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[2021] ZAWCHC 142
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Adams and Another v S (A174/2021) [2021] ZAWCHC 142 (18 June 2021)
In
the High Court of South Africa
(Western
Cape Division, Cape Town)
Case
No: A174/2021
Magistrates
Serial number: 22/2021
In
the matter
between:
ASHRAF
ADAMS
ACCUSED
1
MOEGAMAT
ADAMS
ACCUSED
2
and
THE
STATE
JUDGMENT
Delivered 18 June 2021
LEKHULENI
AJ
INTRODUCTION
[1]
This matter comes before this court by way of automatic review in
terms of the provisions
of section 302 of the Criminal Procedure Act
51 of 1977 (“
the CPA”
). The two accused who were
not legally represented after they elected to conduct their own
defences were convicted in the Magistrates
Court, Cape Town on 14
April 2021 on a charge of Theft out of a motor vehicle and were each
sentenced to 18 months’ imprisonment
in terms of section
276(1)(b) of the CPA.
E
ssentially,
this court is enjoined to consider whether the proceedings before the
trial magistrate appear to be in accordance with
justice.
[2]
The allegations against the accused were that on 11 August 2020 and
at or near Victoria
Road in Woodstock in the district of Cape Town,
the accused did unlawfully and intentionally steal four car mats,
four wheel caps,
two knives and a car Jack out of a parked Toyota
Etios, the property in the lawful possession of Christopher
Kiebineyou. On 16
April 2021, the charge was put to both accused in
terms of section 105 of the CPA and both accused pleaded guilty to
the charge.
The court then invoked the provisions of section
112(1)(b) of the CPA. Upon questioning by the court, both accused
admitted all
the elements of the charge and the trial magistrate
accordingly convicted the accused as charged.
[3]
The State proceeded to prove previous convictions against both
accused. Accused 1
had two previous convictions of theft which were
committed in 2009 and 2011 respectively. He also has two previous
convictions
of possession of dagga committed in 2012 and 2016. He was
given a wholly suspended sentence in respect of the 2009 theft charge
and he was sentenced to two years’ imprisonment in terms of
section 276(1) of the CPA in respect of the 2011 theft charge.
He was
fined R300 or 30 days imprisonment in respect of the 2012 conviction
on the possession of drugs and R400 or 5 days in respect
of the 2016
offence. Accused 2 had the following previous convictions: theft
committed in 2012 and was sentenced to 2 years’
imprisonment
which was wholly suspended; theft committed on 30 October 2013 and
was sentenced to 12 months’ imprisonment
which was wholly
suspended for three years on normal conditions; and theft committed
on 10 November 2013 he was sentenced to 18
months’ imprisonment
in terms of section 276(1)(I) of the CPA. He was also convicted of
trespassing in 2014 and was sentenced
to a fine. In 2015 he was
sentenced to 18 months’ imprisonment which was wholly suspended
for three years for possession
of housebreaking implement and in 2020
he was sentenced to R500 or 30 days’ imprisonment for
possession of dependence producing
substance.
[4]
In mitigation of sentence, accused 1 informed the court that he is 38
years old. Has
completed standard 5 at school. He left school and
went to work as no one at home was employed. He did odd jobs
including cleaning
the yard. He committed this offence in order to
get money to feed his wife and his child. He implored the court to
impose a suspended
sentence. Accused 2 informed the court that
he completed standard 2 at school. He left school to start
collecting scrap.
He also did odd jobs of cleaning yards. He
committed the offence in order to get money. He also pleaded for
lenience from the court.
[5]
The prosecutor argued in aggravation of sentence that the offence is
prevalent and
that the only mitigating factor in this matter is that
the accused pleaded guilty. He argued that the accused are not first
offenders
and that their previous convictions have not deterred them.
He appealed to the court to impose a sentence of direct imprisonment
in terms of section 276(1) (I) of the CPA in respect of both accused.
After listening to arguments from both sides, the magistrate
subsequently sentenced each accused to 18 months’ direct
imprisonment in terms of section 276(1)(b) of the CPA without giving
reasons for her judgment and explained their rights of appeal and
review.
FACTUAL
MATRIX
[6]
The facts of this case gleaned from the accused’s response to
the questions
posed to them by the court are that on the day alleged
in the charge sheet, both accused came from Woodlands Street and they
saw
the complainant’s vehicle that was not locked. They opened
the door and removed the items mentioned in the charge sheet from
the
vehicle. Both accused helped each other to remove these items from
the vehicle. Accused 1 placed these items in a black bag
and took
them to the place where he sleeps. Later, police came and arrested
him and seized the stolen items.
[7]
Upon perusing the record, I had no difficulty in respect of the
conviction to conclude
that it was in accordance with justice. Both
accused admitted all the elements of the charge. However, in respect
of the sentence
imposed, I raised a query in terms of section
304(2)(a) of the CPA and requested the presiding magistrate to
provide reasons for
the sentence imposed as I held a view that the
sentence imposed was so harsh and evoked a sense of shock. In her
reasons for judgment,
the magistrate explained that theft out of a
motor vehicle is a highly prevalent offence in her jurisdiction and
cases of this
nature continue to be enrolled on a daily basis. She
also alluded to the fact that while a reading of the allegations in
the charge
sheet especially with regards to the items taken and the
value thereof might on face value suggest that this offence is not of
a serious nature, in her view to take such a superficial view is
misguided. She concluded that the eighteen months’ imprisonment
imposed in respect of both accused is not harsh and in her view is in
accordance with justice.
APPLICABLE
LEGAL PRINCIPLES AND ANALYSIS
[8]
A court sitting on appeal or on review cannot interfere with the
discretionary function
of the lower court unless the sentence imposed
is unjust or unless there has been a gross misdirection. In this
case, the court
did not give reasons of its sentence when it imposed
the 18 months’ imprisonment in respect of each accused. As it
stands,
the two accused are in prison and they do not know the
reasons why a sentence of 18 months imprisonment was passed.
[9]
The magistrate only gave her reasons of judgment on sentence when she
was asked by
this court in terms of section 304(2) of the CPA.
In
S v Heuwel
2018 (2) SACR 436
(WCC) at para 8 this court
stated as follows:
“
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…. 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.”
[10]
From the reading of her reasons of judgment in terms of section
304(2)(a) of the CPA, it is apparent
that the trial court over
accentuated the seriousness of the offence and the interest of
society at the expense of the personal
circumstances of the accused.
T
he general approach that
courts are expected to take when determining an appropriate sentence
remains the approach established in
S
v Zinn
1969 (2) SA
537
(A) namely, that the sentence is determined with ref
erence
to the triad consisting of the crime, the offender and the interests
of society. A sentencing court should always be preoccupied
in
finding a balance among all the different interests involved.
Sentencing therefore, is
about achieving the right balance between the triad - See
S
v
Zinn (supra)
at
540 G-H. In
S v
Banda
1991 (2)
SA 352
(BG) at 355A Friedman J, as he then was, noted with admirable
brevity 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.’
[11]
In this case, the value of the stolen items was not proven or alleged
in the charge sheet.
However, it cannot be disputed that in
monetary terms they were of paltry value. More importantly, the said
items were recovered
before the accused could liquidate them. In her
reasons for judgment the magistrate noted that the seriousness or
otherwise of
an accused persons’ conduct lies not only in the
nature and value of the items taken but in the totality of the
circumstances
surrounding the commission of the offence. I agree with
her observation however, that does not mean that in cases where the
stolen
items are of little value the court should lose sight of that
fact. The court must consider the surrounding circumstances of each
case in totality and not on a piecemeal basis. The fact that the
items were recovered surely should have weighed in favour of the
accused. The complainant has not suffered any financial prejudice. In
the converse, if these items were not recovered, this should
have
aggravated the offence.
[12]
It must be stressed that a sentence imposed must be proportional to
the crime committed. In the
same way the length of punishment must be
proportional to the offence committed. In terms of section 12(1)(a)
of the Constitution
a person may not to be deprived of freedom
without a just cause. The deprivation of liberty for an extended
period of time must
be proportional to the offence committed and must
be justified by having regard to all the personal circumstances of an
offender
and other factors which could have a bearing on the
seriousness of the offence and the culpability of the offender. This
means
that the length of punishment must be proportionate to the
offence - See Terblanche ‘
Twenty Years of
Constitutional Court Judgments: What Lessons are there about
Sentencing?’
PER / PELJ
2017 (20) at 15.
[13]
In
S v Smith
2003 (2) SACR 135
(SCA) at para 5 the court noted
that the sense of proportion should not be lost and sentences be
imposed which, by comparison,
are too harsh. Meanwhile in
S v Dodo
2001 1 SACR 594
(CC) at para 37, the court explained the importance
of proportionality as follows:
“
The concept of
proportionality
goes to the heart of the inquiry 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.” (the emphasis is mine)
It
seems to me the magistrate in this case was influenced by the
previous convictions of the accused in imposing this harsh sentence.
Section 271(4) of the CPA provides that ‘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’. Depending on the circumstances, the previous
convictions may call for consideration of a severe sentence.
However,
a severe sentence does not mean a disproportionate sentence. In my
view, the previous conviction of the accused must not
enjoy
pre-eminence over the triad which circumscribes factors which are
relevant to a just sentencing. The two accused have served
the
sentences in respect of their previous convictions. In
S v Heuwel
(supra)
at para 13, the court said that the fact that one is
dealing with a repeat offender with previous convictions is not a
sufficient
reason to ignore the duty to balance the relevant factors
and the purpose of punishment.
[14]
In this case, I repeat, the complainant did not suffer any prejudice.
The accused were found
in possession of the stolen items and the
items were obviously returned to their owner. I appreciate the fact
that this is a serious
offence and that it is prevalent in the
jurisdiction of the court as stated by the magistrate in her reasons
for judgment however
,
this is not the only consideration of the triad. It is trite that
courts must not overemphasise one factor of the triad against
the
other. What is expected is for the court to
act
judiciously by taking into account all of the relevant factors and
competing interests involved, so as to arrive at a sentence
which
strikes an equilibrium of the triad.
In
S
v Kruger
2012
(1) SACR 369
(SCA)
para 11
the
court stated that ‘punishing a convicted person should not be
likened to taking revenge. To this end, I agree with the
views
expressed by the court in
S
v Pillay
2018
(2) SACR 192
(KZD), where the court stated that ‘
every
sentence that must be imposed must be tempered with a degree of mercy
no matter the crime’.
[15]
More importantly, w
hilst
it is accepted that it is in the interests of justice that crime
should be punished, however, punishment that is excessive
as is the
case in this matter, serves neither the interests of justice nor
those of society.
The Supreme
Court of Appeal in
S
v Scott-Crossley
2008
(1) SACR 223
(SCA) at para 35 stated as follows:
“
Plainly
any sentence imposed must have deterrent and retributive force. But
of course
one must not
sacrifice an accused person on the altar of deterrence
.
Whilst deterrence and retribution are legitimate elements of
punishments, they are not the only ones, or for that matter, even
the
overriding ones.” (the emphasis is mine)
[16]
I am of the view that the sentence of 18 months’ imprisonment
is harsh and disproportionate
to the offence committed by the
accused. The prosecutor in the court a quo argued that the court
should consider the triad as pronounced
in
Zinn (supra)
and
implored the court to impose a sentence of imprisonment in terms of
section 276(1)(I) of the CPA. Notwithstanding, the court
imposed a
sentence of direct imprisonment for a period of eighteen months
imprisonment without giving reasons for her judgment.
In my
considered view, this was a misdirection which demands interference
by this court. It is further my considered view that
the sentence
imposed is not at all in accordance with justice and has to be set
aside.
[19]
I consider it necessary to reconsider the sentence imposed. In my
view, it is prudent not to
remit the matter to the magistrate as all
the relevant facts are on record. The remittance of the matter to the
court
a quo
will unnecessarily delay the finalisation of this
matter. I have considered the personal circumstance of the accused,
their previous
convictions as well as arguments from both sides as
recorded and I am of the view that a sentence of eighteen (18) months
imprisonment
half of which is suspended for a period of three years
on conditions that the accused are not found guilty of theft or
attempted
theft committed during the period of suspension is
appropriate in the circumstances.
ORDER
[20]
In the result, I propose the following order:
20.1
The sentence of eighteen (18) months imprisonment imposed by the
court
a quo
on the two accused is set aside and replaced with
the following sentence:
20.1.1 The accused 1
and 2 are each sentenced to eighteen (18) months imprisonment half of
which is suspended for a period of three
years on condition that the
accused persons are not found guilty of theft or attempted theft
committed during the period of suspension.
20.1.2 In terms of
section 282 of the CPA the sentence is antedated to 16 April 2021.
LEKHULENI
AJ
ACTING
JUDGE OF THE HIGH COURT
I
agree and it is so ordered
KUSEVITSKY
J
JUDGE
OF THE HIGH COURT