About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2015
>>
[2015] ZAFSHC 17
|
|
Nsiki v S (A165/2014) [2015] ZAFSHC 17 (12 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.:A165/2014
In
the appeal of:
BENJAMIN
MOSOLOMI NSIKI
…..................................................................
Appellant
and
THE
STATE
…....................................................................................................
Respondent
CORAM:
MOLEMELA, JP
et
MURRAY, AJ
HEARD
ON:
3 NOVEMBER 2014
DELIVERED
ON:
12 FEBRUARY 2015
MOLEMELA, JP
[1]
This is an appeal against a sentence of seven years’
imprisonment imposed for stock theft by the Regional Court in
Kroonstad
(“the trial court”). The appellant was charged
with theft of twelve cattle in contravention of sections 1, 11, 12,
14 and 15 of the Stock Theft Act 57 of 1959. He pleaded not guilty.
The trial court convicted him and sentenced him to seven years’
imprisonment. Aggrieved by this sentence, the appellant approached
the trial court for leave to appeal, which was duly granted.
[2]
The facts that led to the appellant’s prosecution and
conviction are briefly summed up as follows. The appellant was a
shepherd on the complainant’s farm. He subsequently became
interested in buying a motor vehicle and offered the owner of
the
vehicle twelve cattle as a payment in kind. The appellant duly
delivered the twelve cattle, which belonged to his employer,
to the vehicle owner but the latter was arrested when he tried
to sell the cattle at an auction. Both the appellant and the vehicle
owner were prosecuted. The vehicle owner was convicted of possession
of stolen property and a wholly suspended sentence was imposed
on
him. The appellant was convicted of theft and was sentenced to seven
years’ imprisonment.
[3]
The sentence imposed is assailed on the basis that it is strikingly
inappropriate, that the trial court paid lip-service to
the
appellant’s personal circumstances and over-emphasized the
seriousness and prevalence of the offence. In this court,
it was
argued on behalf of the appellant that the trial court misdirected
itself and imposed a sentence that was disproportionate
to the
offence.
[4]
It is trite that a court of appeal will interfere with the sentence
where the trial court failed to exercise its sentencing
discretion
properly or exercised it unreasonably or if there is a marked
disparity between the sentence imposed and the sentence
which the
Court of Appeal would have imposed. In the case of
S
v MALGAS
[1]
the court stated as follows:
“
A court
exercising appellate jurisdiction cannot, in the absence of material
misdirection by the trial court approach the question
of sentence as
if it were the trial court and then substitute the sentence arrived
at by it simply because it prefers it. To do
so would be to usurp the
sentencing discretion of the trial court. Where material misdirection
by the trial court vitiates its
exercise of a discretion, an
Appellate court is of course entitled to consider the question of
sentence afresh. However, even in
the absence of material
misdirection, an Appellate court may yet be justified in interfering
with the sentence imposed by the trial
court…when the
disparity between the sentence of the trial court and the sentence
which the Appellate court would have imposed
had it been the trial
court is so marked that it can properly be described as “shocking”,
“startling”,
or “disturbingly inappropriate”.
[5]
It is also a trite principle of our law that sentencing must be
individualised and thus each case must be decided on its own
facts.
In the case of
SMM
v The State
[2]
,
it was aptly stated as follows:
“
For the
reasons that follow I am of the view that the court below erred in
this regard. I deem it necessary to provide a detailed
exposition of
this court’s recent judgments in such cases. I hasten to add
that it is trite that each case must be decided
on its own merits. It
is also self-evident that sentence must always be individualised, for
punishment must always fit the crime,
the criminal and the
circumstances of the case. It is equally important to remind
ourselves that sentencing should always be considered
and passed
dispassionately, objectively and upon a careful consideration of all
relevant factors.”
It
is, thus clear that it is an acceptable practice for courts to
consider comparable cases as guidelines for purposes of determining
an appropriate sentence. See
S
v De Klerk
[3]
.
I
align myself to the approach set out in this case.
[6]
It is correct that the appellant was employed in a position of trust
which he abused by committing the crime. The trial correctly
found
that the offence was of a serious nature and also that it was
prevalent in its area of jurisdiction. All of
these
factors constitute aggravating circumstances. In the case of
Truyens
v The State
[4]
(“Truyens case”) at para [24] the court correctly
remarked as follows:
“
Stock theft
is a sensitive issue in many farming communities. This is because it
is difficult for farmers to prevent the crime and
equally difficult
for perpetrators to be apprehended and prosecuted. Cattle farmers are
therefore particularly vulnerable to this
type of crime. The courts
have reflected these concerns by progressively imposing tougher
sentences – usually direct imprisonment
– on offenders.”
[7]
In
S
v Chipape
[5]
the trial court sentenced the accused to 18 months’
imprisonment for stock theft involving a bull that was later sold for
R2 800. The accused had used the money to buy clothes and groceries.
From this fact the review court accepted in the accused’s
favour that he was not motivated by blatant greed. The review court
indicated that correctional supervision would probably have
been the
appropriate sentence. However, since the accused had already served
six months of his sentence, the review court imposed
six months’
imprisonment, antedated to the date of the original sentencing.
[8]
In the
Truyens
case (
supra)
the Supreme Court of Appeal, having been referred to a case of
S
v Lephoro
[6]
(“Lephoro case”) where ten years
’
imprisonment (of which three years were suspended) was imposed on the
accused persons for theft of forty eight cattle)
,
accepted that the circumstances applicable to the case in question
differed somewhat from other stock theft cases. It took into
account
that the Lephoro case concerned persons who were acting in concert
and
who
had shown no remorse. It accepted that even though the
appellant had stolen a large number of cattle over a period of
time,
his moral blameworthiness was somewhat reduced because his motive for
stealing the cattle in question was to pay for his
children’s
medical costs for the treatment of their rare illness and he had
shown remorse for his actions. The court accordingly
set aside the
effective eight years’ imprisonment sentence imposed by the
high court on appeal for the
theft
of 48 cattle and re-instated the four years’ imprisonment
sentence that was originally
imposed
by the magistrate in the trial court in terms of
section 276(1)(i)
of
the
Criminal Procedure Act 51 of 1977
, in terms of which he would
serve a minimum of eight months’ imprisonment before being
considered for placement under correctional
supervision.
[9]
A consideration of the above-mentioned authorities reveals that a
harsh sentence was imposed on the appellant
in casu
. I accept
that, unlike in the case of
Truyens
, the appellant was
motivated by greed and not by need and did not show any remorse. This
case is also distinguishable from the
TRUYENS case in that the number
of cattle stolen in the TRUYENS case is four times the number of
cattle stolen in the present case.
The appellant had two
relevant previous convictions, namely robbery and theft,
respectively, which both involve an element of dishonesty.
However,
the appellant was 41 years old and his last previous convictions
occurred 15 years prior to his stock theft conviction.
The trial
court therefore correctly found that little weight was to be accorded
to these previous convictions.
[10]
A strong mitigating factor is the fact that the appellant was the
sole breadwinner in a family in which his spouse and all
his six
children were unemployed. That does not mean that he should be
treated lightly, though, and I hasten to point out that
his economic
situation should not necessarily call for his theft to be condoned.
Stock-theft is a serious offence. The appellant
stole twelve cattle
with an approximate value of R72 000 from his employer.
However, the twelve cattle that the appellant
stole were all
recovered the day after the theft and they were still in a good
condition. The farm-owner thus suffered no financial
loss. This
is an important consideration that should count in his favour. The
record reveals that the trial court paid little
regard to this
factor. This in my view constitutes a misdirection entitling
this court to interfere with the
sentence.
[11]
It is trite that the period spent in custody while awaiting trial is
a factor to be taken into account when an appropriate
sentence is
determined. I am of the view that imposing an effective seven years’
imprisonment sentence on the appellant when
he had already spent 15
months in custody while awaiting trial put the sentence imposed in
the realm of a “disturbingly inappropriate
sentence” as
contemplated in the
Malgas
case
(supra).
I
am of the view, however, given his lack of remorse and the motive of
greed, that on a proper consideration of the well-known triad
of
sentence and the period spent by the appellant in custody while
awaiting his trial, the appropriate sentence for the accused
is a
more lenient but still relatively long custodial sentence.
[12] Wherefore the
following order is made:
(i) The appeal
against sentence succeeds.
(ii) The sentence
imposed by the trial court is set aside and replaced with following:
“The accused is sentenced to five years’
imprisonment”.
(iii) The sentence
referred to in clause (ii) above is antedated to 13 December 2013.
___________________
M.
B. MOLEMELA, JP
I
concur.
______________________
H
MURRAY, AJ
On
behalf of the appellant: Mr K. Pretorius
Instructed by:
Legal Aid
BLOEMFONTEIN
On
behalf of the respondent: Adv. S. Chalale
Instructed by:
The Director:
Public Prosecutions
BLOEMFONTEIN
[1]
2001 (1) SACR 469
(SCA) at 478.
[2]
2013 (2) SACR 292 (SCA).
[3]
2010 (2) SACR 40
(KZP) paras [18]–[26].
[4]
2012 (1) SACR 79
(SCA) para [24].
[5]
2010 (1) SACR 245
(GNP).
[6]
U
nreported
case no CA 28/2006 (Bophuthatswana Provincial Division).