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[2017] ZAGPPHC 206
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Vundla v S (A226/2016) [2017] ZAGPPHC 206 (12 April 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISON, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
Case
Number: A226/2016
Reportable:
No
Of
interest to other judges: No
Date:
12.4.2017
In
the matter between:
THABO
VUNDLA.
Appellant
and
THE
STATE
Respondent
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J
[1]
The appellant was convicted of housebreaking with the intent
to steal and theft and was sentenced to four years' imprisonment.
[2]
This appeal is only against sentence.
[3]
The appellant was 34 years old at the time of the offence. At
approximately 12h00 in the afternoon the appellant broke into a flat
utilising a screwdriver to force the
lock of the door open. He stole a remote control
worth
approximately R 300, 00. The remote control was recovered and
returned to the complainant.
[4]
Ms
Moloi, counsel for the appellant, submitted that the
four year term of direct imprisonment is shockingly harsh and induces
a sense
of shock, especially if one has regard to the personal
circumstances of the accused and the value of the item that was
stolen.
[5]
Ms Coetzee, counsel for the State, referred, quite correctly,
to the well- known authority of
S v Rabie
1975 (4) SA 855
A,
in which it was stated that sentencing is
pre-eminently a matter for the
discretion of the trial court and that a court of appeal
should be careful not to erode such discretion.
[6]
In imposing the sentence of four years the
court
a quo
placed great emphasis on the
prevalence of the crime in its area of jurisdiction. Although society
expects courts to punish
criminals harshly, Ms Moloi with reference
to two reported cases, submitted that
the
prevalence of a certain crime in a
court's area of jurisdiction should not override the basic principles
pertaining
to sentence.
[7]
In
S v
Mklakaza
1997 (1) SACR 515
SCA,
the Supreme Court of Appeal held as follows at 518e:
"The
object of sentencing is not to satisfy public opinion but to serve
the public interest
“
[8]
In overemphasising the prevalence of the crime, the court
a
quo
did not exercise its discretion judicially and properly. The
aforesaid conduct resulted in the sentence being disturbingly
inappropriate
and as a result, this court may interfere with the
sentence.
[9]
In the premises, I propose that the sentence be set aside.
[10]
In considering an appropriate sentence, I take into account
that the appellant, aged 34 years, was a first offender, pleaded
guilty
to the charge and showed remorse. The appellant was in custody
for five months prior to his conviction and sentence.
[11]
The value of the stolen item is relatively small, to wit R
300,00. One should, however, bear in mind that the complainant also
had
to repair the broken lock of the door.
[12]
The crime is, no doubt, serious. The court
a quo
correctly
held that innocent hard working members of the community should be
protected against the selfish acts of criminals
such as the
appellant. Would-be offenders should also be deterred by the sentence
imposed.
[13]
Ultimately the court should impose a sentence
that is proportional to the circumstances under which the crime
was committed and that reflects the appellant's moral
blameworthiness.
[14]
The principle that direct imprisonment for first offenders
should, as far as possible, be avoided in order to afford such an
offender
an opportunity to rehabilitate is specifically appropriate
in the present circumstances. Imposing a wholly
suspended
sentence, complies with the
aforesaid
principle
and has the added benefit that the proverbial "sword is hanging
over the appellant's head". Should the appellant
not utilise the
opportunity to reform, he will eventually serve his sentence.
ORDER
In
the premises, I propose the following:
1.
The appeal against sentence is upheld.
2.
The sentence of four years' imprisonment is set aside and replaced by
the following sentence:
“
The
accused
is
sentenced to four
years'
imprisonment, wholly
suspended
for five years on condition that the accused does not commit
the offence of housebreaking with
the
intent
to
steal
and
theft
in
the
period
of
suspension.
”
3.
The sentence is antedated to 15 September 2015.
__________________________________
N
JANSE VAN NIEUWENHUIZEN J
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
I
agree
__________________________________
MANYATHI
AJ
ACTING
JUDGE F THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
It
is so ordered.
APPEARANCES
Counsel
for the Appellant:
Ms M.B. Moloi
Instructed
by:
Legal Aid South Africa
Pretoria Justice Centre
(012 401 92001072 443
0328)
Counsel
for the Respondent:
Advocate A. Coetzee
Instructed
by:
Director of Public Prosecutions
(084 250 0118/012 351
6700)