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2021
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[2021] ZAWCHC 175
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Arendse v S (A157/2021) [2021] ZAWCHC 175 (30 August 2021)
In
the High Court of South Africa
(Western
Cape Division, Cape Town)
Case
Number: A157/2021
In
the matter between:
HENRICO
ARENDSE Appellant
And
THE
STATE
Respondent
Bench:
Savage, J and Lekhuleni, AJ.
Heard:
27 August 2021
Delivered:
30 August 2021
This
judgment was handed down electronically by circulation to the
parties' representatives via email and release to SAFLII. The
date
and time for hand-down is deemed to be 30 AUGUST 2021 at
10h00.
JUDGMENT
LEKHULENI
AJ
INTRODUCTION
[1]
This is an appeal against sentence. The appellant was convicted by
the Paarl Magistrate
Court on two counts of Theft out of a motor
vehicle. In respect of each count, the appellant was sentenced to 36
months’
imprisonment half of which was suspended for five years
on condition the appellant was not found guilty of theft or attempted
theft
committed during the period of suspension. The appellant was
effectively sentenced to 36 months’ direct imprisonment in
respect
of both counts. Aggrieved by this decision, the appellant
applied for leave to appeal his sentence in term of section 309B of
the
Criminal Procedure Act 51 of 1977 (“
the Act”
)
and his application was refused by the trial court. Thereupon the
appellant petitioned the Judge President of this division in
terms of
section 309C(2)(a)(iii) the CPA. Pursuant thereto, leave to appeal
against sentence was granted by this court. The appellant
was
released on bail pending the outcome of the appeal.
THE
FACTUAL MATRIX
[2]
The State preferred two counts of theft out of a vehicle against the
appellant. The
allegations against the appellant were that on 20
October 2018 he unlawfully and intentionally stole two car radios
from two different
vehicles of the complainant. As a result, two
counts of theft out of a motor vehicle were levelled against him.
Each radio was
valued at R1300. The appellant who was legally
represented throughout the trial, pleaded guilty to both counts. A
statement in
terms of section 112(2) of the CPA was prepared and
submitted into the record.
[3]
The facts of the matter gleaned from his 112(2) statement were that
on the day in
question the appellant went into the complainant’s
property. He jumped over the fence and opened the doors of the two
vehicles
of the complainant. He proceeded to remove the car radios of
the two vehicles and left with them. He sold the radios and was later
arrested by the police. One of the radios was recovered by the police
and the other radio was not. After considering the statement
and
admissions made by the appellant in his 112(2) statement, the trial
court subsequently convicted the appellant on both counts.
After
listening to arguments in mitigation and aggravation of sentence, the
court below sentenced the appellant to 36 months’
imprisonment
in respect of each count half of which was suspended for five months
on normal conditions.
GROUNDS
OF APPEAL
[4]
The appellant’s grounds of appeal can succinctly be summarized
as follows:
1.
The
appellant contends that the magistrate erred in over-emphasising the
prevalence of the type of offence and overlooked the personal
circumstance of the appellant.
2.
That
the magistrate erred in sacrificing the appellant on the altar of
deterrence to pay for and deter all of the community’s
related
crimes.
3.
That
the magistrate erred by not giving proper and through consideration
to the fact that the appellant was relatively young and
was a first
offender.
4.
That
the magistrate erred by not meticulously balancing the aggravating
factors placed before her by the state with the mitigating
factors
placed on record by the defence.
5.
That
the magistrate erred by not giving proper and thorough consideration
to the element of mercy especially in the light of the
appellant
being a young offender.
DISCUSSION
[5]
In order to curb the spike of Covid-19 infections and in concurrence
with the legal
representatives of both parties we invoked the
provisions of
section 19(a)
of the
Superior Courts Act 10 of 2013
to
dispose of the appeal on the written submissions of the parties
without the hearing of oral argument. To this end, both parties
filed
comprehensive heads of arguments and I am indebted to them.
[6]
It is a fundamental principle of our law that a court of appeal will
not lightly i
nterfere
with an imposed sentence. Recently, in
S
v McLean
(A112/21)
[2021] ZAWCHC 158
(12 August 2021) at para 15, this court restated
the
trite
principle of our law which has repeatedly been stressed by our courts
that the imposition of sentence falls pre-eminently
within the
discretion of a trial court. The court also emphasised the fact that
the powers of the court of appeal are relatively
limited to those
instances where the sentence is vitiated by misdirection or where the
sentence imposed is startlingly inappropriate
and induces a sense of
shock or where there is a striking disparity between the sentence
imposed, and that which a court of appeal
would impose. The Supreme
Court of Appeal
S
v
Jimenez
2003
1 SACR 507
(SCA) para 6, found that
even
where a sentence does not seem shockingly inappropriate, a Court
on appeal is entitled to interfere, or at least to consider
the
sentence afresh, if there has been a material misdirection in the
exercise of the sentencing discretion. (See, also
S
v Petkar
1988
(3) SA 571
(A);
S
v Siebert
1998
(1) SACR 554 (SCA)
).
[7]
The record of the trial court reveals that the appellant was 25 years
old. He lives
with his mother and was working as a farm worker. He
earned R750 per week. The court was informed that the appellant used
his income
to support his mother. The appellant went as far as grade
7 at school. He was a first offender and had no previous convictions
and had no pending cases against him. It was also argued on behalf of
the appellant in the court a qou that the appellant helped
the police
in recovering one of the stolen radios and that this should count in
the appellant’s favour. The court was asked
to blend its
sentence with a measure of mercy and to impose a wholly suspended
sentence. The State prayed for a custodial sentence
and implored the
court to send a message to the community that this type of offences
will not be accepted by court.
[8]
The imposition of sentence is not a mechanical process in which
predetermined sentences
are imposed for specific crimes. It is a
nuanced process in which the court is required to weigh and balance a
variety of factors
to determine a measure of the moral, as opposed to
legal, blameworthiness of an accused. That measure is achieved by a
consideration,
and an appropriate balancing, of what the well-known
case of
S v Zinn
1969 (2) SA 537
(A), at 540G-H described as a
‘triad’ consisting of the crime, the offender and the
interests of society’ (see
S v Clayton Arendz and Others,
Case number CC96/09 (01 March 2010) (ECH). The
Zinn
triad
is applicable in all sentencing proceedings and these factors should
be considered in a balanced manner.
[9]
In my view, the cumulative effect of the sentence imposed by the
court below is so
disproportionate and evokes a sentence of shock.
The court below over accentuated the seriousness of the offence and
overlooked
the personal circumstances of the appellant. The judgment
of the court a quo on sentence
deals
solely with the interests of society and the seriousness of the
offence and nowhere can this court find where the trial court
had
taken the personal circumstances of appellant into consideration save
for stating the age of the appellant and that he
pleaded
guilty. More importantly, the trial court confused the personal
circumstances of the appellant which were placed before
her by her
attorney. She stated that the appellant was being maintained by his
mother and that there was no need for him to commit
this offence,
when in truth, it was the appellant who was maintaining his mother.
From the reading of the record, it is very clear
that this fact was
not at all considered by the trial court.
[10]
In her judgment on the application for leave to appeal, the court a
quo noted that it did not
impose a maximum term of imprisonment and
that this is evident that she showed mercy by suspending half of the
sentence. The trial
court also noted that since it started to impose
these stiff sentences in its court, the number of new cases in her
court, have
declined tremendously which is clear nexus between the
appropriateness of the sentences and this type of offences.
[11]
It may be so that pursuant to the sentences imposed by the trial
court the number of new cases
have dwindled. However, it must be
stressed that each case must be dealt with according to its own
merits. It must be emphasised
that a one size fits all approach does
not at all find application in sentencing. Each case must be dealt
with according to its
own merits. In this regard, I agree with the
views expressed by Terblanche SS:
‘
Twenty
Years of Constitutional Court Judgments: What Lessons are there about
Sentencing?
PER
/ PELJ
2017(20) at p.26,
that
courts have to carefully individualise their sentences by considering
all the factors relevant to the matter, in particular
those
mitigating or aggravating the crime and those that affect the
culpability of the offender. (See
S v Maake
2011 (1) SACR 263
(SCA) paras 19-20). The
learned author notes that courts are endowed with a wide discretion,
because every case is unique and the
sentence has to cater for each
important unique feature of the case.
[12]
This principle enunciated above was supported by the Supreme Court of
Appeal in
S v Jimines
(
supra
at para 6), where the
court said that ‘
while it may be useful
to have regard to sentences imposed in other similar cases, each
offender is different, and the circumstances
of each crime vary.
Other sentences imposed can never be regarded as anything more than
guides taken into account together
with other factors in the exercise
of the judicial discretion in sentencing.’
In my view,
the court a quo erred in the exercise of its discretion. It is
further my considered view that the trial court adopted
a skewed
approach in sentencing and committed a misdirection that warrants an
intervention by this court.
[13]
It must be stressed that no one should be deprived of his freedom
without a just cause. T
he
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 factors of the triad.
Section
12(1)(e)
of our Constitution guarantees the right not
to
be treated or punished in a cruel, inhuman or degrading way.
In my considered view, a disproportionate sentence that fail to
strike a balance on the triad but instead, gives prominence to
one
factor of the triad over the other, is unconstitutional as it offends
against section 12(1)(e) of the Constitution.
[14]
The court a quo gave a long judgment on the application for leave to
appeal without making a
ruling whether or not another court may come
to a different conclusion to the one it reached. What I find
concerning in that judgment
is that the court lamented the fact that
it remained in the dark as to how the appellant knew that the
vehicles were not locked;
how the appellant knew when the premises
were not guarded and on how he knew how to gain entry to the
complainant’s business
premises. The trial court also noted
that it was in the dark as to how did it come that the appellant
decided to assist the police.
[15]
It must be stressed that it was the duty of the court below to
question the appellant to clarify
this information during the plea
proceedings. A
lthough the appellant
was legally represented the trial court still had a duty to ensure
that all the relevant evidence is available
when it sentenced the
appellant.
Section
112(2) of the CPA makes it abundantly clear that the court may in its
discretion put any question to the accused in order
to clarify any
matter raised in the statement. Subsection 3 of the same section
echoes the same sentiments. The relevant parts
of section 112(3)
provides that there is
nothing in
this section that shall prevent the court from hearing evidence,
including evidence or a statement by or on behalf of
the accused,
with regard to sentence, or from questioning the accused on any
aspect of the case for the purposes of determining
an appropriate
sentence.
[16]
On a conspectus of all the evidence placed before court, I am of the
view that the court a quo
adopted a skewed approach on sentence.
Indeed the magistrate overemphasised the prevalence of the offence in
her jurisdiction and
failed to individualise and evaluate the
appellant before her. From the reading of her judgment on sentence
and all the analogies
that she makes, it seems to me the magistrate
approached sentencing in a spirit of anger. This in my view, clouded
her mind in
the exercise of her judicial discretions. I consider the
finding of Kotze AJA as he then was, in
S v Rabie
1975 (4) SA
875
(A) at p. 866, apposite in this matter. In a concurring judgment
the judge said:
‘
A judicial officer should
not approach punishment in a spirit of anger because, being human,
that will make it difficult for him
to achieve that delicate balance
between the crime, the criminal and the interests of society which
his task
and the objects of punishment
demand of him. Nor should he strive after severity; nor, on the other
hand, surrender to misplaced
pity. While not flinching from firmness,
where firmness is called for, he should approach his task with a
humane and compassionate
understanding of human frailties and the
pressures of society which contribute to criminality.’
[17]
It is appreciated that theft out of a motor vehicle is a serious
offence
however
,
this is not the only consideration of the triad.
It
was incumbent upon the trial court to consider the personal
circumstances of the accused and the interest of society and to
impose a sentence that strikes an equilibrium in the three competing
factors.
[18]
As discussed above, the appellant in this case was a first offender.
He was 25 years old. He
was remorseful for what he did. He pleaded
guilty to the charge and he did not waist the court’s time. He
cooperated with
the police in their investigation and this led to the
recovery of one of the stolen radios. He was the bread winner at home
and
supporting his mother. He was employed as a farm worker and
earning a salary R750 per week. In my view, a collective
consideration
of all these factors should have persuaded the trial
court to impose a wholly suspended sentence on both counts.
[19]
The cumulative effect of the sentence imposed by the trial court is
startlingly disproportionate
and evokes a sense of shock. In my view,
it is prudent not to remit the matter to the trial court as all the
relevant facts are
on record. This matter has been outstanding since
2018 and I want to believe that the appellant is yearning for the
finalisation
of the matter. His first appearance in court was on the
24 October 2018. It is almost three years that this matter has been
pending
in the courts. The remittance of this matter to the court a
quo will unnecessarily further delay the finalisation of this case.
[20]
I have considered the personal circumstance of the appellant. I have
considered the arguments
on appeal from both the State and from the
appellant. I have also considered the fact that the appellant is a
first offender as
well as arguments from both sides presented before
the trial court as recorded and I am of the view that a sentence of
eighteen
(18) months’ imprisonment which is wholly suspended in
respect of both counts is appropriate in the circumstances.
ORDER
[21]
In the result, I propose the following order:
21.1
The two sentences in respect of count 1 and 2 respectively of thirty
six months imprisonment of which eighteen
months is suspended for a
period of five years on condition the accused is not found guilty of
theft, attempted theft, contravening
section 36 or 37 of Act 62 of
1955 committed during the period of suspension are hereby set aside
and replaced with the following
sentence:
21.1.1 The accused
is hereby sentenced to eight (18) months’ imprisonment which is
wholly suspended for a period of five years
on condition the accused
is not found guilty of theft, attempted theft, contravening sections
36 or 37 of the General Law Amendment
Act 62 of 1955 committed during
the period of suspension. Both counts are taken together for the
purposes of sentence.
LEKHULENI AJ
WESTERN CAPE HIGH
COURT
I
agree, and it is so ordered
SAVAGE J
WESTERN CAPE HIGH
COURT