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[2013] ZAGPPHC 345
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S v Nkosi (A08/2013) [2013] ZAGPPHC 345 (21 November 2013)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
HIGH
COURT REF. NO.: 599
MAGISTRATE’S
SERIAL NO: 01/2013
CASE
NUMBER: A08/2013
DATE:
21 NOVEMBER 2013
In
the matter between:
THE
STATE
v
FRANS
SIBUSISO NKOSI
REVIEW
JUDGMENT
TOLMAY,
J:
[1]
This matter came before me by way of review in terms of
sec 304
of
the
Criminal Procedure Act, 51 of 1977
.
[2]
The accused, a 20 year old male, was convicted in the Waterval- Boven
Magistrate’s Court on a charge of housebreaking
with intent to
steal and theft. He was sentenced to 24 months direct imprisonment,
half of which was suspended for 3 years on condition
that he is not
again convicted of housebreaking with intent to steal and theft
during the period of suspension. He was declared
unfit to possess a
firearm. The accused elected to conduct his own defence during the
proceedings in the court a quo.
[3]
After perusing the record I asked the learned magistrate to comment
on the following:
3.1
“In the light of the fact that the state chose to proceed
without proving previous convictions could the court, when sentencing
the accused, take into consideration previous convictions?
3.2
Was the probation officer’s suggestions that the accused be
held in a Youth Care Facility a viable option in the light
of the
fact that the accused was older than 18 years when he committed the
crime?
3.3
Should the learned magistrate not have indicated during sentence why
the recommendation of the probation officer was not followed?”
[4]
The magistrate replied and stated that he did not take the previous
convictions of the accused into account, that despite the
fact that
he
referred
to the accused’s previous convictions during sentencing. He
went further to state that the accused has a propensity
to commit
crime and had appeared before him on two counts of housebreaking. He
stated pertaining to the second question that the
probation officer’s
report was not convincing. He conceded that he should have dealt with
the recommendation of the probation
officer.
[5]
The DPP was approached to comment. The DPP is of the view that:
(a)
the magistrate erred in taking into consideration previous
convictions;
(b)
that the accused should have been dealt with as an adult, seeing that
he was older than 18 years when he committed the crime;
and
(c)
that the magistrate should have dealt with the reasons why he
deviated from the probation officer’s report.
PREVIOUS
CONVICTIONS
[6]
The state proved no previous convictions. Despite that the fact that
the magistrate states as follows during sentencing: “and
lastly
the court will also take cognisance that you are not a first offender
before the court although it was not read out your
SAP69 and it does
not reflect during this ... (indistinct) the report of the
correctional supervision”, (p 12
rule 7
-
10
of the record).
[7]
When the State decides to proceed with sentencing proceedings in a
case without proving the previous convictions the trial court
cannot
take into account the previous convictions, which it clearly did in
this instance.
[8]
In the event that a trial court becomes aware of the existence of
previous convictions through a prepared report for purposes
of
sentence, the court may, if it deems it to be in the interest of
justice, request the state that the records of previous convictions
must be made available to it, before an appropriate sentence can be
imposed. This was not done in this instance.
[9]
In the light of all the facts the magistrate erred in taking into
consideration the previous convictions and also erred in taking
into
consideration crimes that were committed by the accused after this
incident.
THE
AGE OF THE ACCUSED
[10]
At the time when the accused committed this crime he was 20 years
old. He was, because of his age, and for the purpose of a
distinction
between an adult and a child offender, no longer considered to be a
child. If the accused was at the time when he committed
this offence,
not older than 18 years, specific considerations would apply when
dealing with his sentence. The provisions of the
Child Justice Act 75
of 2008
would then be applicable.
[11]
Due to the accused’s age the recommendations of the probation
officer that the accused be held in a youth care facility
was not a
viable option. The court was dealing with an adult and the
legislation applicable to children could not be applied.
REASONS
FOR DEVIATION FROM THE PROBATIONS OFFICER’S
REPORT
[12]
Due to the fact that the accused was an adult, this aspect becomes
irrelevant, but for the sake of completeness I deal with
the issue.
[13]
The provisions of
section 71(4)
of the
Child Justice Act 75 of 2008
,
enjoins a presiding officer who imposes a sentence other than that
recommended by the probation officer to enter the reasons for
the
imposition of the different sentence on the record. This was not done
in this instance.
CONCLUSION
[14]
The accused must be treated as a first offender and alternative
sentencing options should have been considered rather than
direct
imprisonment. The DPP recommends that the sentence be set aside and a
suspended sentence be imposed. I agree with this point
of view.
[15]
In the light of all the circumstances the sentence cannot stand.
[16]
The following order is made:
1.
The conviction is confirmed, and
2.
The sentence is set aside and replaced with the following: “The
accused is sentenced to six (6) months imprisonment wholly
suspended
for three (3) years on condition that the accused is not found guilty
of a crime of which dishonesty is an element during
the period of
suspension.”
R
G TOLMAY
JUDGE
OF THE HIGH COURT
I
agree:
C
PRETORIUS
JUDGE
OF THE HIGH COURT