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[2014] ZAGPPHC 78
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Hadebe v S (A 696/2012) [2014] ZAGPPHC 78 (14 February 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Case
No: A 696/2012
Date:
14 February 2014
Not
reportable
Not
of interest to other judges
In
the matter between:
Buti
Hadebe
………………………………………
.
Appellant
And
The
State
JUDGMENT
Maumela
J.
1.
This
matter came before court as an appeal against sentence only. Before
the Regional court sitting in Evander, the Appellant, ButiHadebe,
who
was legally represented, was charged with the offence of House
Breaking with Intent to Steal and Theft, read with the provisions
of
Section 262 (1), and Section 264 of the Criminal Procedure Act 1977:
(Act No 51 of 1977) “The
Criminal Procedure Act&rdquo
;.
2.
The
allegations against the Appellant were that upon or about the 8
th
of July 2011, he did unlawfully and intentionally break open and
enter an office of one Heidi Molangana at G.S. College, whereupon
he
stole one motherboard valued at R 4 000 - 00, (Four Thousand Rand).
Before the court a
quo,
when the charge was put to him, the Appellant pleaded Guilty. He
submitted a statement in terms of Section 112 (2) of the “The
Criminal Procedure Act&rdquo
;. In that statement, the Appellant
admitted all the elements of the charge put to him.
3.
The
Appellant pleaded Guilty to the charge put. To that end, he submitted
a statement in terms of
Section 112
(2) of the
Criminal Procedure
Act. In
that statement, Appellant admitted all the elements in the
charge. On that basis, the court a quo
convicted
Appellant on the offence charged.
4.
Appellant
was then sentenced to undergo 15 (Fifteen) years imprisonment. With
the leave of the court a quo,
Appellant
now appeals against the sentence meted out to him. The State opposes
the appeal. This court is to decide on the appropriateness
or
otherwise of the sentence the court a guometed out to the Appellant.
5.
At
the time he was sentenced, Appellant was 31 years of age. He was
unmarried but he had
fathered
2 children with his girlfriend. The children were aged 6 and 9
respectively. At the time of sentence, the Appellant had
previous
convictions. The offences in the list of his previous convictions and
the dates of conviction are as follows:
5.1.
Theft
on the 4
th
of April 1997.
5.2.
Possession
of Suspected Stolen Property on the 2
nd
March
2002.
5.3.
Theft
on the 2
nd
July 2003.
5.4.
Theft
on the 16
th
of April 2004.
5.5.
Housebreaking
with Intent to Steal and Theft,on the 11
th
of May 2004.
5.6.
Theft
on the 23
rd
of January 2006.
5.7.
Possession
of Suspected Stolen Property on the 8 of February 2006.
5.8.
Assault
on the 9
th
of November 2006.
5.9.
Possession
of Suspected Stolen Property on the 4
th
of June 2008.
5.10.
Theft
on the 30
th
of July 2008.
6.
For
the offences forming part of the record of his previous convictions,
Appellant was sentenced to terms ofmagnitudes ranging from
Three
Months to Three Years Imprisonment; with some or parts of some of the
sentences suspended on diverse conditions. It is not
known as to
whether or not the computer which was an object of the theft in this
case was recovered.
7.
Most
of the offences that form part of the Appellant’s record of
previous convictions do relate to the offence of which he
stands
convicted in this case. The accused was 32 years of age when he was
sentenced. He was unmarried. He had three children with
a girlfriend.
The oldest is 6 years of age. He left school at standard 7. He
pleaded guilty and he expressed remorse for the offence
for which he
was convicted.
8.
In
passing sentence, the court a quo
commented
on the string of previous convictions against the Appellant’s
name. The court a quo
even
hinted that further offending on the part of the Appellant may result
in him being declared a habitual criminal. It observed
that a
majority of offences that make for the record of Appellant’s
previous convictions is characterized by the element
of dishonesty.
9.
It
cannot be denied that the pattern of offending on the part of the
Appellant suggests at the least that he has not learnt from
his
previous skirmishes with the law. However, all that notwithstanding
this court is to consider whether the appellant was subjected
to a
fitting sentence for a fitting offence, given the value of the object
of his thieving on the day of the incident.
10.
In
arriving at the sentence meted out, the court a c/i/ocites an
unreported case of S v Richard Sorani and Another, heard in the
WLD.
The learned Magistrate points out that in the Sorani case, where the
accused had committed the offence of Housebreaking with
Intent to
Steal and Theft, he was sentenced to undergo 6 years imprisonment.
11.
In
citing the above case, the learned Magistrate did not state the
circumstances of the Accused, the
value
of the property stolen, and whether or not the Accused in undergoing
trial did or did not demonstrate the same measure, if
not more or
less, of remorse and co-operation as was the case where it regards
the Appellant in this case.
12.
In
S v Kgafela
[1]
,
Friedman JP remarked at 211 b-c:“The elements of the triad
contain an equilibrium and a tension. A court should, when
determining
sentence, strive to accomplish and arrive at a judicious
counterbalance between these elements in order to ensure that one
element
is not unduly accentuated at the expense of, and to the
exclusion, of the others. This is not merely a formula, nor a
judicial
incantation; the mere stating wherefore satisfies the
requirements. What is necessary is that the court shall consider and
try
to balance evenly, the nature and circumstances of the offence,
the characteristics of the offender in his circumstances, and the
impact of the crime on the community, its welfare and concern. This
conception as expounded by the courts is sound and is incompatible
with anything less.
13.
It
appears that in this case, upon determining a fitting sentence, the
court a quo considered overly the record of previous convictions
of
the Appellant. In S v Baartman
[2]
the court stated the following:
“
But
the period of imprisonment must be reasonable in relation to the
seriousness of the offence. Otherwise it inevitably overemphazes
the
interest of society at the expense of the interest of justice and the
interest of the offender. If it does this, it cannot
be a just
sentence. In a case like this it is necessary to be aware of the
three considerations:
(a)
The
accused should be sentenced for the offence charged and not for his
previous convictions.
(b)
The public interest is harmed rather than served by sentences that
are out of all proportion to the gravity of the offence; and
(c)
While it may be justifiable on repeating the same offence, there are
boundaries to the extent to which sentences for petty crimes
can be
increased”.
14.
This
court notes that in this case, Appellant was not convicted for a
petty offence. Housebreaking is a serious crime. In this instance,
the Appellant stole a valuable item, namely a computer motherboard
worth R 4 000-00 (four
thousand
rand). A computer motherboard is something valuable. However, it is
clear that the sentence of 15 (fifteen) years imprisonment
imposed
upon the Appellant by far outweighs the break in and the concomitant
theft of one computer motherboard valued at R 4 000
- 00.
15.
In
S v Rabie
[3]
the court emphasised that sentencing is to be blended with mercy. In
this case Holmes JA stated:
"Then
there is the approach of mercy or compassion or plain humanity. It
has nothing in common with maudlin sympathy for the
accused. While
recognising that fair punishment may sometimes have to be robust,
mercy is a balanced and humane quality of thought
which tempers one’s
approach when considering the basic factors of letting the punishment
fit the criminal, as well as the
crime and being fair to society".
See
also S v Narker and Another
[4]
.
The concept of mercy has been recognised by the Courts of this
country as a necessary feature of a balanced sentencing approach.
16.
In
S v Harrison
[5]
,
the court stated: "Justice must be done but mercy, not
asledgehammer, is its concomitant.This court finds that the court
a
quo did overemphasize the previous convictions of the Appellant and
as a result it imposed on him a sentence that does not fit
both the
crime and the Accused. It cannot be stated with certainty either that
the sentence meted out in this case fits the interest
of the
community, whereas it is triad that Appeal courts should be weary of
interfering with sentenced meted out by trial courts.
The
court finds that in this case it would be justified to do so.
17.
In
the result the appeal stands to succeed and the following order is
made:
ORDER
.
1.
The
appeal succeeds.
2.
The
sentence meted out by the court a quo is set aside, and is
substituted by the following sentence:
“
The
accused is sentenced to undergo 7 (seven) years imprisonment”
antedated to the date of his sentence before the court a
quo.
T.
MAUMELA
JUDGE
OF THE HIGH COURT
I
agree, and it is so ordered
Y
SIDLOVA
ACTING
JUDGE OF THE HIGH COURT
[1]
.
2001 (2) SACR 207 (B).
[2]
.1997(1)
SACR 304 (E), at 305.
[3]
.
1975 (4) SA 855
(A) (supra at 861D.
[4]
.
1975
(1) SA 583
(A.D.), at p 586.
[5]
.1970
(3) SA 684 (A), at 686 A.