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South Africa: North Gauteng High Court, Pretoria
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[2014] ZAGPPHC 203
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Dlamini v S (A697/2012) [2014] ZAGPPHC 203 (5 February 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG,
PRETORIA)
CASE
NO: A697/2012
DATE:
5 FEBRUARY 2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the master between:
MDUDUZI
DLAMINI
……………………………………………………………
Appellant
and
THE
STATE
……………………………………………………………………
.
Respondent
JUDGMENT
CAMBANIS
AJ
[1]
This is a criminal appeal against
sentence only, the appellant having pleaded guilty to the charge of
housebreaking with the intent
to steal and theft committed on the 4
th
Auqust 2011. The court convicted him of this charge.
[2]
Appellant was initially charged
with another person but their trials were separated on 24
th
January 2011 when Appellant elected to plead guilty to the charge and
submitted his statement in terms of section 112 (2) of the
Criminal
Procedure Act no 51 of 1977.
[3]
Appellant admitted that he
together with his friends broke a door, gained entry into the home of
Ms. Yvette Ali and stole spare
keys of a motor vehicle, one SAMUNG-
DVD player, T-shirts, one HP laptop and a Sony DIGITAL Camera. They
shared the stolen property
amongst themselves. He does not name those
persons nor does he disclose how the stolen items were divided up
amongst themselves.
He does not say how many friends were involved
nor does he provide the names of the other people involved. In short,
the Appellant,
did nothing to assist the police in investigating this
crime any further which in my view indicates that he does not have
any remorse
for having committed this crime. This is an aggravating
factor.
[4]
At the sentencing stage of the
trial, the State proved six previous convictions for house breaking,
one conviction for possession
of reasonably suspected stolen property
and one conviction of theft. He was twice previously declared unfit
to possess a firearm.
His history of previous convictions constitutes
another aggravating factor.
[5]
A perusal of his previous
convictions reveals that the appellant was still on suspension until
9 November 2012 on the theft charge
and still under correctional
supervision until 9 October 2012 at the time that he committed the
crime under discussion. This clearly
did not in any way whatsoever
deter the appellant from engaging once again in this criminal
conduct.
[6]
The trial court failed to
consider this aspect when deciding an appropriate sentence and thus
failed to consider the additional
terms of imprisonment that ought to
have come into effect once the appellant was again convicted during
the periods of suspension
on his previous convictions.
[7]
The appellant did not call any
witnesses in mitigation of sentence nor did he testify on his own
behalf. His personal circumstances
were placed on record by his legal
representative, namely that he is single, he has two (2) children and
a pregnant girlfriend
at the time of sentence. He gained employment
as a carpenter two months before his trial, he left school in
standard 8 and was
the bread winner.
[8]
In considering whether to interfere with
sentence on appeal, the Court of Appeal is mindful of established
legal precedent that
an Appeal Court will not lightly interfere with
the lower court’s decision. It will only do so where the
sentence imposes
a sense of shock and is startlingly inappropriate or
where there is a clear case of misdirection.
[9]
The only possible misdirection by the
lower court was to ignore further aggravating factors as already
mentioned in paragraphs 5
and 6 above.
[10]
This court was referred to a number of
cases in which accused persons received lesser sentences for the
offence of housebreaking.
A reading of these
cases
reveals that the circumstances and personal history set out in those
cases are remarkably different to the present case. They
do not
provide any useful guidance nor do they show that this sentence is
inconsistent with sentences handed down by the court
for the same
offence.
[11]
The Appellant has failed to persuade
this court that any misdirection has taken place. He has also failed
to establish that the
sentence induces a sense of shock or that it is
inappropriate.
[12]
The court makes the following
order:
1.
The appeal is dismissed.
C
CAMBANIS
ACTING
JUDGE OF THE HIGH COURT
I
agree
K
E MATOJANE
JUDGE
OF THE HIGH COUR
T
DATE
OF HEARING
: 9 SEPTEMBER 2013 DATE OF DELIVERY
FOR
THE APPLICANT:
MR J VAN ROOYEN (Attorney)
INSTRUCTED
BY
: PRETORIA JUSTICE CENTRE
FOR
THE RESPONDENT
: ADV S R SIBARA
INSTRUCTED
BY
: DIRECTOR OF PUBLIC PROSECUTIONS,
PRETORIA