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[2013] ZAGPPHC 215
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Sigasa v S (A908/2012) [2013] ZAGPPHC 215 (25 July 2013)
IN THE NOTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NO: A908/2012
DATE:25/07/2013
In
the matter between:
MDUDUZI MCDONALD
SIGASA
…................................................................
APPELLANT
And
THE
STATE
..........................................................................................................
RESPONDENT
JUDGMENT
PHATUDI
AJ
1.
BACKROUND INFORMATION:
1.1
This is an appeal on sentence noted by the Appellant, following his
conviction on a count of house breaking by the Standerton
District
Court on 23 August 2011. He was subsequently brought before the
Regional Court Magistrate Standerton for sentencing, the
matter
having been remitted to that Court for the imposition of sentence,
which was meted out on 16 November 2011. The Appellant
was as a
result, imprisoned to an effective term of 8 years for the crime with
which he has been convicted.
1.2
The Appellant was through out the trial represented by his Attorney,
Mr. Isak.
1.3
On the 14 December 2011, the Appellant, through his Attorney, applied
to the Regional Court Magistrate before whom he appeared
for leave to
appeal the sentence of effective 8 years imprisonment imposed against
him, on grounds that it was too harsh, and that
his personal
circumstances were not taken into account for the purpose of
sentence. The State opposed leave to appeal the sentence,
contending
merely that “the accused has been stealing a long time ago,
during the time of corporal punishment”. The
result was that
leave to appeal the sentence alone, was declined by the Court below.
1.4
Aggrieved by the Court a auo’s refusal, as it were, the
Appellant subsequently petitioned this Court on 21 November 2011,
and
leave to appeal against the sentence only, was granted on 14 November
2012.
1.5
These briefly, were the facts giving rise to this matter.
2.
THE ISSUE TO BE DECIDED ON APPEAL AGAINST THE SENTENCE:
The
question that now arises for consideration by this Court, is whether
the 8 years imprisonment term the Court below imposed against
the
Appellant, finds reflection to the well-known general principles of
our law when selecting a fair, just, and equittable sentence,
particularly, given the facts of the case presently before us, on
sentence.
3.1
We must immediately remark that it is trite practice of our law, that
a Court of appellate jurisdiction may not, and ought not
lightly
disturb a carefully selected imprisonment term imposed by the Court
below, except where it is satisfied that the sentence
discretion has
been improperly or unreasonably exercised, in circumstances where the
sentence so imposed induces a sense of shock,
or startlingly
inappropriate.
See:
S v Pieters 1987(3) SA 717 (AD)
S
v Lewis 1997(1) SACR 235m at 240-
3.2
In performing a balancing act when imposing a sentence against an
offender, the sentencing court ought to bear in mind the well-defined
general principles for sentencing offenders, which were carefully
crafted and crystallized over the years by our Courts. What Holmes
JA. stated in S v Sparke 1972(3) SA 396 (A) that:-
“
On
the other hand, the offences were, without doubt, very grave, and in
addition to the matter of punishment the deterrent aspect
calls for a
measure of emphasis, lest others think the game is worth the candle.
Nevertheless, the Appellants must not be visited
with punishment to
the point of being broken. Punishment must fit the criminal as well
as the crime, be fair to the State and the
accused, and be blended
with a measure of mercy” .... mercy is. but an element of
justice and equity and the sentiments remains
true even in this day
and age.
3.3
In our view, therefore, having had regard to the approach adopted by
the Court below, it appears that the personal circumstances
of
appellant were not taken into account when punishment against him was
inflicted, which our law required that it should have
been
considered.
[P18 - 19, Lines 5-15, Record].
Furthermore,
the nature of the crime committed is similarly, an obvious factor,
but even if the crime can be described an ugly offence,
striking
cancerously at the roots of justice and integrity, this
denunciatively emotive description, should not be allowed to
transcend all other considerations in arriving at a just and balanced
sentence.
See: S v Naker
1975 (1) SA 583
(A) at
586
3.4
For the purposes of this appeal matter, it is clear that Learned
Magistrate did not properly consider, if he did, that the previous
conviction which related to house breaking had occurred some nine (9)
years before Appellant was arraigned and charged after he
committed
the offence during or on 01 March 2011.
[See: P.17, Line 5, Record]
There
was no sufficient evidence from the record of the sentencing
proceedings to suggest that Appellant committed a similar offence,
within
that lengthy period referred to, save for the alleged conviction for
escaping from lawful custody during 2009.
[See: P.15, Line 25, Record]
3.5
One may even be tempted to remark, although orbiter (in passing) that
even the submission the State made in which it was alleged
that “from
1992 you have been stealing; and assaulted with corporal punishment”
were allegations in respect of which
no evidence was led in
aggravation of sentence, left much to be desired.
3.6
It is of course, also worthy to mention that even the value of the
goods or items stolen, which were said to be worth R748.00,
should
not have attracted 8 years effective term of imprisonment
particularly that the stolen items were all recovered on the spot.
3.7
In the circumstances, the Appellant should have also been treated as
a first offender when he was visited with the sanction
appealed
against. We hold, therefore, that due to the harshness of the
sentence, which is invariably hair-raising, this Court is
perfectly
entitled to interfere and disturb the 8 years term of imprisonment
imposed against the Appellant. The appeal on sentence
accordingly
ought to succeed, and the sentence as imposed be substituted as
follows:-
COURT
ORDER
1.
The appeal on sentence is upheld.
2.
The sentence of 8 years imprisonment imposed is hereby set aside, and
is substituted for the following sentence:-
“
The
Appellant is sentenced to a term of imprisonment of (3) three years,
which is wholly suspended for a period of (5) five years
on condition
that he is not convicted of a similar offence during the operation of
the suspension period”.
3.
The sentence is predated to 16 November 2011.
Date
delivered: 25 July 2013
PHATUDI
AJ
KHUMALO
J
I
CONCUR AND IT IS SO ORDERED