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[2011] ZASCA 103
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Furlong v S (064/11) [2011] ZASCA 103; 2012 (2) SACR 620 (SCA) (1 June 2011)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
C
ase No:
064/11
In the matter between:
SHELDON
PATRICK FURLONG
..................................................
Appellant
and
THE STATE
....................................................................................
Respondent
Neutral citation:
Furlong
v State
(064/11)
[2011] ZASCA 103
(1 June 2011)
Coram:
NAVSA, SERITI JJA
and PETSE AJA
Heard: 24 May 2011
Delivered: 1 June 2011
Summary:
Criminal Law ─
sentence ─ accused charged with a contravention of section 36
of the General Law Amendment Act 62 of
1955 ─ magistrate
equating offence with more serious offences ─ sentence set
aside and substituted with a lesser sentence.
_____________________________________________________________________
ORDER
On appeal from:
North
Gauteng High Court (Pretoria) (Mavundla J and Van Zyl AJ sitting as a
court of appeal):
The appeal is allowed.
The order of the court a quo is
set aside and in its place the following is substituted:
‘
1. The
appeal is upheld.
2. The sentence imposed by the
magistrate is altered to read as follows:
“
The
accused is sentenced to three years’ and two days’
imprisonment.”
The substituted sentence set out
in 2 above is antedated to 18 May 2007.’
___________________________________________________________
JUDGMENT
PETSE AJA (NAVSA and SERITI JJA
concurring)
[1] The
appellant stood trial in the regional court, Musina, on a charge of
contravening s 36 of the General Law Amendment Act 62
of 1955.
1
[2] It was common cause at the
trial that on or about 24 October 2006 the appellant was, at or near
Beit Bridge in the regional
division of Limpopo, found in unlawful
possession of an Audi Q7 four-wheel drive motor vehicle (the vehicle)
valued at R750 000.
There was a reasonable suspicion that the vehicle
had been stolen as the appellant was unable to proffer a satisfactory
account
of such possession.
[3] Having pleaded guilty to the
charge he was duly convicted as charged and sentenced to imprisonment
for a period of seven years.
[4] The appellant unsuccessfully
appealed against his sentence to the Pretoria High Court. Aggrieved
by this result the appellant
applied to the Pretoria High Court for
leave to pursue a further appeal against sentence to this court,
which was granted.
[5] The owner of the vehicle, Mr
Hlanigani Joseph Maluleke testified in relation to sentence only. A
summary of his evidence is
set out hereunder. On 14 October 2006 at
about 19h00 he was driving the vehicle on Klagobela Street in
Atteridgeville when he realised
that there was a white motor vehicle
driving behind him. When he reached the end of the street, which was
a cul-de-sac, a white
motor vehicle parked behind him, rendering it
impossible for him to execute a u-turn. Suddenly someone was pointing
a gun at him
alongside the driver’s window of his vehicle,
demanding that he alight. He complied and at that stage saw two other
men opening
the rear passenger door of his vehicle. Then he was
shoved into the vehicle and instructed to lie face down as they drove
from
the scene.
[6] The hijackers searched Mr
Maluleke and seized his automated bank teller cards. He was compelled
to disclose the personal identity
numbers of his bank cards under
threat of death should the numbers disclosed turn out to be false.
Later he was ejected from the
vehicle, pushed down a slope and bushy
area, with both his hands tied behind his back. He managed to walk to
a toll plaza on the
N4 road between Rustenburg and Atteridgeville
from where the police were summoned.
[7] Mr Maluleke subsequently
learnt, on making enquires from Standard Bank and ABSA Bank, that a
total of R18000 had been withdrawn
from his bank accounts. When his
motor vehicle was recovered by the police on 24 October 2006 his
laptop, digital camera, bank
cards and cheque book were missing. Due
to the fact that he was robbed of his motor vehicle at night he could
not identify his
assailants. So much then for his evidence.
[8] It is apposite at this stage
to mention that in his written statement in substantiation of his
guilty plea in terms of
s 112(2)
of the
Criminal Procedure Act 51 of
1977
, the appellant admitted all the essential elements of the
offence charged including admitting that at the time of his arrest he
was in no position to give a satisfactory account of his possession
of the vehicle and that his dealings with the vehicle were
at all
material times intentional and unlawful.
[9] The circumstances in which an
appellate court would be justified in interfering with a sentence of
the trial court have been
restated in a long line of judgments of
this court. In
S v Mtungwa & ‘n ander
1990 (2) SACR
1
(A) this court held that once it is shown that one, some or all of
the following factors exist the appellate court would be justified
to
interfere, namely: if the sentence is, for example, (i) disturbingly
inappropriate; (ii) totally out of proportion to the magnitude
of the
offence; (iii) sufficiently disparate; (iv) vitiated by misdirection
showing that the trial court exercised its discretion
unreasonably
and (v) is otherwise such that no reasonable court would have imposed
it. (See also
S v L
1998 (1) SACR 463
(SCA);
S v Salzwedel
& others
1999 (2) SACR 586
(SCA);
S v Giannoulis
1975
(4) SA 867
(A) at 868G-H;
S v Kgosimore
1999 (2) SACR 328
(SCA) at para 10)
[10] On appeal before us the
severity of the sentence imposed on the appellant was assailed on a
number of bases. It was contended
that the trial court paid little or
no regard to the moral blameworthiness of the appellant; failed to
give due weight to the fact
that by pleading guilty the appellant had
thereby expressed contrition; and committed a material misdirection
by imposing ‘an
exemplary sentence’ that had the effect
of ‘dramatically altering the existing sentencing patterns’.
[11] The critical issue for
determination in this appeal therefore is whether the trial court
committed a material misdirection
of the nature alleged or there is
otherwise justification warranting interference with the sentence
imposed by the trial court.
Allied to that issue is the question
whether the court a quo should have come to a conclusion different to
the one reached by it.
[12] The magistrate based his
reasoning for the sentence imposed on the following factors: (a) the
seriousness of the offence that
the appellant was convicted of,
aggravated by the fact that the vehicle concerned had been hijacked;
(b) the alertness of the police
that led to the recovery of the
vehicle meant that their ‘good work’ was deserving of
appreciation to be reflected
by imposing a sentence that ‘would
encourage them to combat crime in the future as they have in this
case’; (c) that
car-hijackers and thieves would continue
relentlessly with their nefarious activities for so long as there
were people such as
the appellant who hold themselves ready to
dispose of hijacked and stolen vehicles; (d) the prevalence of the
offence in the area
of jurisdiction of the trial court.
[13] In making these observations
on reaching a decision on an appropriate sentence the trial court was
in fact equating the offence
that the appellant was charged with with
the offence of robbery and/or theft. Put differently he was being
punished for more serious
offences than the one he was being charged
with. In particular the magistrate appeared intent on punishing the
appellant for the
actions of the hi-jackers. This is a material
misdirection which is inextricably linked with the trial court’s
decision on
an appropriate sentence. There is no doubt that it is
that view that resulted in a more severe sentence. This court is thus
at
large to interfere.
[14] Although the learned
magistrate was at pains to point out that he would take care not to
sacrifice the appellant on the altar
of deterrence, I am satisfied
that, given the severity of the sentence that he ultimately imposed
on the appellant, he in fact
only paid lip service to this laudable
principle.
[15] It remains to consider what,
in the circumstances, is an appropriate sentence in substitution of
the one imposed by the trial
court and confirmed by the court a quo.
[16] We were
informed by counsel for the appellant at the hearing of the appeal ─
following inquiries made by him from correctional
services at the
behest of this court ─ that the appellant had been released
under correctional supervision on 20 May 2010.
The appellant was
sentenced to seven years’ imprisonment on 18 May 2007, which
then means that he had served three years
of his seven year sentence.
Prior to his conviction he was in police detention for four months
awaiting trial. He was at the time
of his conviction a first offender
and 40 years of age. It must be mentioned that, although he pleaded
guilty to the charge, it
is not possible to discern, on the evidence
before us, whether his guilty plea can be taken as an expression of
genuine remorse
or was rather provoked by a stark realisation on his
part that the State had ‘an open and shut’ case against
him, in
which event his guilty plea would be a neutral factor.
2
The appellant
also had two minor children then aged 11 and 15 years who, it would
appear, were solely dependant on him for their
livelihood. He had
just found employment as a despatch clerk from which he would have
earned a salary of R2000 per month.
[17] The appellant’s
counsel submitted on his behalf that the appellant’s role was
merely to deliver the vehicle to
someone in Zimbabwe. This submission
appears well founded.
[18] There are aggravating
factors that are deserving of due consideration. The appellant was
convicted of a serious offence. It
is thus perfectly understandable
that the learned magistrate gave the appellant’s plea for an
option of a fine short shrift.
As stated before he had been found in
possession of a relatively new motor vehicle, worth almost R800 000,
which was on the verge
of being whisked away beyond the borders of
this country.
[19] There is no doubt that a
sentence of 7 years’ imprisonment is more appropriate in the
case of theft of a motor vehicle.
And as pointed out before the
magistrate in sentencing the appellant appeared intent on punishing
the appellant for the acts of
the hi-jackers. The period spent in
jail by the appellant awaiting trial and the fact that he has already
been released under correctional
supervision are relevant factors in
a decision concerning an appropriate sentence.
[20] In my view the state rightly
conceded that a suitable sentence in all the circumstances of this
case is the period of imprisonment
already served. The effect of the
order below is that there will be no further period of imprisonment
to be served by the appellant.
Thus the sentence will be antedated.
[21] In the result the following
order is made:
1. The appeal is allowed.
2. The order of the court a quo
is set aside and in its place the following is substituted:
‘
1. The
appeal is upheld.
2. The sentence imposed by the
magistrate is altered to read as follows:
“
The
accused is sentenced to three years’ and two days’
imprisonment.”
The substituted sentence set out
in 2 above is antedated to 18 May 2007.’
___________________
XM Petse
Acting Judge of Appeal
APPEARANCES
APPELLANT: HL Alberts
Instructed by Pretoria Justice
Centre, Pretoria;
Bloemfontein Justice Centre,
Bloemfontein.
RESPONDENT: SR Sibara
Instructed by Director of Public
Prosecutions, Pretoria;
Director of Public Prosecutions,
Bloemfontein.
1
S36
provides:
‘
Failure
to give a satisfactory account of possession of goods. Any person
who is found in possession of any goods, other than
stock or produce
as defined in section one of the Stock Theft Act, 1959 (Act 57 of
1959), in regard to which there is reasonable
suspicion 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.
2
See
S v Barnard
2004
(1) SACR 191
(SCA) at 197g-h.