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[2013] ZAGPPHC 50
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Chauke v S (A388/12) [2013] ZAGPPHC 50 (14 February 2013)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
APPEAL NO:A388/12
DATE:14/02/2013
In
the matter between:-
ROLANE
CHAUKE
….......................................................
Appellant
and
THE STATE
…....................................................................
Respondent
Van
Schalkwyk, A J
[1]
The Appellant, a 29 year old male, was convicted of one count of
housebreaking with the intent to steal and theft, in the Regional
court, Pretoria North, and sentenced to five years imprisonment in
terms of Section 276 (1)(i) of Act 51 of 1977.
[2]
Leave to appeal against conviction and sentence was refused in the
court a quo. The appellant petitioned the Judge President
of this
Court seeking leave to appeal against his conviction and sentence.
The appellant was granted leave to appeal against sentence
only.
[3]
The appellant’s conviction is based on the following factual
findings: The appellant and the co-accused broke into and
entered the
house of Charlene Slabbert, the complainant, on 4 April 2010. Entry
was gained by breaking a window pane in the bedroom
and the cost to
repair the broken window was R 610, 00. The appellant and his
co-accused were noticed by constable Jerry Mokanyane
shortly after
the incident occurred. They were carrying bags, but when they noticed
the police officer they dropped the bags and
ran. They were both
arrested and the complainant identified the goods in the retrieved
bags as her property.
[4]
On appeal, it was submitted on the appellants’ behalf that the
court a quo misdirected itself by only considering and
emphasizing
the seriousness of the offence and the interest of society without
evaluating the personal circumstances of the appellant.
The court
also failed to evaluate and rule on the numerous considerations that
constitute mitigating factors. It is also submitted
that retribution
and general deterrence was taken into account but not rehabilitation
and individual deterrence.
[5]
As far as the sentence is concerned the court took into account the
seriousness of the offence and the interest of society.
The
appellants’ personal circumstances namely that he is 29 years
old, and unmarried were taken into account. The appellant
has one
minor child; and his level of education is grade 12. The appellant
has no previous convictions. He does not display any
remorse and he
seems to be in good health. The purpose of sentencing was also taken
into account.
[6]
It is trite law that sentencing or punishment is pre-eminently a
matter of discretion of the trial court. See S v Rabie
1975 (4) SA
855
(A) of 857 D-E. It is because of this that an appeal court will
be reluctant to interfere with the trial courts’ discretion.
An
appeal court may interfere if the discretion has not been judicially
and properly exercised or the sentence is vitiated by irregularity,
misdirection or is disturbingly inappropriate.
[7]
The court must weigh the mitigating factors against the aggravating
factors. The court must guard against over emphasizing one
of the
factors because it would lead to an unbalanced sentence. The court a
quo correctly took into account the seriousness of
the offence, the
interest of society, the prevalence of the offence, the fact that the
type of offence constitutes a major invasion
of the private lives of
the citizens and the need for proper sentences.
[8]
The court a quo failed to make a finding as to the existence or
non-existence of the mitigating factors in favour of the appellant.
In S v Nkosi
2012 (1) SACR 87
(GNP) paragraph [30] it was held that:-
"...there
is still a need to maintain a healthy and proper balance between the
interests of society, the nature of the offence
and the offender.
Aggravating of sentences to combat increasing prevalence of a
particular crime must not lead to an inevitable
negation of the
accused’s personal circumstances..."
[9]
The following glaring mitigating factors in favour of the appellant
have been disregarded by the court a quo: ttr&t the
offender was
a first offender; he was gainfully employed until his arrest; he has
one minor child who is dependant on him. The
pre-sentence report
favours the accused in the sense that there is no likelihood that he
will commit the offence again. He spent
18 months in custody awaiting
the finalization of the matter. In S v Kruger
2012 (1) SACR 369
(SCA)
it was held that: “...It is only fair to consider the period
spent in prison awaiting trial, especially where it is
a lengthy
period, in determining an appropriate sentence for the offences
committed.” The fact that the pre-sentence report
states that
the appellant is a candidate for rehabilitation and he should be
allowed to be a productive member of society, has
been disregarded.
[10]
The court a quo misdirected itself by merely mentioning the personal
circumstances but failing to evaluate and take them into
consideration during sentence proceedings. This caused the sentence
imposed on the appellant to be shockingly severe and disproportionate
to his personal circumstances and mitigating factors.
[11]
The appellant has served 14 months imprisonment and spent 18 months
in custody awaiting trial. In total he has been incarcerated
for a
period of approximately 32 months.
[12]
Having regard to all the factors it is clear that the trial court has
misdirected itself when it comes to sentencing and the
sentence
warrants interference.
[13]
In light of the above I propose the following order:- The appeal
against the sentence succeeds;
[14]
I propose that the sentence imposed by the court a quo is set aside
and the following substituted for it:
The
appellant is sentenced to five years imprisonment of which three
years is suspended for a period of five years on condition
that the
appellant is not convicted of housebreaking with the intent to steal
and theft or of theft, for which a sentence of imprisonment
without
the option of a fine is imposed and which was committed during the
period of suspension.
In
terms of the provisions of section 282 of Act 51 of 1977, the
sentence is ante dated to the 5 December 2011.
The
declaration in terms of Section 103 (1) of Act 60 of 2000 is upheld
and it is confirmed that the appellant is deemed unfit and
is
accordingly declared unfit to possess a firearm.
Van
Schalkwyk AJ
I
agree and it is so ordered
Preller
J