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[2006] ZASCA 44
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S v Muller (236-05) [2006] ZASCA 44; [2006] SCA 41 (RSA) (29 March 2006)
THE SUPREME
COURT OF APPEAL
OF SOUTH AFRICA
Not Reportable
Case no: 236/05
In the matter between:
MULLER, STEPHANUS DANIëL
PETRUS
Appellant
and
THE STATE
Respondent
Before:
STREICHER, BRAND &
NUGENT JJA
Heard:
7 MARCH 2006
Delivered:
29 MARCH 2006
Summary: Sentence â contravention of s 2 of Stock
Theft Act 57 of 1959 â no irregularity or misdirection by
sentencing court â
sentence of 4 yearsâ imprisonment half
suspended not inappropriate.
Neutral citation: This judgment may
be referred to as Muller v The State [2006] SCA 41 (RSA)
JUDGMENT
STREICHER JA
STREICHER JA
:
[1] The appellant was convicted in
the Regional Court at Mothibistadt on two counts of the theft of
cattle. He was sentenced to four
yearsâ imprisonment in respect of
the first count and in respect of the second count he was sentenced
to two yearsâ imprisonment
suspended for a period of three years.
On appeal to the Bophuthatswana High Court the convictions were set
aside and âsubstituted
with convictions of possession of suspected
stolen propertyâ. The sentence in respect of the conviction on the
first count was
altered to one of four yearsâ imprisonment of which
half was suspended for four years. With the necessary leave the
appellant now
appeals against this sentence.
[2] It is common cause between the
appellant and the respondent that the appellant was convicted of a
contravention of s 2 of the
Stock Theft Act 57 of 1959 which provides
as follows:
â
Any person who is found in possession of stock or
produce in regard to which there is reasonable suspicion that it has
been stolen
and is unable to give a satisfactory account of such
possession shall be guilty of an offence.â
[3] The appellant was found in
possession of eight stolen cattle which he intended to sell at an
auction. Inspector Maritz testified
that when he confronted the
appellant, the appellant produced a document which indicated that
the seller of the cattle was one Simon
Morake. Asked who Simon Morake
was he pointed to Ernest Mongotleng who had accompanied him and who
became his co-accused in the Regional
Court. Mogotlengâs evidence
was to the effect that he had not sold the cattle to the appellant.
The appellant did not testify at
the trial and did not dispute the
evidence of either Maritz or Mogotleng.
[4] The appellant submitted that the
High Court failed to consider a sentence of correctional supervision
or one imposing a fine.
He submitted furthermore that the High Court
failed to take into account the fact that the cattle had been found
back and that no
damage was suffered; that the appellant had been
convicted of a less serious offence than theft; that the appellant
was, at 42 years
of age, a first offender with a wife and children
who were dependent on him; and that he was in a position to pay a
fine.
[5] The mere fact that the High Court
did not specifically mention the matters referred to is an
insufficient basis for a finding
that it did not consider or take
them into account. The appellant was legally represented in the High
Court and all these matters
would have been drawn to the attention of
that court. In the circumstances the fact that they were not
specifically mentioned is
not a basis for believing that they were
not considered or taken into account.
[6] The punishment in respect of the
offence committed by the appellant was a matter for the discretion of
the High Court and should
only be altered on appeal if that
discretion had not been judicially and properly exercised. That will
be the case if the discretion
is vitiated by irregularity or
misdirection or if the sentence is disturbingly inappropriate. Having
regard to the seriousness of
the offence committed by the appellant I
am not persuaded that the sentence imposed by the High Court is
inappropriate or that the
High Court committed a misdirection. The
appeal should therefore be dismissed.
[7] There is another matter which
should be raised in this appeal. The appellant and his co-accused
were convicted in the Regional
Court of the same offences and the
regional magistrate was of the view that they should receive the same
sentences. In the premises
the High Court, when it altered the
convictions in respect of the appellant, should have considered
whether the conviction of the
appellantâs co-accused was in
accordance with justice and should have made use of the review powers
conferred on it by
s 304(4)
of the
Criminal Procedure Act 51 of 1977
if it found that it was not. If the High Court has not done so it
should consider doing so now.
[8] The appeal is dismissed.
____________________
P E STREICHER
JUDGE OF APPEAL
CONCUR
:
BRAND JA)
NUGENT JA)