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[2013] ZAGPPHC 539
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Dials v S (A552/2012) [2013] ZAGPPHC 539 (28 May 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG DIVISION, PRETORIA)
CASE NUMBER:
A552/2012
DATE: 28 MAY 2013
In the matter
between:
ALFRED
DIALS
.........................................................................................................................
APPELLANT
and
THE
STATE
.............................................................................................................................
RESPONDENT
STRIJDOM AJ
DOSIO AJ
DATE OF HEARING:
28 MAY 2013
DATE OF JUDGMENT:
28 MAY 2013
COUSEL FOR
APPELLANT: ADV LA VAN WYK
COUNSEL FOR
RESPONDENT: ADV MD MATJOKANA
JUDGMENT
INTRODUCTION:
1. On 25 October
2011 the Appellant pleaded guilty and was convicted in the Regional
Court Klerksdorp, on three counts of housebreaking
with the intent to
commit theft and theft.
2.
The Court a
quo
took
all the counts together for the purpose of sentence and sentenced the
Appellant to a period of twelve years imprisonment.
3.
Leave to Appeal against the sentence imposed was granted on 6 July
2012.
SUMMARY
OF EVIDENCE:
4. The Appellant
pleaded guilty based on the following facts:
4.1. During June
2011 he broke in at Glass Fit. He stole R450.00 cash. He gained entry
through a window of which he had removed
the window strips.
4.2. On 29 August
2011 he broke in at Master Motors and stole the two fax machines, a
drill machine and a grinder with a total value
of R7,700.00.
4.3. During
September 2011 he broke in at Cars for Africa and stole a keyboard
and a computer screen. It is not clear what the value
of the stolen
items were.
SENTENCE:
5. The aspects
placed in dispute by the Appellant can be enumerated as follows:
5.1.The Trial Court
did not consider the cumulative effect of the sentences, and the
value of the stolen items.
5.2. The Trial Court
misdirected itself in not considering the proportionality of the
sentence and the cumulative effect of the
imposed sentences.
5.3. It is submitted
by counsel for Appellant that an effective period of imprisonment
would be three years.
6.
The Court a
quo
took
into consideration the following personal and mitigating factors:
6.1. Appellant is 30
years old.
6.2. He is single
but the father of three children.
6.3. The children
and mother resides with the uncle.
6.4.At the time of
the arrest Appellant was temporarily employed and earned R70.00 per
day.
6.5. The items
stolen in respect of count 3 were recovered.
7.
In considering the aggravating circumstances the Court a
quo
considered
the following factors:
7.1. The Appellant
is not a first offender. He was previously found guilty of theft.
7.2. Appellant was
released on parole.
7.3. The offence of
which the Appellant has been convicted is prevalent in the Regional
Division of Klerksdorp.
7.4. He has been
convicted on three counts of housebreaking with the intent to steal
and theft.
8.
In
S
v
Moswathupa
2012 (1)
SACR 259
SCA
it
was held that:
"Housebreaking
is an extremely prevalent offence and it is in the general public
interest that sentences imposed in these matters
should act as a
deterrent to others. The message needs to go out to the community
that people who commit these types of offences
will be dealt with
severely by the Courts
."
9.
The personal circumstances of the Appellant allude to above, were
taken into account by the Trial Court, However, pertaining
to the
personal circumstances of an accused in matters as serious as the
crime in question, the following was stated in the case
of
S
v Vilakazi
2009
(1) SACR 552
SA at 574 par [58]:
“
In cases
of serious crime the personal circumstances of the offender, by
themselves will necessarily recede into the background.
”
10. In assessing
whether an Appellant Court should interfere with a sentence the
disparity criterion is not always the appropriate
measure by which to
determine whether Appellate interference is competent. The crucial
factor which allows for the applicability
of the approach is the
Appellate Court’s being able to arrive at a definite view as to
what sentence it would have imposed.
See:
S
v
Matlala
2003 (1) SACR
80
SCA
11. The Trial Court
took all the relevant principles in regards to sentence as well as
the facts of the matter into consideration.
There is no reason to
find that the Trial Court misdirected itself in any way or that the
sentence imposed is unjust or inappropriate
in the circumstances.
12. In assessing all
the mitigating and aggravating circumstances I do not agree that the
sentence induces a feeling of shock.
ORDER:
13. Consequently the
Appeal against sentence is dismissed.
SIGNED AT PRETORIA
ON THIS THE 28
th
DAY OF MAY 2013
JJ
STRIJDOM
ACTING JUDGE OF THE
HIGH COURT
DOSIO AJ
ACTING JUDGE OF THE
HIGH COURT