S v Oosthuizen (313/06) [2006] ZASCA 131; 2007 (1) SACR 321 (SCA) (30 November 2006)

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[2006] ZASCA 131
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S v Oosthuizen (313/06) [2006] ZASCA 131; 2007 (1) SACR 321 (SCA) (30 November 2006)

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The
accused has a preponderance of violence.’
This was a material
misdirection. The offences of which the appellant was previously
convicted took place a long time ago and they
appear to be
interrelated. His conclusion that the appellant ‘has a
preponderance of violence’ is unfounded.
[11] In the circumstances of this
case, the magistrate rightly discounted a non-custodial sentence. The
appellant assaulted a youth
whom he employed and who was virtually in
his care. The assault was a serious one. However, the magistrate,
probably because of his
view that the appellant had a propensity for
violence, erred in not considering the kind of custodial sentence
provided for in terms
of s 276(1)
(i)
of the Act. The court
below in confirming the sentence imposed by the magistrate itself
erred by not considering the provisions and
advantages of s 276(1)
(i)
of the Act. In
S v Scheepers
2006 (1) SACR 72
(SCA)
at 76e-g (para 10) the following
appears:
‘
The
particular advantage of s 276(1)
(i)
should always be in the
foreground when the sentencer considers that a custodial sentence is
essential, but the nature of the offence
suggests that an extended
period of incarceration is inappropriate. In such cases, s 276(1)
(i)
achieves the object of a sentence unavoidably entailing imprisonment,
but mitigates it substantially by creating the prospect of
early
release on appropriate conditions under a correctional supervision
programme. This sentencing option seems tailor-made for
the
appellant’s offences. Neither the magistrate nor the High Court
considered its precise advantages. Their failure to do so requires
us
to intervene.’
[12] In the present case a sentence of
imprisonment in terms of s 276(1)
(i)
is appropriate. It will
serve as a deterrent and will bring home to the appellant and others
that behaviour of the kind in question
will not be tolerated. It will
promote rehabilitation and will achieve a balance between the
appellant’s interests and those of
society. The extended period of
incarceration imposed by the magistrate, seen in the light of the
totality of the circumstances of
the present case, is unwarranted and
has the potential to break the appellant. The misdirection referred
to in para [10] and the
magistrate’s failure to consider
s 276(1)
(i)
as a sentencing option requires us to
intervene.
[13] The appeal succeeds to the extent
reflected in the order that follows. The sentence imposed by the
magistrate is set aside. In
its stead the following sentence is
imposed:
‘
18
months’ imprisonment in terms of
s 276(1)
(i)
of the
Criminal
Procedure Act 51 of 1977
.’
_________________
M
S NAVSA
JUDGE
OF APPEAL
CONCUR:
MALAN
AJA
CACHALIA
AJA