accordance with justice.
[7] Section 271(4) of the
Criminal Procedure Act, 51 of 1977 (CPA) provides that:
“
(4) If the
accused admits such previous conviction or such previous conviction
is proved against the accused, the court shall take
such conviction
into account when imposing any sentence in respect of the offence of
which the accused has been convicted.”
[8]
The trial court provided no reasons for the sentence. A judgment is
an explanatory analysis of a decision of a judicial officer.
Without
that proper analysis, the pronouncement made is not transparent. In a
judgment by a trier of fact, justice must be visible,
ensuring that
all the issues have been considered and have been carefully weighted
thought out. In clear and precise terms, directly
and boldly, with an
exposition of judicial reasoning, a judgment must speak for itself.
It must say what it means and mean what
it says and it should leave
nobody in doubt about why a decision was arrived at. There is nothing
on record to show that the trial
court applied a properly informed
mind to its duty to sentence the accused.
[9] In
S v M (Centre
for Child Law as Amicus Curiae)
[2007] ZACC 18
;
2008 (3) SA 232
(CC) para 10 it
is said:
“
Sentencing
is innately controversial. However, all the parties to this matter
agreed that the classic
Zinn
triad
is the paradigm from which to proceed when embarking on ‘the
lonely and onerous task’ of passing sentence. According
to the
triad the nature of the crime, the personal circumstances of the
criminal and the interests of the community are the relevant
factors
determinative of an appropriate sentence. In
Banda
Friedman
J explained that:
The elements of the
triad contain an equilibrium and a tension. A court should, when
determining sentence, strive to accomplish
and arrive at a judicious
counterbalance between these elements in order to ensure that one
element is not unduly accentuated at
the expense of and to the
exclusion of the others. This is not merely a formula, nor a judicial
incantation, the mere stating whereof
satisfies the requirements.
What is necessary is that the Court shall consider, and try to
balance evenly, the nature and circumstances
of the offence, the
characteristics of the offender and his circumstances and the impact
of the crime on the community, its welfare
and concern.”
[10]
The trial court cannot be faulted for concluding that the path of the
accused required a severe corrective measure. A prison
sentence can
hardly be avoided. The proximity between the repeat offences is both
pronounced and obtrusive –
S
v Scheepers
2006
(1) SACR 72
(SCA) at para 11. Despite this, in my view, 18 months
direct imprisonment for theft of biltong to the value of R1154-89 is
not
only severe but shocking in its disproportion to the offence. It
is also avoidable, having regard to the other alternatives which
the
trial court did not consider.
[11]
In sentencing, one should guard against treating persons differently
in a way which impairs their fundamental dignity as human
beings, who
are inherently equal in dignity –
Prinsloo
v Van Der Linde and Another
1997
(3) SA 1012
(CC) at para 31. Unlike a first offender, the book of old
sins of an accused is opened for consideration when previous
convictions
are admitted or proven. Depending on the circumstances,
the previous convictions may call for consideration of a severe
sentence.
A severe sentence does not mean a disproportionate
sentence.
[12] In
S v Dodo
[2001] ZACC 16
;
2001
(1) SACR 594
(CC) the court said the following in paragraphs 37 and
38:
“
[37] The
concept of proportionality goes to the heart of the enquiry as to
whether punishment is cruel, inhuman or degrading, particularly
where, as here, it is almost exclusively the length of time for which
an offender is sentenced that is in issue. This was recognised
in
S
v Makwanyane.
Section
12(1) guarantees, amongst others, the right ‘not to be deprived
of freedom … without just cause’. The
‘cause’
justifying penal incarceration and thus the deprivation of the
offender’s freedom, is the offence committed.
‘Offence’,
as used throughout in the present context, consists of all factors
relevant to the nature and seriousness
of the criminal act itself, as
well as all relevant personal and other circumstances relating to the
offender which could have
a bearing on the seriousness of the offence
and the culpability of the offender. In order to justify the
deprivation of an offender’s
freedom it must be shown that it
is reasonably necessary to curb the offence and punish the offender.
Thus the length of punishment
must be proportionate to the offence.
[38] To attempt to
justify any period of penal incarceration, … without enquiring
into the proportionality between the offence
and the period of
imprisonment, is to ignore, if not to deny, that which lies at the
very heart of human dignity.”
[13]
Proportionality between the offence and punishment is part of our law
on sentencing. The previous convictions of an accused
have a place in
sentencing an offender, as required by section 271(4) of the CPA.
They should, however, not be permitted to overwhelm
the triad in
Zinn,
which
remain factors which are relevant to just sentencing. The fact that
one is dealing with a repeat offender with previous convictions
is
not sufficient reason to ignore the duty to balance the relevant
factors and the purpose of punishment. The sense of proportion
should
not be lost and sentences be imposed which, by comparison, are too
harsh –
S
v Smith
2003
(2) SACR 135
(SCA) at para 5.
[14]
The number of times that the offence is being committed does not make
it less petty. It remains petty no matter how often it
is committed –
S
v Stenge
2008
(2) SACR 27
(C) at para 22. In my view, the number of times that an
accused commits a particular offence does not make him or her less
human,
such that he or she is to be discriminated unfairly against
and not enjoy the equal benefit of the law, in particular the legal
principles on sentencing. Furthermore, it cannot be that once the
previous convictions are admitted or proven, the convictions
of old
are resurrected and the previous sentences are extinguished, leaving
the accused open to be sentenced again when he has
already paid his
dues.
[15]
The moral culpability must bear relation to the crime he was
currently convicted of. The length of the period of imprisonment
imposed on the accused bears no relation to the gravity of the
offence for which he has been convicted of. His personal
circumstances
are neutral –
Montsho
v S
(20572/2014)
[2015] ZASCA 187
(27 November 2015) at para 18. The accused was
simply being used as a commodity to send a message to other would-be
offenders.
This denied him of his inherent and infinite worth. The
length of the sentence which has been imposed on the accused is so
disproportionate
that in my view, it denied him his humanity.
[16] In the past as well
as in the current, the accused never enjoyed the benefit of a proper
assessment by probation services,
which is available within
correctional services, and the accompanying correctional supervision
if needs be. The proper evaluation
of the person of the accused, his
environment and his context needs consideration as part of the
strategy to correct his behavior,
which the Commissioner for
Correctional Services may consider at his discretion. In
S v
Scheepers (supra)
at paragraph 10 the court said:
“
[10] The
particular advantage of s 276(1)(i) should always be in the
foreground when the sentencer considers that a custodial sentence
is
essential, but the nature of the offence suggests that an extended
period of incarceration is inappropriate. In such cases,
s 276(1)(i)
achieves the object of a sentence unavoidably entailing imprisonment,
but mitigates it substantially by creating the
prospect of early
release on appropriate conditions under a correctional supervision
programme.”
[17]
The trial court did not consider this alternative option to
sentencing, with its advantages. The failure of the trial court
to
consider other sentencing options appropriate for the accused,
requires of this Court to intervene.
[18]
In the result, I would make the following order:
a)
The
sentence imposed by the trial court is set aside and substituted with
the following:
“
The
accused is sentenced to 12 months imprisonment under
section
276(1)(i)
of the
Criminal Procedure Act 51 of 1977
.”
…………………………………………………
..
DM
THULARE
ACTING
JUDGE OF THE HIGH COURT