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[2016] ZAGPPHC 1092
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Xulu v S (A712/2015) [2016] ZAGPPHC 1092 (14 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
HIGH COURT, PRETORIA)
14/12/2016
Case
no: A712/2015
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
SIBUSISO
PETROS
XULU
Appellant
and
THE
STATE
Respondent
JUDGMENT
MAGARDIE
AJ
1.
The appellant herein, an adult male military officer in the South
African Defence Force at the time, was convicted on 19 June
201S,
before the Gauteng Regional Court after pleading guilty on a charge
of theft of an RS automatic rifle. On 23 July 2015, the
appellant was
sentenced to four (4) years imprisonment. In addition, the court a
quo
also declared the appellant unfit to possess a firearm in
terms of the provisions of section 103(1) of the Firearms Control Act
60 of 2000.
2.
The appellant applied before the court a
quo
for leave to
appeal against sentence and same was granted on 14 August 2015.
3.
The synopsis of the facts that resulted in the appellant's conviction
were that, on 30 October 2014, at the Waterkloof Military
Base, the
appellant unlawfully and intentionally stole one fully automatic RS
rifle which was the lawful property of the South
African National
Defence Force. When the appellant was confronted by the Military
Police, he immediately admitted to the offence
and took them to his
place of abode where the rifle was kept. The appellant was legally
represented throughout the proceedings.
On 19 June 2015, the
appellant admitted all the elements of the crime and after the court
a
quo
was satisfied that the appellant admitted all the
elements of the crime of theft, it proceeded to convict him of theft
as charged.
4.
In mitigation of sentence it was submitted that the appellant was 28
years of age at the time of commission of the crime. The
appellant
immediately cooperated with his employer and the rifle was recovered
with the appellant's assistance. The appellant pleaded
guilty to the
crime from the outset and cooperated during the investigation. The
appellant was a first offender and had no previous
convictions. The
appellant had demonstrated remorse from day one. The appellant was
the father of a 6 years old daughter who did
not stay with the
appellant. The appellant was the breadwinner and took care of his
family at home. After the incident, the appellant
was suspended from
employment. During the appellant's suspension, he attended sessions
with a social worker at his place of employment.
At the time of the
incident, the appellant was aware that the rifle could not fire
ammunition. The submissions that were made on
behalf of the appellant
were that the appropriate sentence would be correctional supervision,
a fine, alternatively a suspended
sentence or a custodial sentence.
5.
The aggravating factors that were placed before the court a
quo
was the fact that the firearm that was stolen was a fully
automatic rifle that was the property of the SANDF, the appellant's
employer.
The appellant had planned the incident, he took the rifle
home and admitted of wanting to deprive his employer of permanent
ownership
of the rifle. The problem of illegal firearms that are
easily available on the streets was highlighted. The prosecution was
in
favour of a sentence that would fit the crime.
6.
Mr Riaan Roos, a staff sergeant, who is employed at the northern
military police regional HQ, at the specialist investigation
branch,
testified on behalf of the state on the theft of firearms within the
SANDF. Roos is not a ballistic expert. He testified
that on average,
an estimate of 2 firearms get stolen from the SANDF per month. Also,
that military vehicles are used in the commission
of crimes. Further,
that even though security measures are put in place, soldiers have
access to these firearms and theft of firearms
still occur. In this
particular case, Roos testified that the firearm was issued to the
appellant for purposes of a practice session
for a parade. The
appellant then went to the store men and drew a second rifle which he
placed in the boot of his vehicle. The
appellant then handed in the
initial rifle that was issued to him and made a false entry in the
register regarding the second rifle.
Roos explained that this
specific rifle was used for parades, in which case it would not have
any ammunition in it. It would also
be impossible to fire live rounds
as the firing pin to set off the rounds of ammunition was removed.
7.
The court a
quo
requested pre-sentencing reports. The reports
by the probation officer and correctional service were handed in as
exhibits D and
E respectively. The reports are thorough and the
underlying cause for the crime can immediately be extrapolated
therefrom. It is
apparent from the report of Ms Tunzi, that the
appellant promised his parents to build them a house the moment he
started
working. The appellant made loans at Absa bank and Capitec
Bank but soon realised that the project was above his means and ended
up in financial debt. The appellant could no longer maintain his
family, pay for his child's school fees and transport. The appellant
then approached a certain Thabang who was a loan shark, and borrowed
an amount of R10 000.00. Soon the appellant could also not
repay
Thabang. Thabang threatened to collect his money from the appellant
on a Saturday. It was during this period that the appellant
participated in a parade for a certain warrant officer who was
retiring, and decided to take one R5 rifle that he was expected
to
use during the parade, to protect himself from Thabang over that
weekend. Upon his arrival at work the following Monday, the
appellant
was confronted about the missing R5 rifle. The appellant immediately
admitted that he took the rifle home on 30 October
2014. The
appellant accompanied the military police to his house where the
firearm was kept. The appellant was subsequently suspended
from work
and had to report his presence to the gate on a daily basis. He was
however not allowed to enter the military premises.
The appellant
also attended three sessions with the social worker at his place of
employment who referred the appellant to a debt
councillor. The
sessions with the debt councillor seems to have yielded a fruitful
outcome in that the appellant was in a position
to reduce his debt.
It was reported that the appellant was very emotional during the
interviews and regretted his actions. He described
the motive for the
offence as a desperate attempt to protect himself. Interviews were
also held with the appellant's supervisor
who described the appellant
as a good, quiet person who enjoyed doing his work and was one of the
best employees. The report recommends
correctional supervision in
terms of section 276(1)(h) of the Criminal Procedure Act, 51 of 1977
(as amended) as an alternative
sentence. The report specifically
militates against imprisonment even though the appellant committed a
serious crime; the reason
seems to be that the motive for the offence
was self-protection. The appellant was described as confused and
scared as a result
of his financial crisis.
8.
The report by the correctional officer, Ms Matseke, also recommends
that the appellant be considered for a sentence in terms
of
section
176(1)(h)
of the
Criminal Procedure Act.
9.
Notwithstanding
the recommendations contained in the pre-sentencing
reports, the court a
quo
was of the view that correctional
supervision would not be an appropriate sentence. Consequently, the
court a
quo
imposed a sentence of 4 years direct imprisonment.
It is this sentence that the appellants want this court to set aside.
10.
It is trite that sentencing
falls primarily within the discretion of the trial court. In
considering sentence, the trial court should
take into account the
crime, the criminal and the interest of society, the one not
outweighing the other. The approach of the triad
consisting of the
crime, the offender and the interest of society was enunciated in S v
Zinn.
[1]
The appeal court may only
interfere with the sentence when it is demonstrated that the trial
court has not properly and reasonably
exercised its discretion in
imposing sentence. The court of appeal is entitled to interfere with
sentence if same is disturbingly
inappropriate and so totally out of
proportion with the offence or vitiated by misdirection showing that
the trial court exercised
its discretion unreasonably.
[2]
11.
In addressing sentence one must
also be mindful of the principles as set out in S v
Rabie
[3]
:
"Punishment should fit the
criminal
as
well
as
the crime, be fair to society, and
be blended with a measure of mercy according to the circumstances."
12.
In S v
Smith
[4]
it was held that:
"Courts must guard against an
over-eager imposition of exemplary sentence and must not
over-emphasise the gravity of the offence
and the interest of the
community at the expense of the interest of the personal
circumstances of the particular offender.
"
13.
In
S
v
R
[5]
Kriegler J said that by
introducing correctional supervision, the Legislature had provided a
method of imposing finely tuned sentences
without resorting to
imprisonment with all its known disadvantages for both the prisoner
and the broader community. At 220 G-H
he observed that:
"Ons straftoemeting het egter
nou 'n heel nuwe
fase
betree. Korrektiewe toesig is weliswaar
'n
as
nog-onbeproefde vonnisopsie maar dit blyk reeds
uit die magtigende wetgewing dat dit groot potensiaal inhou. Wat
veral tref, is
die veelsoortigheid daarvan. By nadere ondersoek word
dit duidelik dat die benaming "korrektiewe toesig"
nie soseer
'n vonnis beskryf nie maar 'n
versamelnaam is vir 'n wye verskeidenheid maatreels waarvan die
enkele gemeenskaplike kenmerk is dat hulle buite die gevangenis
toegepas word."
14.
In S v Samuels
[6]
,
Ponnan JA pointed out that:
"An enlightened and just penal
policy requires consideration of a broad range of sentencing options
from which an appropriate
option can be selected that best fits the
unique circumstances of the case before the court. It is trite that
the determination
of an appropriate sentence requires that proper
regard be had to the well-known triad of the crime, the offender and
the interests
of society. After all, any sentence must be
individualised and each matter must be dealt with on its own peculiar
facts. It must
also in fitting cases be tempered with mercy.
Circumstances vary and punishment must ultimately fit the true
seriousness of the
crime. The interests of society are never well
served by too harsh or too lenient a sentence. A balance has to be
struck."
15.
It is without a doubt that the offence of theft of a firearm is on
its own a very serious offence. It is even more so when a
member of
the SANDF is the culprit. Our society is afflicted by violent crimes
committed with the use of firearms.
16.
When sentencing, courts must differentiate between those offenders
who ought to be removed from society and those who, although
deserving of punishment, should not be removed. With appropriate
conditions, correctional supervision can be made a suitably
severe punishment, even for persons convicted of serious
offences. As already stated elsewhere herein above, it is required
of
the court to strike a balance between the interest of society, the
seriousness of the offence and the personal circumstance
of the
accused.
17.
As pointed out by Kriegler J as he then was in
S v R
above,
the introduction of correctional supervision ushered in a new phase
in our criminal justice system, clearly distinguishing
between
those offenders who ought to be removed from society by being
incarcerated and those who, even though deserving of punishment,
should not be removed. The appellant's circumstances provide a
compelling case for a non-custodial sentence.
18.
I am inclined to agree with the submissions of the appellant's
counsel that the sentence imposed by the court a
quo
is severe
and consequently disproportionate when regard is had to the offence
at issue herein. However, this should not be understood
to be
downplaying the serious of the actions of the appellant. As already
stated, the act of theft of the firearm that the appellant
admitted
is indeed very serious.
19.
I am not swayed that, given the circumstances traversed above, the
court a
quo
exercised its discretion judicially. I am of the
view that the sentence imposed is not only harsh, but also strikes
one with a sense
of shock to conclude that it is disproportionate.
Having arrived at this conclusion, it follows that I am entitled to
interfere
with the sentence of the court a
quo.
I have
considered the fact that the firearm was not only recovered, but also
that it was not used in any act of further crime and
in any event it
was not capable of firing any ammunition even at the time of theft.
The appellant was a first offender, he pleaded
guilty from the very
beginning. It is against the consideration of the forgoing factors
and circumstances that the sentence of
direct imprisonment is not
appropriate.
20.
In the result, the following order is made:
20.1. The appeal against sentence is
upheld.
20.2. The sentence imposed by the
trial court is set aside and substituted by the following sentence:
20.3. In terms of
section 276(1)(h)
of
the
Criminal Procedure Act 51 of 1977
, the accused is sentenced to
three (3) years correctional supervision, on the following
conditions:
20.3.1.
That the accused be placed under HOUSE ARREST to such an extent that
he can be controlled and therefore, as far as possible,
not be of any
danger to the community, provided that, depending on his behaviour,
the conditions of the HOUSE ARREST can be relieved
to some extent,
but that HOUSE ARREST will apply for the duration of the sentence,
From
17:00pm to 06:30am on workdays, and
From
15:00pm to 06:30am on days when he is not working.
Provided
that HOUSE ARREST will not be applicable during the following period:
(i)
Community Service:
will
consist of cleaning at Tshepong Hospital (TB) Hospital in
Atteridgeville on Saturdays from 08:00am until 16:00pm, and
(ii)
Programmes
: which will be
Self-Image Behavioural conduct relating to self-conduct programmes,
Responsibility Acceptance Programmes, as well
as Life Proficiency
Programmes are recommended.
20.3.2. That the accused shall perform
16 HOURS COMMUNITY SERVICE for every month of sentence to comply with
the community expectations
in terms of retribution and compensation
of the crime with the provision that a part (maximum a third) could
be suspended if he
gives co operation and if his behaviour
justifies it. Furthermore, that the Commissioner may give him 1 HOUR
ADDITIONAL COMMUNITY
SERVICE for every hour that he fails to do
community service.
20.3.3. That the accused shall subject
himself to treatment programmes as determined by the Commissioner of
Correctional Services,
which are applicable to his specific needs and
programmes, with the aim of rehabilitating the accused and to better
prepare him
to accept his responsibilities as a member of the
community.
20.3.4. That the accused may NOT
CHANGE his RESIDENTIAL OR WORK ADDRESS without prior notification to
the Commissioner of Correctional
Services.
20.3.5. That the accused shall, for
the full duration of the sentence, refrain from the USE/ABUSE OF
ALCOHOL OR THE USE OF DRUGS
other than on prescription by a medical
practitioner.
20.3.6. That the accused shall subject
himself to the monitoring agency by the Commissioner of Correctional
Services and shall comply
with all reasonable directives issued by
the Commissioner regarding the execution and administration of his
sentence.
20.3.7. To control and discourage
chemical dependency, the accused must declare himself to be willing
to undergo tests at his own
cost, if at all possible.
20.4. The declaration that the
accused, in terms of
section 103(1)
of Act 60 of 2000, is unfit to
possess a firearm remains intact.
20.5. In terms of section 282 of Act
51 of 1977, the sentence imposed by this court is antedated to 23
July 2015.
___________________
MAGARDIE
AJ
I
agree and it is so ordered.
__________________
RABIE
J
[1]
1969 (2) SA 537
(A) at 540G
[2]
S v Pillay
1977 (4) SA 531
(A) at 535E-G, S v Ncheche
[2005] ZAGPHC 21
;
2005 (2) SACR
386
W, S v Salzwedel & Others
1999 (2) SACR 586
SCA
[3]
1975 (4) SA 855
(A) at 862G-H
[4]
2002 (2) SACR 488
(C) at 490H-J
[5]
1998 (1) SACR 209 (A)
[6]
2011 (1) SACR 9
(SCA) para 9-10