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[2014] ZAGPJHC 165
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Da Silva v S (A77/2014) [2014] ZAGPJHC 165 (14 August 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE GAUTENG
HIGH COURT
LOCAL DIVISION
JOHANNESBURG
CASE
NO: A77/2014
DATE:
14 AUGUST 2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between
EDWARD
DA
SILVA
.........................................................................................................
APPELLANT
and
THE
STATE
....................................................................................................................
RESPONDENT
J
U D G M E N T
RATSHIBVUMO
AJ:
1.
The appellant was convicted in the
Germiston Magistrate Court following a guilty plea on a charge of
theft. Upon realising that
the appellant had a long list of previous
convictions, the learned magistrate stopped the proceedings and
committed the appellant
for sentence by the Regional Court in
Germiston. He was subsequently sentenced to six years imprisonment on
06 August 2013. He
was also declared unfit to possess a firearm. The
appeal is against sentence only and is with leave of the court
a
quo
.
2.
Upon questioning by the court in terms of
section 112 (1) (b) of Act 51 of 1977, the appellant admitted to
having stolen a tool
box valued at R399.99 from Checkers Hyper in
Eastgate. The said property retrieved from him and restored to the
owner.
3.
The appellant was 51 years old at the time
of sentencing, divorced and unemployed. He was diabetic and was
dependant in insulin.
He had two children who were still dependant on
him. The appellant’s list of previous convictions entails four
of fraud,
two of theft, one of possession of suspected stolen
property and two traffic offences. Out of all these, the only time
that he
was sentenced to a term of imprisonment without a fine was in
2004 when he was sentenced to 12 months imprisonment, half of which
was conditionally suspended. In all the other sentences, he would be
sentenced to a fine or the sentence would be wholly suspended.
4.
The regional magistrate held that the
appellant did not learn from his past convictions and the sentences
imposed hence he sentenced
him to 6 years imprisonment.
5.
It was submitted by counsel for the
appellant that the sentence imposed was shocking and was
disproportionate to the crime he was
convicted of. It was further
submitted on his behalf that the sentence of three years imprisonment
would have been appropriate
given his previous convictions.
6.
The appeal court’s power to interfere
with a sentence is circumscribed to instances where the sentence is
vitiated by an irregularity,
misdirection or where there is a
striking disparity between the sentence and that which the appeal
court would have imposed had
it been the trial court. See
S
v Snyder
1982 (2) SA 694
(A)
7.
Counsel for the State conceded that the
sentence imposed appears to have been meant to punish the appellant
for the past convictions.
It would appear
that in sentencing the appellant, sight was lost of the fact that he
served his sentences for all the previous convictions
and that this
time around, he had to be sentenced for the current theft. In
S
v Beja
2003 (1) SACR 168
SE (at p. 170)
Pillay J held,
“
The
magistrate clearly, in my view, misdirected himself in
overemphasising the prevalence of the crime, the impact of the list
of previous convictions of the accused and seemed to be misguided in
reasoning that the accused could not be rehabilitated without
a long
term of imprisonment and thereby disguising the sentence so as to
give the impression that it is in the interest of the
accused. It is
trite that the sentence must always fit the crime and the fact that
the person to be punished has a long list of
previous convictions of
a similar nature, while it may be an important factor,
could
never serve to extend the period of sentence so that it is
disproportionate to the seriousness
of the crime for which such a person must be
punished
.
A period of imprisonment must always be reasonable in relation to the
seriousness of the offence.” [
own
emphasis
]
8.
The learned judge quoted with approval the
passage in
S v Baartman
1997 (1) SACR 304
E (at 305) where Jones J held,
“
In
a case such as this it is necessary to be aware of three
considerations:
(a)
the accused should be sentenced for the offence charged and not for
his previous record;
(b)
the public interest is harmed rather than served by sentences that
are out of all proportion to the gravity of the offence;
and
(c)
while it may be justifiable up to a point to impose escalating
sentences on offenders who keep on repeating the same offence,
there
are boundaries to the extent to which sentences for petty crimes can
be increased.
Thus,
a thief who steals a loaf of bread should not have to go to gaol for
10 years because he has stolen countless loaves of bread,
one at a
time, in the past. His sentence should never escalate with the
passage of time from a few weeks for initial offences,
to a few
months, eventually to years, and then to many years; the offence
remains a petty offence no matter how often it is repeated.”
9.
The appellant must be punished for the
offence he was convicted of and not for other crimes committed in the
past. Undoubtedly,
previous convictions are relevant to sentence, but
only in so far as they reflect upon the character of the accused. A
person with
a record such as that of the appellant is obviously less
deserving of mercy than is a first offender; he is also probably less
amenable to rehabilitation. It is obvious that the only suitable
sentence given this history is one of direct imprisonment, but
which
cannot be taken too far. It would appear the court a quo sentenced
the appellant as a preventative measure that he would
not be able to
steal because he would be in prison. As rightly put by Erusmus J in
S
v Smith
[2000] JOL 7026
(E),
“Preventive imprisonment is not part of our law. Sentences
therefore cannot escalate indefinitely beyond the point where
they
are out of proportion to the crime. Prevalence of the offence is a
consideration when it comes to sentences, but care must
be taken not
to punish an accused for the crimes of others.”
10.
A sentence of six
years’ imprisonment for stealing a tool box in circumstances
where there was no actual loss since the item
was restored to the
owner, strikes me as unduly harsh. Such sentence moreover, in my
view, is disproportionate to the crime of
which the appellant has
been convicted (
S
v Vilakazi
2009
(1) SACR 552
(SCA) para [54]).
11.
In the light of what
I have stated above I am of the view that this court is entitled to
intervene and to substitute the sentence
imposed by the court
a
quo
. In my
view having regard to the totality of the circumstances, the proposed
sentence of three years’ imprisonment is appropriate
and fair.
12.
In the result I would make the following
order:
1.
The appeal against sentence is upheld to
the extent that the sentence imposed is set aside and substituted
with the following sentence:
Accused
is sentenced to 3 (three) years imprisonment.
2.
No order is made in terms of section
103
(1) Act 60
of 2000 (accused is unfit to possess a firearm).
3.
The commencement of the sentence is
antedated to 06 August 2013.
_____________________
TV
RATSHIBVUMO
ACTING
JUDGE OF THE HIGH COURT
I agree and it is so
ordered.
_______________________
M VICTOR
JUDGE
OF THE HIGH COURT
FOR
THE APPELLANT : ADV M BOTHA
INSTRUCTED BY :
JOHANNESBURG JUSTICE CENTRE
JOHANNESBURG
FOR
THE RESPONDENT : ADV P FUTSHANE
INTRUSCTED
BY: DIRECTOR OF PUBLIC PROSECUTIONS
JOHANNESBURG
DATE
HEARD : 11 AUGUST 2014
JUDGMENT
DELIVERED: 14 AUGUST 2014