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[2010] ZAWCHC 538
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Julies and Another v S (A416/2010) [2010] ZAWCHC 538 (10 November 2010)
IN
THE WESTERN CAPE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
Case
No: A416/2010
In
the appeal between:
Hendrik
Julies
…............................................................................................
Appellant
No. 1
Huzzel
Lukas
….............................................................................................
Appellant
No. 2
Versus
The
State
….........................................................................................................
Respondent
Judgment
delivered: 10 November 2010
R.D.
MacDougall, AJ
The
present appeal relates to two appellants, Hendrik Julies is the
first appellant, Huzzel Lukas is the second appellant.
Originally
three accused were tried in the court a quo. Both appellants pleaded
guilty to four counts of housebreaking with the
intention to steal
and theft. The amount of the goods involved was the sum of R21
643.60. The second appellant also pleaded guilty
to a further count
of housebreaking with the intention to steal and theft. The value of
the goods in the last mentioned count
was R412.00.
Both
appellants had a number of previous convictions in which
housebreaking with the intent to steal and theft prominently
featured.
The
accused were fourteen years old at the time of sentencing and were
each sentenced to three years in prison in a youth prison.
Miss
Square, who had compiled probation reports on behalf of the two
appellants informed the court that she recommended postponed
sentences in the case of the two appellants. She testified that at
the time that she drew up her recommendations in the reports,
she
was unaware that both appellants had previous convictions.
Miss
Square testified that this was her first year as a probation officer
and that she was learning every day. Miss Square also
testified that
the recommended sentence decision also came from a 'House Outeniqua'
panel meeting in George. Part of the panel
consisted of the
appellants and their parents. I do not know what the status of 'Huis
Outeniqua' is save that it appears to hold
juvenile offenders until
they are sentenced.
There
is one aspect that a person gleans from the evidence of Miss Square
and that is that Miss Square was told by the parents
of both
appellants that they were undisciplined and it clearly appears that
their homes are not structured. Both these appellants
urgently need
disciplined and structured lives. From the evidence before the
magistrate it does not appear that the social services
available to
the appellants in Caiitzdorp would provide the necessary structure
for the appellants should they be released back
into the community,
under their supervision.
The
learned magistrate asked Miss Square if she was not overlooking the
interests of the complainants, i.e. the interests of society
in her
approach to sentence. Miss Square replied that this was indeed so.
I
would
not have handed down the sentence that the magistrate did. I do not
believe that the sentence of three years direct imprisonment
was the
last resort for the appellants. A sentence of three years
imprisonment is clearly inappropriate in this case but so is
a
postponement of sentence.
In
the case of S v R
1993 (1) SA 476
(A) Kriegler A.J.A. pointed out
that the introduction of correctional supervision as a sentencing
option had ushered in a new
phase in the South African Criminal
Justice System.
I
am of the view that as was suggested by Mr. Theunissen on behalf of
the appellants, the appropriate sentence in the particular
circumstances of this case for both appellants would have been 'two
years imprisonment in terms of section 276 (1) (i) of the
Act 51 of
1977 as amended.' I might add that Ms Ajam. on behalf of the state,
agreed that this would, in the circumstances, be
an appropriate
sentence. This will enable the Commissioner of Correctional Services
to place the appellants under correctional
supervision. This, in my
view, will provide the structured regime which the appellants
clearly need and will serve the interests
of the community.
In
the result I would make the following order.
The
convictions are confirmed but the appeal against sentence succeeds.
The
sentences imposed by the magistrate are changed to
Two
years imprisonment in terms of the provisions of section 276 (1) (i)
of Act 51 of 1977, to commence on 3 June 2010.'
R.D.
MacDougall AJ
Acting
Judge of the High Court
I
agree and it is so ordered.
W.J.
Louw J
Judge
of the High Court