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[2016] ZAGPPHC 121
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Venter v S (A686/15) [2016] ZAGPPHC 121 (29 March 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
[GAUTENG
DIVISION, PRETORIA]
CASE
NO: A686/15
DATE:
29 MARCH 2016
MARKO LUDEWIKUS
VENTER
..........................................................................................
Appellant
And
THE
STATE
...........................................................................................................................
Respondent
JUDGMENT
SKOSANA AJ
[1] The appellant in
this case has brought an appeal only against the sentence imposed on
him by the judgment of the learned magistrate,
Mr Le Roux.
[2] The appellant
pleaded guilty and was found guilty of house breaking with intend to
steal and theft. She was then sentenced to
five years direct
imprisonment.
[3] The relevant
facts are that the appellant went to the property of one Anne Smith
on 09 March 2015 at 15h00. He had gone to visit
the complainant and
discovered that there was no one at the house, he noticed that there
was a washing machine in the garage and
decided to steal it.
[4] He opened the
garage door took out the machine and sold it at a nearby pawn shop.
After being arrested, the machine was recovered
from the pawnshop and
returned to the complainant. The value of the machine was R2 631-00.
[5] The appellant
was 21 years of age at the time of the commission of the offence, he
was unmarried but had impregnated his girlfriend
and had one previous
conviction for a similar charge where he had been sentenced to 4
years imprisonment and had already started
serving the sentence at
the time of the judgment under consideration. 4 years’
imprisonment he received for the other offence
was being served under
correctional supervision in terms of section 276(1)(l) of the
Criminal procedure Act no. 51 of 1997.
[6] It appears that
after the appellant had been given the sentence of 5 years’
imprisonment, the correctional services informed
him that the total
number of years he has to serve is now 9 years and the correctional
supervision has fallen away. In other words,
he must serve 9 years
direct imprisonment
[7] In paragraph 1.6
of her heads of argument, counsel for the State also regards the
sentence of 5 years direct imprisonment to
be uon the heavier side”.
He also submits that the appellant was already serving a 4 year
sentence on a similar charge but
that does not seem to have played a
significant role in the reasoning of the magistrate when imposing the
5 years imprisonment
sentence.
[8] It seem to me
that, though the circumstances of the previous similar conviction are
unknown, they may either be similar or less
severe than the
circumstances of the present case. In fact, in the absence of
information in this regard, one has to assume in
favour of the
appellant or give the appellant a benefit of doubt in this regard.
[9] Further there
was a clear expression of remorse on the part of the appellant in
that he not only pleaded guilty but disclosed
all circumstances under
which the offence was committed. He was also only 21 years of age at
the time and in my view, he should
not be completely deprived of the
opportunity to repent or rehabilitate. It must also be noted that
there was no force used in
committing the offence and apparently no
damage was caused either to the stolen item or through forced entry
at the complainant’s
house.
[10] In my view, it
could not be said that the appellant was non-repentant in the light
of the previous conviction. Such conviction
clearly took place after
the commission of the present offence. To me it seems appropriate to
have ordered that the sentence in
the present case or a portion
thereof should run concurrently with the sentence imposed in the
previous similar conviction.
[11] In the
circumstances it is my view that the sentence of 5 years imprisonment
is so severe that it warrants interference by
this appeal court,
taking into account that the appellant will otherwise have to serve a
sentence of 9 years in total as indicated
above.
[12] In the
circumstances, I suggest that the following order be made:
[a] The appeal is
upheld.
[b] The appellant’s
sentence is reduced to 2 years imprisonment, one year of which he is
suspended for two years on condition
that the appellant is not found
guilty of an offence involving dishonesty.
DT SKOSANA
Acting Judge of
the High Court
I concur and it
is so ordered.
N JANSE VAN
NIEWENHUIZEN
Judge of the High
Court