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[2014] ZAGPPHC 288
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Balete v S (A884/2013) [2014] ZAGPPHC 288 (17 April 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: A884/2013
DATE:
17 APRIL 2014
In the matter
between:
VUYANI BRUCE
BALETE
................................................
APPELLANT
And
THE
STATE
....................................................................
RESPONDENT
JUDGMENT
MAKHOBA AJ:
The appeal is
properly on the roll.
1. THE CHARGE
The Appellant was
charged with four counts of theft of which he pleaded guilty to
counts one and two and not guilty on counts three
and four. The
Appellant was convicted on counts one and two on the 10th August
2010. In respect of counts three and four the trial
commenced on the
10th August 2010. After several delays it was finalised on the 24th
February 2011 whereby Appellant was discharged
on counts three and
four.
2. SENTENCE
On the 24th February
2011 Appellant was sentenced as follows by the court a quo:
1. Count 1: 3
(three) years imprisonment
2. Count 2: 3
(three) years imprisonment
The court a quo did
not order that the sentences on the two counts run concurrently.
Appellant was thus sentenced to an effective
period of 6 (six) years
imprisonment. The Appellant was granted leave to appeal by the court
a quo against the sentences imposed.
The appeal is
therefore solely on the sentence only.
3. GROUNDS OF APPEAL
Counsel for the
Appellant relied on the following grounds of appeal against the
sentence.
i. The sentence
imposed by the court a quo is startlingly severe and
disproportionate;
ii. Court a quo
failed to consider various mitigating factors;
iii. The sentence
accounts only for retribution and general deterrence as aims of
sentence whilst individual deterrence and rehabilitation
was ignored;
iv. The time spent
in custody was not taken into account;
Counsel for the
Respondent submitted that the sentence imposed by the court a quo
should be confirmed. Furthermore Respondent submitted
that the
Appellant has in any event been released on parole on 24 May 2013
having served 2 (two) years and 7 (seven) months.
4. THE LAW
in S v Anderson
1964
(3) SA 494
(A) at 495 paragraph D-E Rumpff JA said the following
“Over the years our courts of appeal have attempted to set out
various
principles by which they seek to be guided when they are
asked to alter a sentence imposed by the trial court. These include
the
following: the sentence will not be altered unless it is held
that no reasonable man ought to have imposed such a sentence, or that
the sentence is out of all proportion to the gravity or magnitude of
the
offence, or that the
sentence induces a sense of shock or outrage or that the sentence is
grossly inappropriate or inadequate, or
that there was an improper
exercise of his discretion by the trial Judge, or that the interest
of justice require it”.
in S v Mkize
1973
(3) SA 284
(N) 286 F-G Miller J said the following: “While the
public is entitled to protection against any one individual, one
cannot
sacrifice the individual entirely in offering that protection
to it. I think the most the court can do consistently with justice
is
to protect the public for as long a period as seems commensurate with
the accused's desert. ”
In this matter
before us the Appellant was relatively young when he committed the
offence in question. In S v N 2008 (2) SACR the
court held that the
child offenders were to be distinguished from adults because it must
be recognized that their crimes might
stem from immature judgements.
5. CONCLUSION
The Appellant in
this case was 18 years of age at the time of the commission of the
offences. He was a first offender and he pleaded
guilty on the first
and second counts. The value of the items is not that substantial. It
is my respectful view that due to the
age of the Appellant and the
nature of the offences he committed the court a quo should at last
have requested a pre-sentence report
before sentence was
imposed. Such report
would have enabled the court a quo to impose a proper sentence.
On page 81 of the
record lines 5-20 the court a quo over emphasised the interest of the
community and the bad character of the accused
and those who in the
opinion of the court are like him. By so doing the court did not
properly take into account the Appellant’s
personal
circumstances and over emphasised the interest of the society. The
court a quo failed to take into consideration that
the Appellant had
been in custody for far too long due to the delay of the trial by the
State.
Consequently I find
that the sentence imposed to the Applicant by the court a quo on both
counts are excessive and there was an
improper exercise of the
court’s discretion by the trial court - see S v Mkize and S v
Anderson supra and other decisions
referred to above.
It is unfortunate
that the Appellant had already served part of his sentence in prison.
6. ORDER
I propose the
following order: The Appeal against sentence is upheld.
The sentencing
imposed on counts one and two are set aside and the following
sentence is imposed.
1. For purpose of
sentence both counts are taken as one.
2. 18 (eighteen)
months imprisonment suspended for a period of 3 (three) years on
condition the accused is not convicted of any
offence of which
dishonesty is an element committed during the period of suspension
3. In terms of
section 282 of Act 51 of 1977 the sentence is ante dated to the 24th
February 2011.
D MAKHOBA
"ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION,
PRETORIA
I agree and it is
so ordered.
M- KOLLAPEN JUDGE
OF THE HIGH COURT OF SOUTH AFRICA.
GAUTENG
DIVISION, PRETORIA