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[2015] ZAGPJHC 74
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Mkhize v S (A383/2014) [2015] ZAGPJHC 74 (24 April 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: A383/2014
DATE: 24 APRIL 2015
In the matter between:
MKHIZE
ZWELI
.....................................................................................................................
Appellant
And
THE
STATE
...........................................................................................................................
Respondent
J U D G M E N T
SWARTZ, AJ:
[1] The appellant appeared in the
District Court, Germiston, where he pleaded guilty to one count of
theft of cosmetics valued at
R 751.28, the property of or in the
lawful possession of Checkers Hyper Eastgate and/or Gale Mathebula.
[2] In terms of Section 114(1)(b) of
the Criminal Procedure act 51 of 1977 the matter was referred to the
Regional Court for sentencing
purposes. On 15 November 2011 he was
sentenced to 9 (nine) years imprisonment. Leave to appeal against
sentence was granted. On
behalf of the appellant it was argued that
the sentence was harsh and inappropriate because over-emphasis was
placed on the seriousness
of the offence and the previous convictions
of the appellant. On behalf of the respondent it was submitted that
the sentence imposed
by the court a quo was appropriate because,
considering the circumstances of this case, the sentence does not
induce a sense of
shock.
[3] It is trite law that when a court
considers an appropriate sentence the seriousness of the offence, the
interests of the accused
as well as the interests of society ought to
be taken into account. S v Zinn
1969 (2) SA 537
(A).
[4] After the criminal record of the
appellant was presented to the District Court, the matter was
transferred to the Regional Court
for the imposition of sentence.
During his plea the appellant admitted having stolen the cosmetics;
that he concealed the items
in his pockets and passed the till point
without paying for the items; the security officer of the shop called
him when he was
already outside the shop in order to search him when
the stolen items were discovered. The trial court similarly
considered the
mitigating factors being that the appellant has four
young children and he was the breadwinner in his family. The
aggravating factors
were the seriousness and prevalence of the
offence and, importantly, the 9 previous convictions, a total of 8
for theft and 1 for
fraud.
[5] All the previous convictions of the
appellant involve the element of dishonesty. His criminal record
reflects that he was sentenced
for a period of 6 years imprisonment
in February 2009. In light of the fraud conviction of May 2011, it
appears that he at most
served 2 years imprisonment for those
offences.
[6] It was submitted on behalf of the
appellant that the magistrate erred in only taking into account the
fact that the appellant
has a host of previous convictions without
considering the respective sentences that was handed down. The
magistrate sentenced
the appellant to a lengthy period of
imprisonment without taking into consideration, so the argument went,
that the appellant was
not previously sentenced to a lengthy period
of direct imprisonment. The majority of the previous sentences were
either suspended
or it was short periods of imprisonment, coupled
with the option of a fine.
[7] It is trite law that sentencing is
pre-eminently the task of the trial court. A court of Appeal will
only interfere with this
discretion if the trial court misdirected
itself, or did not exercise its discretion judicially and properly,
or if the sentence
is startlingly inappropriate or that the interests
of justice require it. S v Anderson
1964 (3) SA 494
(A) at 495 B-G; S
v Salzwedet
2000 (1) SA 786
(SCA) at 790 B-F.
[8] In terms of Section 271 A of the
Criminal Procedure Act 51 of 1977
, the sentencing court is obliged to
consider the previous convictions of a convicted person. The court
has a discretion on the
degree and extent it places on these previous
convictions. S v Makhaye
2011 (2) SACR 173
(KZD) at 176 E-F:
“although
s271
(4) requires the
sentencing court to take previous convictions into account when
determining the appropriate sentence, it does
not take away the
discretion of the sentencing court. The court is enjoined to exercise
its discretion judicially when taking into
consideration previous
convictions.
In the exercise of its discretion, the
sentencing court is required to have regard to the nature, the number
and the extent of similar
previous convictions and the passage of
time between them and the present offence. The relevance and
importance of those convictions
depend upon the element they have in
common with the offence in question...
...
The degree of emphasis to be placed
upon previous convictions is a matter which is within the discretion
of the trial court. Where
the degree of emphasis is disturbingly
inappropriate, in that it cannot be said that the sentencing court
exercised its discretion
judicially, the court of appeal will
interfere.”
[9] On behalf of the respondent it was
contended that the appellant failed to show this court that the court
a quo erred and misdirected
itself when it imposed the sentence of 9
years imprisonment and that the appeal on sentence should be refused.
[10] In my view the magistrate was
correct in sentencing the appellant to direct imprisonment because of
his previous convictions.
However, the period of 9 years direct
imprisonment is harsh under the circumstances of the present case. A
lesser period of imprisonment
will probably still have the desired
effect of punishment of the appellant for his illegal act, make him
realise the blameworthiness
of his actions but also provide him with
the opportunity to rehabilitated.
[11] I propose the following:
-The appeal is upheld. The sentence of
9 years direct imprisonment is set aside. In its place, the appellant
is sentenced to 9 years
imprisonment, of which 3 years is suspended
for a period of 5 years on condition that the appellant is not
convicted of a similar
offence within the period of suspension.
E SWARTZ
ACTING JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
I agree and it is so ordered.
B MASHILE
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
COUNSEL FOR THE APPELLANT ADV M
BOTHA
INSTRUCTED BY LEGAL AID SOUTH AFRICA
COUNSEL FOR THE RESPONDENT R BESTER
INSTRUCTED BY OFFICE OF THE DIRECTOR
OF
PUBLIC PROSECUTIONS
DATE OF HEARING 16 APRIL 2015
DATE OF JUDGMENT 24 APRIL 2015