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[2014] ZAGPPHC 247
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Mthembu v S (A 307/2013) [2014] ZAGPPHC 247 (11 April 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Case Number: A
307/2013
Date: 11 April 2014
In the matter of:
Selby
Calvin
Mthembu
......................................................................................
Appellant
Versus
State
JUDGMENT
Maumela J.
1.
In this case, one Selby Calvin Mthembu, an adult male, appeals
against sentence. Before the Regional Court Nelspruit in the
Mpumalanga Province, hereinafter referred to aslthe court a
quo,
he
was legally represented throughout the trial. He was 31 years of age
at the time of his arraignment.
2.
Before the court a
quo,
the
Appellant was charged with three (3) counts as follow:
2.1. House Breaking
with Intent to Steal and Theft,
2.2. Theft and,
2.3. House Breaking
with Intent to Steal and Theft.
3. Appellant pleaded
Guilty to all the charges, and to that end, he submitted a statement
in terms of Section 112 (2) of the Criminal
Procedure Act 1977, (Act
No 51 of 1977), hereinafter referred to as the
Criminal Procedure
Act. In
that statement, Appellant admitted all the elements in the
charges against him. He was consequently convicted, on all the 3
charges.
4. The Appellant was
sentenced as follows:
Count I: 10 years
imprisonment.
Count II: 3 years
imprisonment.
Count III: 8 years
imprisonment.
The 3 sentences were
not ordered to run concurrently. As a result, cumulatively, the
sentence meted out to the Appellant quantified
at 21 years of
imprisonment.
5.
Before the court a quo, the Appellant applied for, and was granted
leave to appeal against sentence. The failure on the part
of the
court a
quo,
to
order the three sentences above to run concurrently is the main
gravamen Appellant has against the sentences meted out to him.
This
court has to determine whether the court a
quo
was
correct or not when it did not order for the three sentences to run
concurrently.
6. Regarding Count
I, the allegations were that Appellant broke into a Civic Centre
which was being utilized for purposes of elections
and he stole goods
valued at R 103 717-00. On Count II it was alleged that the Appellant
smashed a window of a vehicle and committed
Theft out of it. R 5
000-00 is the value of the goods allegedly stolen. In Count III, it
was alleged that the Appellant broke a
window of some office premises
to gain entry. He was interrupted by security officers but a
cofnputer worth R 10 000-00 got stolen
in the process.
7.
In essence, the Appellant requests the court to interfere with the
sentence meted out to him by the court a quo. It is trite
that such
an exercise is not to depend on the whims of the appeal court.
Instead, in exercising its discretion in that regard,
this court has
to heed the guiding principles as expressed in S v Rabie
1
.
8. In that case the
court stated: “The decision as to what an appropriate
punishment would be is pre-eminently a matter fonthe
discretion of
the trial court. The court hearing the appeal should be careful not
to erode that discretion and would be justified
to intervene only if
the trial court’s discretion wag not “judicially and
properly exercised” which would be
the case if the sentence
that was imposed is “vitiated by irregularity or misdirection
or is disturbingly inappropriate".
9. The appellant was
not a first offender at the time he was sentenced.
- On the 29
th
of May 1998, he was convicted of an offence of House Breaking with
intent to steal and Theft. He was sentenced to undergo eight
(8)
months imprisonment. The Whole sentence was suspended on normal
conditions for three (3) years.
- On the 23
rd
July 1998, he was convicted on a charge of Theft. He was sentenced to
three (3) months imprisonment.
- On the 24
th
of February 2004, the Appellant was convicted oh a charge of Theft.
He was sentenced to undergo twelve (12) months imprisonment.
- On the 16
th
of May 2005, Appellant was convicted of an offence of House Breaking
with intent to steal and Theft. He w(as sentenced to undergo
eighteen
(18) months imprisonment.
- On the 8
th
of August 2007, the Appellant was convicted of an offence of House
Breaking with intent to steal and Theft. He was sentenced to
undergo
three (3) years imprisonment.
10. In terms of
Section 271
of the
Criminal Procedure Act, where
an|accused person
admits a previous conviction, or where such a previous conviction is
proved against him or her, the court shall
take such a conviction
into account when imposing any sentence in respect of the offence of
which the accused has been convicted.
11.
It means therefore that in meting out a sentence against the
Appellant, the court a
quo
was
entitled to consider that Appellant has previous convictions. Such a
consideration could only have influenced towards a sentencing
approach which is imbued with lesser leniency. However, our courts
have adopted the view that in passing sentence, previous convictions
are not to be over-emphasized.
12.
In fhe case of S v Mugell
2
the court stated the following:
“
The
degree of emphasis to be placed upon previous cqnvictions is a matter
falling within the discretion of the sentencing court.
Where the
degree of emphasis was disturbingly inappropriate, in that it could
not be said that the sentencing court had exercised
its discretion
judicially, the court of appeal would interfere”.
13.
It is trite that the sentence meted out has to be one that fits the
crime, the criminal and the interests of the community
3
.
In the case of S v Beja
4
the court stated as follows:
“
It
js trite that the sentence must always fit the crime and the fact
that the person to be punished has a long 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 thát
it
is disproportionate to the seriousness of the crime for which such a
person must be punished. A period of imprisonment must
always be
reasonable in relation to the seriousness of the offence”.
14.
In the case of S v Kruger
5
,
an appellant had been convicted on: seven counts of House Breaking
with intent to steal and Thbft, one Count of Theft, one of
contravening Section 36 of the General Laws Amendment Act 1955: (Act
No: 62 of 19Í55), and for Robbery. For the counts of
House
Breaking, he wgs sentenced to 4 years imprisonment per count. For the
Thjsft and for the contravention of Section 36, he
was sentenced to
undergo 3 years imprisonment on each count. For the Robbery charge,
he was sentenced to undergo 8 years imprisonment.
The total value of
the goods involved in the Kruger case was R 124 350-00.
15. In S v Baartman
1997 (1) SACR 304
(EC), at 305 c, the court staited: “But the
period of imprisonment must be reasonable in relation to the
seriousness of the
offence. Otherwise it inevitably overemphasizes
the interests of society at the expence of the interest of the
offender”.
16. In this case,
the Appellant was 30 years of age at the time he was sentenced. He
was married with two children aged four and
two respectively. Before
his arrest the Appellant was self-emlployment selling cigarettes at
the Nelspruit taxi rank. That way,
he would earn about R400-00 per
month. At the time he was sentenced, the Appellant told court that he
is serving a sentence of
three years imprisonment relating to a
conviction on theft. He had been sentenced on the 25
th
of
June 2009.
17.
There is consensus between the state and the Appellant that the
sentence meted out by the court a
quo
is
unduly harsh. Both sides agree that the failure on the part of the
court a
quo
to
order concurrency of the sentences meted out for the three counts on
which Appellant stands convicted, resulted into a cumulative
tally in
terms of the total years of imprisonment, which induces a sense of
shock. This court views that the cumulative tally of
years of
imprisonment imposed on the Appellant, which is 21 years of
imprisonment, is clearly out of proportion with the offences
committed, and the circumstances of the Appellant.
18. In the
circumstances the appeal stands to succeed and the following order is
made:
ORDER.
1. The appeal
succeeds.
2.
The sentence imposed by the court
a
quo
is
set aside and is replaced by the following sentence:
(i). All three
counts are taken as one for purposes of sentence.
(ii). The appellant
is sentenced to undergo 14 (fourteen) years imprisonment
T.A
Maumela
Judge
of the High Court
I Agree
Y
Sidlova
Acting
Judge of the High Court
1
.1975
(4) SA 855 (A), at 857 d-f.
2
.
1998 (2) SACR 414(C).
3
.
S v Zinn
1969 (2) SA 537
(A).
4
.
2003 (1) SACR 168
(SE), at 170.
5
.
2012(1) SACR 369 (SCA).