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[2016] ZAGPPHC 1069
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Jordaan v S (A852/15) [2016] ZAGPPHC 1069 (20 December 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: A852/15
20/12/2016
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
In
the matter between:
JAN
LOURENS
JORDAAN
APPELLANT
and
THE
STATE RESPONDENT
JUDGMENT
NOBANDA
AJ
INTRODUCTION
[1]
On 20 June 2013, the Appellant, then 39 years old pleaded guilty to
one (1) count of housebreaking with intent to steal and
theft in the
Regional Court held at Klerksdorp.
[2]
On the same day the Appellant was found guilty as charged and
sentenced to eight (8) years imprisonment. The Appellant was legally
represented during the trial.
[3]
It appears from the record that the Appellant applied for leave to
appeal against the sentence on 25 June 2013. For reasons
not clear
from the record, it was never heard. Then, during May 2015, the
Appellant applied for condonation for the late filing
of his leave to
appeal. Leave to appeal was granted on 22 July 2015.
[4]
The Appellant was released on bail fixed at R300.00 on 27 May 2013
prior to plea and sentencing. The Appellant's bail was not
extended
pending appeal.
[5]
The appeal against sentence was heard on 5 September 2016.
GROUNDS
OF APPEAL
[6]
The Appellant contends that the trial court failed to consider and
take into account the Appellant's personal and mitigating
circumtances when imposing the sentence of 8 years imprisonment, in
inter alia
that:
-
the Appellant approached the Complainant and
confessed the crime to her;
-
all the stolen property was recovered still in a
good condition; the Complainant did not suffer any loss;
-
the Appellant did not waste the court's time but
instead plead guilty to the offence;
-
the Appellant was an unmarried 39 year old man at
the time; the Appellant has a five(5) year old son;
-
the Appellant was in custody since 4 December
2012 until his release on bail on 27 May 2013.
[7]
From the record filed, the Appellant testified that he did odd jobs
which paid him R400-R500 per week. Further that he was sure
he was
going to be re-hired by the mine that had previously retrenched him
which had re-opened. That he was the sole bread winner.
In addition,
the Appellant testified that he lives together with his fiancée
at his fiancée’s home together
with their 5
year
old son and his fiancée’s mother.
[8]
The Appellant further testified in mitigation of sentence that he was
remorseful and ashamed of his crime more particularly
since the
Complainant was related to him and she trusted him.
[9]
The Appellant requested that a community service sentence be imposed.
[10]
The State on the other hand contended that the entire sentence,
including the personal circumstances of the Appellant had been
considered by the trial court. That the Appellant had relevant
previous convictions for the same crime, some older than 10 years.
That although certain convictions fall away as previous convictions
after the expiry of 10 years in terms of Section 271A of the
Criminal
Procedure Act 51 of 1977 ("the Act") on certain conditions,
the previous convictions are indicative of the Appellant's
unrehabilitative character.
[11]
The State further contended that on 23 July 2009, the Appellant was
convicted of a similar offence and sentenced to 18 months
imprisonment suspended on certain conditions for five years. This
took place after the Appellant was released on parole on 6 December
2008 for a similar offence and other various offences after serving
nine years in prison. The day after being released on parole,
on 7
December 2008 the Appellant committed a similar offence.
[12]In
light thereof, the State contended that the Appellant is
unrehabilitative and the sentence imposed by the trial court should
stand.
APPLICABLE
LEGAL PRINCIPLES
[13]
It is trite law that the imposition of a sentence is pre-eminently
within the discretion of the trial court.
[14]It
is a long established principle of our law that the appeal court
should desist from altering the sentence imposed by the
trial court
except in circumstances where the sentence imposed is either totally
out of proportion to the gravity or magnitude
of the offence, or the
sentence evokes a feeling of shock or outrage or the sentence is
grossly excessive or insufficient or there
was an improper exercise
of discretion by the trial court or the interests of justice requires
it.
[1]
The
enquiry is enunciated in a number of cases by the Supreme Court of
Appeal.
[2]
[15]In
S v
Sadler
[3]
,
the
Supreme Court of Appeal stated thus:
"Account must
be taken of the admonition that the imposition of sentence is the
prerogative of the trial court and that the
exercise of its
discretion in that regard is not to be interfered with merely because
an appellate court would have imposed a heavier
or lighter sentence.
At the same time it has to be recognised that the admonition cannot
be taken too literally and requires substantial
qualification.
If
it were taken too literally, it would deprive an appeal against
sentence of much of the social utility it is intended to have.
It is said that where there exists a
"striking" or "startling" or
"disturbing
"
disparity between the
trial court's sentence and that which the
appellate court would have imposed,
interference is justified. In
such situations the trial court
's
discretion is regarded (fictionally
some might cynically say) as having been unreasonably
exercised"
(emphasis provided).
[16]
This principle was reiterated and confirmed by the same court, adding
that even in the absence of material misdirection by
the trial court,
the appeal court may be justified to interfere with the sentence
imposed by the trial court where disparity between
the sentence
imposed and that it would have imposed was so significant that it
could be described as "shocking", "startling"
or
"disturbingly inappropriate."
[4]
[17]
In expanding on this principle, the Supreme Court of Appeal in
S
v
Blignaut
[5]
sets out the
test as follows:
"
The
question is whether there was a material misdirection by the trial
court in the manner in which it weighed the factors relevant
to the
determination of sentence
or, if not,
whether the sentence imposed was in any event
so
shockingly inappropriate as to give rise to
the inference that there had been a failure to properly exercise the
sentencing discretion."(
emphasis
provided
).
COURT
A QUO
[18]
Ex facie
the record, the trial court appears to have
considered personal circumstances of the Appellant, the relevant
previous convictions
of the Appellant and the interests of the
society as a whole in sentencing the Appellant.
[19]
However, the trial court failed to balance the interests of the
Appellant as well in imposing the sentence that it did. For
example,
the trial court considered the chances that the Appellant was
previously given ranging from a long term sentence of 6
years for a
similar offence and an additional 7 years for other various crimes
whereinafter the Appellant was released under correctional
supervision on 23 September 2005 until 16 September 2008; the
sentence of 18 months imprisonment suspended for 5 years on certain
conditions imposed on 23 September 2009 for a similar offence
committed a day after the Appellant's parole ended and the fact that
the Appellant committed the offence so that he could buy alcohol with
the money, all of which are aggravating circumstances.
[20]
Nowhere in his reasoning does the Regional Magistrate deal with the
mitigating factors that the Appellant was the sole breadwinner;
had a
son who was about to start school; had confessed the crime to the
owner and had pleaded guilty; that the stolen goods have
been
recovered still in a good condition and that the Appellant was
remorseful and ashamed.
[21]
Failure or the manner in which the trial court weighed the factors
relevant to the determination of sentence is a material
misdirection
that gives rise to inference that there was failure to properly
exercise the sentencing discretion.
[6]
As such,
according to the test enunciated in
S
v
Blignaut
(supra)
once
the first leg of this test for intervention is satisfied, as it is
in
casu,
it
is unnecessary to consider the second leg of the test.
[22]
Notwithstanding, in addition, the trial court considered various
sentencing options ranging from a fine, correctional supervision
and
a longer or short term direct imprisonment. The Regional Magistrate
concluded that taking into account the suspended sentence
that will
come into effect and given the Appellant's history gleaned from his
previous convictions, it would not be in the interest
of the
community to give the Appellant a lighter sentence.
[23]
Accordingly, the sentence of 8 years direct imprisonment is in my
view "startlingly" or "disturbingly"
inappropriate in the circumstances and ought to be interfered
with.
[7]
[24]
As such, I propose the following order:
1.
The appeal is upheld;
2.
The sentence is set aside and in its place a
sentence of 5 years direct imprisonment is imposed;
3.
The sentence is ante-dated to 20 June 2013.
________________
P.L
NOBANDA
Acting
Judge of the High Court, Pretoria
I
AGREE.
_______________
N.
RANCHOD
Judge
of the High Court
[1]
S v Anderson
1964 (3) SA 494
(AD) at 495 C-E
[2]
S v Malgas
2001 (2) SA 1222
(SCA); S V Blignaut
2008 (1) SACR 78
(SCA) at 82 b-d; 5 v Johaar & Another
2010 (1) SACR 23
(SCA) at
(27]; S v Truyens 2012 (1) SACR 79 (SCA)
[3]
2000(1) SACR 331 (SCA) at [8]
[4]
S v Malgas (supra) at [12]; see also; S v Truyens (supra) at [4]
[5]
S v Blignaut (supra) at [8]
[6]
S v Blignaut (supra) at [5]
[7]
2006 (1) SACR 72
(SCA) para 10