About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2017
>>
[2017] ZAGPPHC 821
|
|
Dladla v S (A139/2016) [2017] ZAGPPHC 821 (20 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
number: A139/2016
Date:
20/02/2017
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
SIFISO
MLAMBO
DLADLA
APPELLANT
And
THE
STATE
RESPONDENT
JUDGMENT
MDALANA-MA
Y/SELA AJ.
(1)
The appellant, Mr Sifiso Mlambo Dladla was charged in the Regional
Magistrate's Court, Springs with six counts of theft,
and one count
of housebreaking with the intent to steal and theft. The appellant
pleaded guilty on all seven counts. He was convicted
of all counts
and was sentenced to five (5) years' imprisonment on each count. The
trial court ordered the sentences on count one
and two to run
concurrently, count three and four to run concurrently and count five
and six to run concurrently. The appellant
was sentenced to an
effective term of twenty (20) years' imprisonment. The trial court
granted the appellant leave to appeal against
the sentence only. The
appellant was legally represented throughout the trial proceedings in
the Regional Magistrate's Court.
(2)
The facts giving rise to the appellant's conviction and sentence are
these. On 11 February 2010 the appellant stole a
motor vehicle, City
Golf of Moeketsi lshmail Mosio. On 12 August 2010 the appellant broke
open and entered the house of Tebogo
Mafodi, and stole two DVD
players, two laptops, amplifier, microwave, toaster, external hard
drive, camera, kettle, USB 3G card,
groceries, clothes and legal
reptor 350 CC, motor cycle. On 9 September 2011 the appellant stole a
motor vehicle, Ford Bantam bakkie
of Njabulo Peter Mlanga. On 8 March
2012 the appellant stole a motor vehicle, Nissan Sentra of Renier
Vermeulen. On 12 March 2012
the appellant stole a motor vehicle,
Mazda Rustler bakkie of Douw Gertbrand Grabler. On 5 April 2012 the
appellant stole a motor
vehicle, VW Polo of Marne Dry. On 5 November
2012 the appellant stole a motor vehicle, Nissan 1400 of Chanel Janse
van Rensburg.
(3)
The appellant did not testify in mitigation of sentence. His counsel
placed the following personal circumstances on record
from the bar.
He was 30 years old during the sentencing. He is married. He has two
children, a girl aged eight years and a boy
aged nine years at the
time he was sentenced. His highest academic achievement
is Grade 11. He was self-employed owning
a carwash and a window
tinting business, and earned R300 per week. He is a first offender.
He was shot and lost his leg during
his arrest. He spent one year and
two months in prison awaiting trial. He pleaded guilty on all
counts.
(4)
Before us, counsel for the appellant contended that the trial court
misdirected itself in over-emphasizing the seriousness
of the offence
at the expense of the personal circumstances of the appellant.
(5)
In considering an appropriate sentence on appeal one must not lose
sight of the settled principle of law that sentencing
is
pre-eminently a matter for the discretion of the trial court.
However, a court of appeal may interfere with the sentence imposed
provided the trial court materially misdirected
itself or where the sentence imposed
is
shockingly inappropriate
[1]
.
(6)
In sentencing, the trial court has a wide discretion at deciding
which factors should be allowed to influence the court:
(a) in
determining the measure of punishment; and (b) in determining the
value to attach to each factor taken into account
[2]
.
A failure to take certain factors into account or an improper
determination of the value of such factors amounts to a misdirection,
but only when the dictates of justice carry clear conviction
that an error has been committed in this regard
[3]
.
(7)
A mere misdirection is not by itself sufficient to entitle a court of
appeal to interfere with the sentence; it must be
of such a nature,
degree, or seriousness that it shows, directly or inferentially, that
the court did not exercise its discretion
at all or exercised it
improperly or unreasonably
[4]
.
(8)
In scrutinising the trial court's judgment on sentence, it is clear
that it took all the relevant factors pertaining to
the circumstances
under which the offences were committed and the appellant's personal
circumstances fully and properly into account.
In deciding on the
appropriate sentences, it gave weight to all these factors. I am not
convinced that it misdirected itself at
all, nor that it did not
properly or reasonably exercise its discretion.
(9)
The appellant was 26 years old at the time of the commission of the
offences and was 30 years old at the time of trial.
It has been
contended by his counsel that he was relatively young and further
that there are prospects of rehabilitation, as he
was self-employed.
In S v Matyityi
[5]
,
PONNAN JA remarked:
"In
my view a person of 20 years or more must show by acceptable evidence
that he was immature to such an extent that his immaturity
can
operate as a mitigating factor. At the age of 27 the respondent could
hardly be described as a callous youth. At best for him,
his
chronological age was a neutral factor. Nothing it
served, without more, to reduce his moral blameworthiness...
"The
appellant in the present case, just like the appellant in S v
Matyityi
[6]
, chose not to go into the box, and we
have been told nothing about his level of immaturity or any other
influence that may have
been brought to bear on him, to have caused
him to act in the manner in which he did.
(10)
Traditional objectives of sentencing include retribution, deterrence
and rehabilitation. It does not necessarily follow that
a shorter
sentence will always have a greater rehabilitative effect.
Furthermore, the rehabilitation of the offender is but one
of the
considerations when sentence is being imposed. Surely, the
nature of the offence related to the personality of the
offender, the
justifiable expectations of the community and the effect of a
sentence on both the offender and society are all part
of the
equation
[7]
.
(11)
It was contended further that the trial court misdirected
itself in not properly considering the cumulative effect
of the
sentences imposed and that the imposed effective sentence of twenty
(20) years' imprisonment is disproportionate. The trial
court
factored in the cumulative effect of the ultimate number of years
imposed by ordering some sentences to run concurrently.
The offences
were committed at different places and at different times. They were
committed over a considerable length of time.
There is no doubt that
all the offences forming the subject matter of this appeal are
serious and have to be punished seriously.
Also I accept that they
were not of a violent character. The offences involve theft of motor
vehicles and other valuable goods
and the appellant was selling the
stolen goods. The appellant on count two broke into the person's
house wherein the complainant
believed himself to be safe. He then
removed valuable goods. Clearly he committed these offences for his
personal gain and financial
reasons. The offences committed by the
appellant are prevalent in our country and the sentences imposed are
justified by the interests
of the society. The personal circumstances
of the appellant and the direct consequences of the sentences imposed
cannot and should
not be allowed to outweigh the seriousness of the
offences. The effective sentence of twenty (20) years'
imprisonment
is not disproportionate in the
circumstances of this case.
(12)
It is not wrong that the natural indignation of interested persons
and of the community at large should receive some recognition
in the
sentences that courts impose, and it is not irrelevant to bear in
mind that if sentences for serious crimes are too lenient,
the
administration of justice may fall into disrepute and injured persons
may incline to take the law into their own hands
[8]
.
(13)
I am satisfied in these circumstances that there is no legal basis to
interfere with the sentences and they must stand. The
following order
is accordingly proposed:
The
appeal is dismissed.
Acting
Judge MP Mdalana-Mayisela
Judge
JW Louw
Case
number : A139/2016
Matter
heard on : 16 February 2017
For
the Appellant: Adv F Isola
Instructed
by: Pretoria Justice Centre
For
the Respondent: Adv MJ Nethononda
Instructed
by: Director of Public Prosecutions
Date
of Judgment : 20 February 2017
[1]
See S v Kruger 2012C1l
SACR 369 at 372 paragraph 8
[2]
See S v Fazzie and
Others 1964141 SA 673 A at 384B
[3]
See S v Fazzie
(
supra)
at 684 B-C
[4]
See S v Pillay
1977(4) SA 531 A at 535 E-G
[5]
2011111SACR40 SCA at48 paragraph 14
a-b
[6]
Supra
[7]
See
DPP, Kwazulu-Natal v Ngcobo 2009!21 SACR 361 SCA at 367 paragraph 22
[8]
See R v Korg 1961(1\ SA 231 A at 236b