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[2010] ZAWCHC 495
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Lukas and Another v S (A417/2010) [2010] ZAWCHC 495 (15 October 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER: A417/2010
DATE: 15 OCTOBER 2010
In
the matter between:
GERSHWIN
LUKAS
….............................................................................
1
s
'
Appellant
CHRISTIANO
PLAATJIES
….............................................................
2
nd
Appellant
and
THE
STATE
…....................................................................................
Respondent
JUDGMENT
LE
GRANGE. J:
The
two appellants in this matter were charged in the District Court of
Calitzdorp with one count of housebreaking with the intent
to steal
and theft. Both appellants were legally represented in the court a
quo.
The
first appellant who was 16 years old at the time, pleaded guilty in
contravening the provisions of section 36 of the General
Law
Amendment Act 62 of 1955, also commonly known as the possession of
stolen goods. The second appellant, who was 17 years old
at the time,
pleaded guilty in terms of section 1(i) of the Criminal Law Amendment
Act 1 of 1988. Both appellants were convicted
on their plea of guilty
and were each sentenced to a term of three years direct imprisonment.
The
court a
quo
refused
to grant the appellants leave to appeal against their sentence. The
appellant then petitioned the Judge President of this
division and
leave to appeal against sentence was granted. Counsel for the
appellants, however, argued that insofar as the first
appellant is
concerned, the court a
quo
erred
in convicting him of contravening section 36 of the General Law
Amendment Act 62 of 1955. It was contended that the written
plea-explanation of first appellant does not admit all the elements
of the crime as envisaged by section 36.
The definition of
section 36 provides as follows:-
"Any person who
is found in possession of any goods, other than stock or produce as
defined in section 13 of the Stock Theft
Act 26 of 1923, in regard
to which there is reasonable suspicion that they have been stolen
and is unable to give a satisfactory
account of such possession,
shall be guilty of an offence and liable on conviction to the
penalties which may be imposed on a
conviction of theft."
If
the reference pertaining to the stock theft in the section is
ignored, for the purpose of this case, then the elements of the
crime can essentially be described as follows. The goods must be
found in possession of a person, there must be a reasonable
suspicion that the good have been stolen and the person must be
unable to give a satisfactory explanation of the possession.
In this
regard see also
Criminal
Law
by
C R Snyman, 4
th
Edition,
at page 513 and further.
The following relevant
facts were recorded in the plea-explanation of the first appellant,
and I refer to paragraph 4 and 5 of
his written plea-explanation.
"4. Ek erken dat
ek op 29 November 2009 en te St Helena, Calitzdorp, in die distrik
van Calitzdorp, wederregtelik en opsetlik
in besit was van gesteelde
goedere, te wete n laptop, vir welke besit ek nie in staat was om
voldoende rekenskap te gee nie.
5. Die volgende het
gebeur. Christiano Plaatjies het die skootrekenaar die betrokke dag
daar gebring en my gevra om dit vir horn
te verkoop. Alhoewel ek nie
horn gevra het waar hy dit gekry nie. het ek geweet dat hy dit
iewers moes gesteel het. Dit was dan
ook die rede hoekom ek nie vir
horn gevra het nie."
In my view, the
admissions tendered by the first appellant, satisfied essential
requirements of section 36. The first appellant
admits that he was
found in possession of the laptop He also admits that second
appellant brought the laptop to his
house
and he had a strong suspicion it must have been stolen somewhere.
The reasonable suspicion requirement that the goods have
been stolen
was, in my view, properly admitted The first appellant also gave an
account of his possession, which in fact borders
on admitting theft.
In my view if the court a
quo
erred,
then it erred on the side of caution in convicting the first
appellant of contravening section 36 and not of a more serious
offence.
Returning to the appeal
against sentence. The first appellant, at the time of committing the
offence, was 15 and 16 years old
when sentenced. He resides with his
mother and her partner He is the second eldest of five children and
the family survives on
the income of the mother, who earns
approximately R250.00 per month. The appellant has six previous
convictions, of which three
are relevant, being housebreaking with
the intent to steal and theft. The probation officer's report stated
the following:
"Met inagneming
van die SAP 69 van die beskuldigde. was hy reeds 12 jaar oud to hy
by misdaad betrokke geraak het. Hy het
reeds ses vorige
veroordelings, maar nooit was daar oorweging gebied aan die
verwysing van 'n jeugsorgsentrum om sodoende die
beskuldigde se
sterk punte uit te bou nie, ten einde positiewe gedragsverandering
te weeg te bring. As daar gelet word na die
datums wanneer die
beskuldigde misdade gepleeg het, was dit ongeveer een jaar
uitmekaar. Dit is 'n baie duidelike aanduiding
dat die beskuldigde
rehabiliteerbaar is in die gemeenskap met die nodige ondersteuning.
Hy is nie n geharde kriminele nie en
is ook geen gevaar vir die
gemeenskap nie. Die beskuldigde is huidiglik 16 jaar oud en het 'n
baie groot akademiese agterstand,
dus sal die verwysing na n
jeugsorgsentrum nie in die beskuldigde se guns tel nie. Vonnisopsie
waaraan oorweging geskenk word
is die van 'n opgeskorte vonnis,
aangesien die beskuldigde nie n eerste oortreder is nie. Hy kan vir
rehabilitasie inskakel by
die lewensvaardigheidsprogramme, onder
leiding van n assistant proefbeampte."
Despite
the social ills that may prevail in the community where the
appellant resides, society demands that the courts impose
appropriate sentences where crimes of this nature are committed,
taking into account the well established principles on sentencing.
It is trite law that direct imprisonment for juvenile offenders
should be the last resort. Taking into account the probation
officer's report and the first appellant's previous convictions, it
is evident that not all appropriate sentencing options were
considered by the court a
quo
Moreover,
it has not been established that the first appellant is a danger to
society that warrants direct imprisonment. The court
a
quo,
in
my view, overemphasised the seriousness of the offence and the
interest of the society at the expense of the appellant's personal
circumstances. The imposed sentence is also shockingly inappropriate
and disproportionate to the interest of the society, the
seriousness
of the offence and the appellant's personal circumstances.
A sentence in the form
of correctional supervision in terms of the provision of section
276(1)(h) of the Criminal Procedure Act,
would have been a more
appropriate sentence in the circumstances of this case. The first
appellant is, however, in prison for
almost 10 months to date.
Taking into account all the relevant factors pertaining to sentence,
I am of the view that a more just
and equitable sentence is a term
of 18 months imprisonment, of which a portion is suspended for a
period on certain conditions.
With regard to the
second appellant, his plea of guilty was essentially that he was
under the influence of drugs when committing
the offence. The second
appellant's personal circumstances are as follows. He was 16 at the
time of committing the offence and
at date of sentence. 17 years old
He is the eldest of two children and resides with his mother. It
appears that his negative
behaviour stems from the poor conditions
at home and the absence of a father figure. It is apparent from the
probation officer's
report that the second appellant does not have a
good relationship with his mother The appellant has a scholastic
achievement
of Grade 7. The appellant is dependent upon his mother
for his basic needs and the only source of income is the R240.00
child's
grant she receives in respect of the second appellant's
younger sister The second appellant has two relevant previous
convictions
The probation officer recommended that he was capable of
rehabilitation within the community, provided he has the necessary
support
and recommended that a suspended sentence be considered.
In
crimes of this nature, it is expected that the courts must properly
consider the personal circumstances of the offender in
the
determination of sentence. In
S
v Kwalase
2000(2)
SACR 135 and at 137i-138a, the court held the following:
'In
determining the appropriate sentence to be imposed upon an accused
person in any particular case, it is the duty of the court
to have
regard, not only to the nature of the crime committed and the
interest of society, but also the personality, age and
circumstances
of the offender. In the case of a juvenile offender, it is above all
necessary for the court to determine what
appropriate form of
punishment, in the peculiar circumstances of the case would be best
served, the interest of society, as well
as the interest of the
juvenile. The interest of society cannot be served by disregarding
interests of the juvenile, for a mistaken
form of punishment might
easily result in a person with a distorted or more distorted
personality being eventually returned to
society. To enable a court
to determine the most appropriate form of punishment in the case of
a juvenile offender, does become
the established practice in a cause
to call for a report on the offender by
a
probation
officer in at least all serious cases."
The
ideal is that no child should ever have to go to prison. In
practice, however, there will always be cases so serious that
imprisonment is the only appropriate punishment, even for juvenile
offenders. The approach to the treatment of juvenile offenders
is to
emphasise the wellbeing of the juvenile and to ensure that any
reaction to juvenile offenders will be in proportion to
the
circumstances of both the offenders and the offence. In this regard
see
Kwalase
supra,
at 139c-d.
The aggravating factors
in this matter are that the value of the items that the appellant
took, being the laptop and the DVD player,
amounted to R5 600,00.
The complainant's privacy was invaded. The prevalence of such
offences occurs on a regular basis, it appears,
in the district of
Calitzdorp, and it appears that the appellant's personal
circumstances, in particular his previous convictions,
are also an
aggravating factor. It is true that serious offences merit severe
punishment and that the community expects offenders
to be punished,
but the community also expects at the same time that mitigating
circumstances will be taken into account and
that an offender's
particular position will be given thorough consideration.
The
imposed sentence of the second appellant also induced a sense of
shock. Moreover, it is also evident that not all the appropriate
sentence options were considered by the court a
quo,
and
it has not been established that the second appellant is a danger to
society that warrants direct imprisonment. The court
a
quo,
in
my view, overemphasised the seriousness of the offence and the
interest of the society, at the expense of the appellant's personal
circumstances. The opposed sentence is disturbingly inappropriate
and disproportionate to the crime, the interest of society
and the
appellant's personal circumstances.
With regard to the
second appellant, I am also of the view that a sentence, in the form
of correctional supervisions in terms
of the provisions of section
276(1)(h) of the Criminal Procedure Act would have been a more
appropriate sentence, having regards
to the fact of this case. The
second appellant is also in prison for almost 10 months to date.
Taking into account all the relevant
factors pertaining to sentence,
I am of the view that a more just and equitable sentence is a term
of 18 months imprisonment,
of which a portion is suspended for a
period on certain conditions. It follows that the appeal against the
sentence must succeed.
In the result the
following order is made:-
(a) The convictions of
both appellants are confirmed
(b) The appeal against
sentence succeeds and the opposed sentence is set aside and
substituted with the following.
(c)
Each of the accused is
SENTENCED
TO 18 (EIGHTEEN) MONTHS IMPRISONMENT
in
terms of the provisions of section 276(1 )(i) of the
Criminal
Procedure Act 51 of 1977
,
OF
WHICH 8 (EIGHT) MONTHS IS SUSPENDED FOR A PERIOD OF 3 (THREE) YEARS
on
condition that they are not again convicted of housebreaking with
the intent to steal and theft committed during the period
of
suspension and where direct imprisonment is imposed without the
option of a fine.
LE GRANGE, J
I agree.
LAUBSCHER, AJ