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South Africa: North Gauteng High Court, Pretoria
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[2018] ZAGPPHC 694
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Simelani v S (A697/2016) [2018] ZAGPPHC 694 (23 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO OTHER JUDGES
(3)
REVISED.
Appeal
Case No:
A697/2016
Court
a quo
Case No:
SH489/2015
Date
of hearing:
5 February 2018
Date
of judgement:
23
March 2018
In
the appeal between:
THAMI
MAXWELL
SIMELANI
Appellant
and
THE
STATE
Respondent
JUDGMENT
DIEDERICKS
(AJ)
[1] This
is an appeal against the sentence imposed on the Appellant on a
charge of housebreaking.
[2]
The
appeal was heard following leave granted to appeal against the
sentence only, which leave was granted on petition in terms of
Section 309(c) of Act 51 of 1977, by Judges L.M. Molopa-Sithosa (J)
and P.L. Nobanda (AJ) on 13 September 2016.
[3]
On
the 16
th
of March 2016 the Appellant was charged on a charge of housebreaking
in that on the 16th of October 2015, in the Regional Division
of
Gauteng, he unlawfully and with intent to steal, broke open and
entered a business premises of one Hein de Swart, where he stole
the
following items, Le. four Lenovo computers, one monitor and one
radio, the property in the lawful possession of the said Hein
de
Swart.
[4]
The
Accused pleaded guilty on this charge on the 16
th
of March 2016, and was found guilty as charged on the same day.
[5]
The
case was then postponed to the 7th of April 201e for a correctional
supervision report.
[6]
Having
heard the evidence of the Accused and without a correctional
supervision report, the Appellant was sentenced to eight years
imprisonment.
[7]
The
reasons advanced by the Department of Correctional Services for not
providing a report was that the person living at that address,
a
certain Mr. Thobane, mentioned that the Accused is unknown to him.
Mr. Thobane only knows the Appellant's caregiver, a certain
Mr. Mosa
Zwawa, who was a tenant at the said address and who also no longer
lives there.
[8]
The
following common cause facts pertaining to the crime committed as
well as mitigating- and extenuating circumstances were considered
by
the Magistrate:
1.
Personal
circumstances of Appellant:·
(a)
He
was 23 years of age on the day of his sentence, obtained Grade 12
education and was held in custody since the 15
th
of October 2015 (then already five months);
(b)
He
is not married, but has three children, i.e. a set of twins aged 5
years and a third child aged 9 months;
(c)
He
was a first offender and there were no other cases pending against
him;
(d)
He
did not have permanent employment and earned a living by doing "piece
jobs11 earning approximately R150.00 to R250.00 per
day.
2.
Stolen goods
(a)
All stolen· goods mentioned in
the Charge Sheet were retrieved and handed back to the owner;
(b)
The value of the stolen goods is
unknown.
9[]
In
view of the above facts I considered the sentence of 8 (eight) years
imposed on the Appellant.
[10] This
Court considered sentences in comparable cases, in particular the
following cases:
S.
v. Skhosana,
2016(1)
SACR (GJ);
S.
v. Beyl,
2011(2)
SACR 23 (ECG);
S.
v. Sh/burl,
2004(2) SACR 314
(VV) .
[11]
The case of
S.
v. Shiburl
mentioned
above has many similarities, compared to the case
in
casu.
[12]
The following were taken into
consideration in mitigation in the case of
S.
v. Shiburi;
1.
Appellant
was a first offender;
2.
The
Appellant was in custody for a month;
3.
The
stolen radio was returned;
4.
The
Appellant was gainfully employed while his wife was not;
5.
The
Appellant was married and had dependants.
[13]
The
majority of the Full Court in
S.
v.
Shiburi
found a sentence of 5
(five) years imprisonment appropriate.
[14]
It is trite that this Court will only
interfere with the sentence of the Court
a
quo
in the event that this Court
finds that the sentence is disappropriate.
S.
v. Vilakazi,
2012(6)
353 SA (SCA).
[15]
Having
regard to the circumstances
in casu,
I am of the
view
that the sentence of 8 (eight) years
imposed on the Accused inappropriate.
[16]
In my view, a sentence of 5 (five) years
would be appropriate.
[17]
The appeal therefore succeeds against
the sentence and the following order is made:
1.
The appeal against the sentence is
upheld;
"The
Accused is sentenced to 5 (five) years imprisonment."
F.
DIEDERICKS
ACTING
JUDGE OF THE GAUTENG DIVISION, PRETORIA
I
agree
E.M.
KUBUSHI
JUDGE
OF THE GAUTENG DIVISION. PRETORIA
Advocate
for Appellant:
Adrian Thompson
Advocate
for Respondent:
Phyllis
Vorster