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[2019] ZAGPPHC 328
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Mosepele v S (A101//2018) [2019] ZAGPPHC 328 (18 July 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION PRETORIA
1)
REPORTABLE:
YES
2)
OF
INTEREST TO OTHER
JUDGES:
YES
3)
REVISED.
CASE
NO: A101//2018
DATE OF HEARING: 20 MAY 2019
In
the matter of:
ELLIOT
MOSEPELE
APPELLANT
And
THE
STATE
RESPONDENT
JUDGMENT
BamAJ
Introduction
1.
This
is an appeal against sentence imposed by the Regional Court for
Gauteng, held in Oberholzer. Appellant was charged with theft,
read
with section 51 (2) of the Criminal Law Amendment Act,
[1]
(CLAA) on 1 June 2016 in the district of Kutsong. He was not legally
represented when he pleaded guilty to the charge. The state
was able
to prove several previous convictions which led to the referral to
the regional court. Appellant was sentenced to 12 years
imprisonment,
of which five years were suspended for five years, based on the
conditions imposed. The appellant was further declared
unfit to
possess a firearm. His application for leave to appeal against the
sentence was unsuccessful, leading to the appellant
petitioning the
Judge President of this court. Such petition was granted on 6 March
2018.
Appellant's
case on appeal
4.
The
appeal is brought on the grounds that the magistrate failed to take
into account the personal circumstances of the appellant
and in so
doing, meted out a sentence which induces a sense of shock. This
court is asked to exercise its powers and correct the
result of the
court a quo's misdirection.
5.
The
facts leading to the sentence can be briefly stated as follows: In
April 2016 at or near Kutsong district, appellant was the
last person
to call at the salon in question. He asked for a haircut and was
advised to wait as the owner/complainant was still
busy with the
penultimate patron. While waiting, appellant decided to help himself
to the property of the complainant,
to
wit,
two mobile phones and a R50
rand note which were on the table and left the salon. The state's
case indicates that the complainant
had seen him pilfering the
property and called him out but appellant kept walking into the
streets. There is also evidence indicating
that the two know each
other. A charge of theft was laid and upon hearing of the charge,
appellant went to tender the return of
the two mobile phones. Nothing
was said about the R50. Appellant was nevertheless arrested a day
after the theft. Before he was
sentenced, a plethora of previous
convictions were read, which the appellant confirmed. Of the previous
convictions, some involve
petty thieving, drugs and drug trafficking,
and three convictions of robbery. These are the convictions as
contained in the record:
(i)
On
24 October 2008 - theft - fine of R1200 or 90 days' imprisonment;
(ii)
9
July 2009 - failure to give satisfactory account for possession of
goods - fine of R1000 or 3 months imprisonment;
(iii)
7
December 2007, conviction in terms of Drugs and the Drug Trafficking
Act - fine of R2000;
(iv)
12
August 2010 - robbery and attempt to escape from lawful custody -
sentence not mentioned in the record;
(v)
20 March 2014 - theft - R300 or
30 days' imprisonment and declared unfit to possess a firearm;
(vi)
25
August 2014 - contravention of section 117 (e) of the Prison Act 111
of 1998 in that while subject to community service, appellant
absconded and avoided being monitored - two years' imprisonment and
further declared unfit to possess a firearm;
(vii)
4
September 2014 - contravention of section 4 (b) of Act 140 of 1992 in
that appellant was found in possession of a dependence producing
substance and fined R2400 or 3 months' imprisonment;
(viii)
on
11 January 2016 a further conviction in terms of section 4 (b) of the
last Act of 1992 followed and appellant was again fined
R300 or 30
days' imprisonment.
6.
As
to the personal circumstances, the appellant's attorney placed on
record that he was 24 years.
[If one
considers his age when he received his first conviction in 2008,
appellantmust have been 14].
He is
not married and has two children aged 4 years and 11 months. He was
unemployed at the time of his arrest.
7.
The
appellant's attorney placed on record that the appellant had a
serious drug dependency problem. He pleaded with the court to
exercise its powers to provide him help. I have extracted the
relevant passages from the record
[2]
:
' Your worship also noticed
..
that all kinds of
sentences meted out to him... Your worship.....I confronted the
accused as to what is going on in his life. He
honestly told me that
he has got a very serious drug problem........Your worship in
Afrikaans, "hy is verslaaf van dwelms"
and this addiction
turns him into
......
Whenever he sees
something that he can sell quickly...
.. ..
it shows he is a
kind of person who steals these minor items just to finance his drug
addiction.' I then confronted the accused
person as what, what must
[be] done to you?
....
he said to me....seeing that he is a
serious drug addict, he needs help, if the court has some powers to
commit him in any rehabilitation
centre
..
..for whatever
period.., he is prepped to do it because he says yes,
..
...in
prison he cannot stop this addition if he is still in prison...'
8.
In
response, the magistrate rejected the defence's plea for help. The
passages below demonstrate the magistrate vacillating between
accepting that the appellant indeed has a problem with drug
dependency and, rejecting same as if a simple solution existed for
people with drug dependency
[3]
:
'
There must be truth to what your
attorney said regarding your drug problem, because many of your
previous convictions are drug related
as well. Like poverty, drug
users cannot use that as an excuse to commit crime. Not only is the
offence serious... it is also prevalent
..
............
The community has an interest,
...
complainant
worked hard for his items and it is actually worse because you now
again stole from someone that you even know.
..
.... ..
Unfortunately,
now the final bell is ringing, your past has now caught up with you,
because today, the court sit here with your
full record and all
indications are that you do not want to stop your life of crime.
People are always very quick to
say
oh, I have got
a
problem I need
help when they are in
a
corner and facing
imprisonment, but they do not reach out and
ask
for help when
they are outside.
[4]
'
(quoted
verbatim).
9.
Appellant
was further warned that in the event he were to be convicted one more
time, he would be declared a habitual criminal.
I shall not concern
myself with the statements made by the court in connection herewith
save to say that the necessary safeguards
have already been put into
place for courts to heed before a person is declared a habitual
criminal. See in this regard, S v Van
Eck
2003 (2) SACR 563
(SCA)
para 10; S v Masisi
1996 (1) SACR 147
(0) para 152 d; and Smith v S
(A02/2013) (2013] ZAFSHC 120.
10.
I
s
this court at large then to interfere with the sentence imposed by
the sentencing court? In
Cornick
&
Kinnear
v The State
[5]
it was noted:
'
In
the absence of any misdirection on the part of the trial court an
appeal court should not interfere with the sentence imposed.....'
11.
In
The Director of Public Prosecutions,
Gauteng v Oscar Leonard Carl Pistorius
[6]
:
'......... ......
The
Constitutional Court reaffirmed this approach in S v Boggards
[2012]
ZACC 23
;
2013 (1) SACR 1
(CC) para 41 when it said '[o]rdinarily
sentencing is within the discretion of the trial court. An appellate
court's power to interfere
with sentences imposed by courts below is
circumscribed. It can only do
so
where there has been an
irregularity that results in
a
failure of justice; the court
below misdirected itself to such an extent that its decision on
sentence
is
vitiated; or the sentence
is so
disproportionate or shocking that no reasonable court could have
imposed it'. See also S v Ma/gas
2001 (1) SACR 469
(SCA) para 12 and
S v Hewitt
[2016] ZASCA 100
;
2017 (1) SACR 309
(SCA) para 8.'
12.
In
reading the record and considering the sentence imposed by the court
a quo, one accepts that there had not been a probation officer's
report to assist the court with pertinent information relating to the
full nature of the appellant's drug decency problems. However,
when
interrogated closely, and although the SAP69 on its own can never
reveal the circumstances that led the appellant to commit
the crimes
in question, it is apparent that from the age of 14 and before
appellant turned 16, he already had received three convictions,
two
of which relate to theft and or possession of stolen property and the
third, to drugs. Thereafter, a pattern began of a petty
thief who was
in and out of gaol. The punishment meted out by the courts suggests
that the offences did not carry much gravity,
notwithstanding the
legal descriptions.
13.
Appellant's
attorney made the submission to the court that notwithstanding the
periods he had spent in goal, appellant had not been
rehabilitated.
It is regrettable that the court did not consider to invoke the
provisions of section 36 of the Prevention of and
Treatment for
Substance Abuse Act (No. 70 of 2008), (the Act). I refer in
particular to section 36 of the Act, which provides:
'Committal of person to treatment
centre after conviction:
1.
A court convicting a person of any
offence may in addition or in lieu of any sentence in respect of such
offence order that such
person be committed to a treatment centre if
the court is satisfied that such person is a person contemplated in
section 33(1)
and such order, for the purposes of this Act, must be
regarded as having been made in terms of section 35.
2.
An order in terms of subsection (1) may
not be made in addition to any sentence of imprisonment, whether
direct or as an alternative
of a fine, unless the operation of the
whole sentence is suspended.
(a)Where a court has referred a person to a
treatment centre under subsection (1) and such person is later found
not to be fit for
treatment in such treatment centre, he or she may
be dealt with in accordance with section 276A(4) of the Criminal
Procedure Act.
(b)For the purposes of paragraph (a), the
expression "probation officer or the Commissioner" in
section 276A(4) of the
Criminal Procedure Act must be construed as
the manager of the treatment centre or a person authorised by him or
her for the purposes
of this Act.'
14.
Section 33 (1) of the Act reads:
'Admission of involuntary service
user to treatment centre
1.
An
involuntary service user, except those referred to in sections 36 and
40, may not be provided with treatment, rehabilitation
and skills
development at a treatment centre unless a sworn statement is
submitted to a public prosecutor by a social worker, community
leader
or person closely associated with such a person, alleging that the
involuntary service user is within the area of jurisdiction
of the
magistrate's court to which such prosecutor is attached and is a
person who is dependent on substances and-
(a)
is a danger to himself or herself
or to the immediate environment or causes a major public health risk;
(b)
in any other manner does harm to
his or her own welfare or the welfare of his or her family and
others; or
(c)
commits a criminal act to sustain
his or her dependence on substances.'
15.
The definition section of the Act
describes an involuntary service user as:
"' involuntary service user"
means a person who has been admitted to a treatment centre upon
being-
(a) convicted of an offence and
has in addition to or in lieu of any sentence in respect of such
offence been committed to a treatment
centre or community based
treatment service by a court;'
16.
Based
on the extensive record of appellant's previous convictions, his
personal circumstances and the offence in question, this
court agrees
that the sentencing court's discretion was not properly exercised. In
Damgazela v The State
[7]
it was noted that:
'Appellate interference in
respect of sentence on the striking disparity criterion is only
competent in instances where the appellate
court has formed
a
definite view as
to the sentence it would have imposed and where the degree of
disparity between that sentence and the one imposed
by the sentencing
court is so striking that interference on appeal is warranted.
[8]
17.
The
difficulty facing this court however is the absence of the necessary
investigation report regarding the extent of the appellant's
drug
problem, the nature and methods of intervention that are considered
appropriate to address the problem, and finally, the probation
officer's recommendation as to which center/s may be appropriate in
the circumstances of the appellant for the purposes of detoxification
and rehabilitation. Nonetheless, having considered the circumstances
of the appellant, the offence and its surrounding circumstances,
we
agree that the appeal must succeed.
The
following order is made:
(i)
The appeal succeeds.
(ii)
The sentence imposed by the court below
is set aside and replaced with the following:
'The appellant is sentenced to
5
years imprisonment.
The sentence is further antedated to 21
September 2016.'
NN BAM
ACTING
JUDGE OF THE HIGH COURT,
PRETORIA
I AGREE, AND IT IS SO ORDERED,
TAN MAKHUVELE
JUDGE
OF THE HIGH COURT,
PRETORIA
DATE
OF HEARING:
20 May 2019
DATE OF
JUDGMENT:
18
July 2019
APPEARANCES
APPELLANT'S COUNSEL:
MRS
MOENG
Pretoria Justice Centre
206 Church Street, Pretoria
RESPONDENT'S
COUNSEL:
Adv R MOLOKOANE
(Office of the DPP, Pretoria)
[1]
Act 105 of 1997 as amended
[2]
Page 14, paragraph 15 of the record
[3]
Page 17, line 21 of the record
[4]
Page 19 paragraph 10
[5]
[2007] SCA 14 (RSA) para 46
[6]
(950/2016) [2017) ZASCA 158 (24 November 2017) para 17
[7]
(633/09)
[2010] ZASCA 69
(26 May 2010). para 16
[8]
S
v Pieters
1987 (3) SA 717(A)
at 734F-I; S
v Matlala
2003
(1) SACR 80
(SCA) at para 10.