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[2015] ZAGPPHC 485
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Phasha v S (A890/2014) [2015] ZAGPPHC 485 (11 June 2015)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION,
PRETORIA)
In
the matter between:
CASE
NUMBER: A890/2014
11/6/2015
ONIKA
PHASHA
APPELLANT
and
THE
STATE RESPONDENT
HEARD
ON: 20 April
2015 JUDGMENT:
STRIJDOM
AJ
1. This is an appeal
against sentence. The Appellant, a [….] year old female was
convicted of theft in the Magistrates Court,
Hatfield. She has
pleaded guilty on 26 February 2014, and in terms of Section 114 of
the Criminal Procedure Act, Act 51 of 1977,
the matter was referred
to the Regional Court Atteridgeville for sentence.
2. On 3 June 2014, the
Appellant was declared a habitual criminal in terms of Section 286
(1) of the Criminal Procedure Act.
3. The Appellant is [……]
years of age. She is unemployed and receives an old age pension of
R1,300.00 per month. The
Appellant takes care of two
2
grandchildren, who lives
with her prior to her arrest. The mother of these two children are
deceased. The Appellant only progressed
to grade 5. Her mother passed
away when she was […..] years of age.
4.
The Appellant has 45 previous convictions.
5. It was submitted on
behalf of the Appellant that the following mitigating factors which
are not in dispute between the State
and the defence should be
considered in favour of the Appellant:
5.1.
The Appellant admits responsibility for the offence and pleaded
guilty.
5.2.
All the stolen items were recovered. The value of the stolen items
amounts to R650.00.
5.3.
The Appellant is [……] years of age.
5.4.
The offence was committed not out of greed, but out of necessity
resulting from her dire circumstances, as is evident from the
psycho
social report, as well as the items that were stolen, being school
shoes for the minor child and bedding.
5.5.
Although the Appellant may be regarded as a risk to society due to
loss of property, her actions did not result in any bodily harm
to
any members of public. She is therefore not a danger to society.
5.6.
It seems evident from the sentences that were imposed for previous
convictions, that most of these offences were relatively
3
small in nature. In the
last seven offences, the prosecutor allowed the payment of an
admission of guilt fine.
AD
SECTION 286 (1) OF THE CRIMINAL PROCEDURE ACT:
6.
Section 286 (1) of the Criminal Procedure Act provides:
"(1)
Subject to the provisions
of subsection
(2)
a
Superior
Courl or
a
regional
Court which convicts
a
person
of one or
more offences,
may,
if
satisfied
that
the
said
person
habitually commits
offences
and
that
the
community
should
be protected
against
him,
declare
him
a
habitual
criminal,
in lieu
of the
imposition
of any
other punishment
for the offence or offences of which he
is
convicted."
7.
In
S v Niemand
2001 (2)
SACR
654
CC, the Constitutional Court held that a
sentence in terms of which an offender is declared a habitual
criminal must be read and
applied as if it is subject to a maximum of
15 years imprisonment.
8.
It was submitted by Mr Rudman for the Appellant that the Appellant
commits these offences during times of financial hardship
and not as
a result of habit.
9.
It is further submitted on behalf of the Appellant that the sentence
imposed is shockingly inappropriate and disproportional
to the crime,
the offender and the legitimate needs of society.
10.
Counsel for the Respondent conceded that this Court should interfere
with the sentence imposed by the Court a
quo.
11.
In cases involving petty theft, the Court, in considering whether to
apply Section 286 (1), should have regarded to the socio-economic
conditions of the offender as well as other relevant factors in
determining what motivated the person to commit offences. Precisely
because an accused is effectively being punished for his previous
convictions as well as for the present one, it is important to
know
the circumstances under which they were committed before such a
declaration is made.
See:
S v Stenqe
1008 (2)
SACR
27
CPD
12.
It is evident that the Magistrate considered that previous sentencing
options had not had a deterring effect. That fact alone
does not
justify the imposition of ever increasing sentences. It would be more
appropriate to inquire why the Appellant repeatedly
committed
offences, involving an element of dishonesty than to assume, that
purely by virtue of their prevalence the offences were
being
committed out of habit.
13.
It is further evident from the history and background of the
Appellant that the offences were committed out of need and not
greed.
The probation officer concluded in her report (Exhibit "C")
that the Appellant committed the offence to financially
support her
two grandchildren who are staying with her.
14.
The intention of the Legislature in enacting Section 286 was clearly
to vest a judicial officer with the discretion to depart
from its
provisions in certain circumstances, like in the present case.
15.
In taking in consideration the goods stolen (a duvet set and
children's school shoes), it is inconceivable that a person should
spent seven to fifteen years in prison for the commission of such an
offence.
16.
In
S
v Beja
2003
(1) SACR
168
(SE) at 170 d-e
the Learned Judge held
the following:
"It is trite that
the sentence
must always fit the crime
and the fact that the
person to be
punished has
a
list of
previous
convictions of
a
similar
nature,
while
it
may
be
an
important
factor,
could
never serve to extend the period of sentence so that it is
disproportionate
to
the
seriousness
of
the
crime
for
which
such
a
person
must
be punished."
17.
I am not convinced that force of habit is the only reasonable
inference that can be drawn from a long list of previous convictions.
18.
In my view the sentence of seven fifteen years imprisonment is
shocking inappropriate and disproportional to the crime, the
offender
and the interest of society.
19.
Accordingly, I propose that the Appeal against sentence is upheld and
the following Order be made:
19.1.
The sentence imposed
by the Court
a
quo
is set aside and replaced with the following:
"In terms
of Section 276 (1) (i) Act
71 of
1977
the Accused is sentenced to five (5)
years correctional
supervision."
19.2.
The sentence referred to in
paragraph 19.1 is antedated in terms of
Section 282 of Act 51 of 1977 to 3 June 2014.
19.3.
The accused is declared unfit
to possess a firearm.
___________________
J
STRIJDOM
ACTING
JUDGE OF
THE HIGH
COURT
GAUTENG
DIVISION, PRETORIA
DATE:
I
agree
_____________
JANSEN
J
JUDGE
OF THE HIGH COURT GAUTENG
DIVISION,
PRETORIA DATE:
7
APPEARANCES:
On
behalf of the Appellant: AC Rudman
On
behalf of Respondent: Adv C Mnisi
Director
Public Prosecutions