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[2014] ZAGPPHC 150
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Nkutha and Another v S (A745/2013) [2014] ZAGPPHC 150 (31 March 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case Number:
A745/2013
DATE: 31 March
2014
Date of
hearing:
......................................................................................................
24
March 2014
In the matter between:
THEMBA NKUTHA
…
..................................................................................
1ST
APPELLANT
SIBUSISO
MNYAMANDE
...........................................................................
2ND
APPELLANT
and
THE
STATE
........................................................................................................
RESPONDENT
JUDGMENT
MOSEAMO AJ
[1]
This is an appeal against the sentence by the Benoni Regional Court.
Appellants were convicted on a charge of housebreaking
with intent to
steal and theft. Both appellants were subsequently sentenced on the
24
th
May 2012 to 15 years imprisonment of which 2 years
were conditionally suspended for a period of 5 years.
[2]
Appellants brought an application for Leave to Appeal against their
respective convictions and sentences. The court a quo dismissed
the
application.
[3]
Appellants were subsequently granted Leave to Appeal against their
respective sentences after they brought a Petition to the
Judge
President of this Honourable Court seeking Leave to Appeal against
their conviction and sentences.
[4]
The version of the state was that: Appellants broke into the
residence of the complainant and gained entry into the residence
through a garage door. The appellants appropriated a laptop computer
and a television set to the estimated value of R20 000.00
but they
were interrupted by a burglar alarm and fled leaving the items
behind. They were apprehended at a nearby residence while
attempting
to escape.
[5]
In sentencing the appellants the courts a quo considered the
prevalence of the offence within the court’s jurisdiction
and
the appellant’s previous convictions.
[6]
Appellents’ grounds of appeal are as follows:
[6.1]
the period of imprisonment imposed by the court
a quo
is
startlingly severe and disproportionate;
[6.2]
the court
a quo
over-emphasized the previous convictions of
the appellants and provided a hypothesis whereby the first offender
for housebreaking
with intent to steal and theft deserves 5 years
which escalates with 5 years for any further transgressions.
[6.3]
the sentence imposed have the hallmarks of a sentence where an
offender is declared a habitual criminal when the severity
of the
period of imprisonment is compared.
[7]
Appellants conceded that in so far as the appellants were not
deterred by their direct imprisonment with regard to their second
previous conviction then an increase in the period of imprisonment is
therefore justified in order to give effect to individual
deterrence
of the appellants.
[9]
It is trite that the imposition of sentence is
a matter, which is pre-eminently for the discretion of a trial court.
It will only
be interfered with where the trial court has not
exercised its discretion judicially. The appellate court will
interfere with the
sentence if it is vitiated by irregularity or
misdirection or is disturbingly inappropriate.
[10]
In
S V Rabie 1974 (4) 855 AD
it was stated that punishment
should fit the criminal as well as the crime, be fair to the society
and be blended with a measure
of mercy according to the
circumstances.
[11]
First appellant was 24 years years at the time of conviction, he was
unmarried and had Grade 10 level of education, he was
unemployed and
depended on his brother for financial assistance.
[12]
First appellant was found guilty of housebreaking with intent to
steal and theft on 23 October 2003 and he was sentenced to
five
years; the second conviction was on the 4
th
August 2009
where he was found guilty of housebreaking with intent to steal and
he was sentenced to 4 years imprisonment
[13]
Second appellant was 27 years old, unmarried with two children aged 5
years and 3 years respectively and had Grade 10 education,
he was
unemployed but owned two public phones and he made a profit of
R300.00 to R400.00 per week.
[14]
Second Appellant was found guilty of housebreaking and theft on 11
April 2000 and was sentenced to 6 months imprisonment, which
was
suspended for 5 years on condition that the appellant is not found
guilty of housebreaking with intent to steal and theft.
On the 27 May
2005 he was found guilty of housebreaking with the intent to steal
and theft and he was sentenced to three years
imprisonment and was
declared unfit to possess a firearm.
[15]
In sentencing the appellants the court a quo considered the fact that
the appellants were convicted of a very serious crime,
which is
prevalent in the court’s area of jurisdiction. The court a qou
noted that the appellants were not deterred by the
previous sentences
and that they ought to be promoted. The court a quo stated that the
community is crying out for something to
be done about the prevalent
crime.
[16]
The learned magistrate commented that the appellants are lucky that
housebreaking does not fall under the Minimum Sentence
Act but stated
that a clear message should be sent. This comment in my view
indicates anger and frustration on the part of the
magistrate.
[17]
In S v Rabie mentioned above at 866 A-C Corbett JA stated where that:
"A
judicial officer should not approach punishment in a spirit of anger
because, being human, that will make it difficult for
him to achieve
that delicate balance between the crime, the criminal and the
interests of society which his task and the objects
of punishment
demand of him. Nor should he strive after severity; nor, on the other
hand, surrender to misplaced pity. While not
flinching from firmness,
where firmness is called for, he should approach his task with a
humane and compassionate understanding
of human frailties and the
pressures of society, which contribute to criminality. It is in the
context of this attitude of mind
that I see mercy as an element in
the determination of the appropriate punishment in the light of all
the circumstances of the
particular case"
[18]
The court in
S
V MASWETSA
2014 (1) SACR 288
(GSJ)
referred to
S
v Maunye and others
2002
(1) SACR 266
T at 277 F – 278 in which Stegmann J, in a full bench decision,
said
‘
An
incident of housebreaking with intent to steal and theft, committed
with a single intention, is to be regarded as essentially
the crime
of theft, with housebreaking as a factor that tends to aggravate the
seriousness of the offence and therefor the severity
of the
sentence’.
[19]
In terms of
Section
271(4)
of the
CRIMINAL PROCEDURE ACT 51 OF 1977
(the
Act) the court is required to take previous convictions which have
been proved against the accused into consideration when
imposing a
sentence.
[20]
In
S V J
1989 (1) SA 669
A,
the court held that the relevance
and importance of previous convictions depended upon the elements
they had in common with the
crime in question.
[21]
In
S v MATIWANE
2013 (1) SACR 507
WCC
it was said that the degree of
emphasis to be placed upon previous convictions is a matter which is
within the discretion of the
trial court. Where the degree of
emphasis is disturbingly inappropriate, in that it cannot be said
that the sentencing court exercised
its discretion judicially, the
Court of appeal will interfere.
[22]
Appellants conceded that the offence with which they were charged was
serious and prevalent in the court a quo’s area
of
jurisdiction.
Although the courts are allowed to take judicial
notice of the prevalence of the crime in the area of jurisdiction of
the court,
the court should not rely upon personal experience of the
judicial officer heavily.
[23]
The court a quo referred to the case of S v Ingram
1995 (1) SACR 9
(A) which requires the court to strike a balance between a harsh and
a lenient sentence in order to serve the interest of the society.
[24]
The appellants committed a serious crime and
the interest of the society needs to be protected against criminals.
At the same time,
the interest of the society needs to be balanced
against that of a criminal and the seriousness of the crime.
[25]
The question is whether a sentence of fifteen years imprisonment with
two years conditionally suspended for five years is disproportionate
to the conduct of the appellants. Appellants broke in to the
complainant’s residence and stole a laptop computer and a
television
set to the value of approximately R20 000.00. They
abandoned the items after they were interrupted by the burglar alarm.
The complainant
therefore recovered the television set and the
laptop.
[26]
The court a quo considered the personal circumstances of the
appellants but it failed to consider the socio economic circumstances
of the appellants. It appears that the court over emphasized the
crime, the interest of the society over the criminal. The court
a quo
did not pay due regard to the object of punishment.
[27]
In this case the Magistrate considered the appellants’ personal
circumstances, but placed more emphasis on the appellants’
previous convictions and the prevalence of the crime. In my view the
degree of the emphasis is disturbingly inappropriate and therefore
constitutes a material misdirection, which warrants interference by
the appeal court.
[28]
The sentence of fifteen years is startlingly severe and
disproportionate that the only conclusion that can be arrived at is
that the court a quo approached sentencing with the spirit of anger
and there was no element of mercy in the sentencing of the
appellants. Consequently the appeal against sentence by both
appellants must succeed.
In
the result, I would propose the following order:
1.
The sentence imposed by the Magistrate is set aside. It is
substituted with the following:
‘
The
first and second appellants are sentenced to eight years
imprisonment.’
2.
The sentence is ante-dated to the 24
th
May 2012.
P
D MOSEAMO
ACTING
JUDGE OF THE HIGH COURT
I
AGREE, AND IT IS SO ORDERED
WRC
PRINSLOO
JUDGE
OF THE HIGH COURT