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[2012] ZAGPPHC 120
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Kubheka v S (A848/10) [2012] ZAGPPHC 120 (20 June 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
NO. A848/10
DATE:20/06/
2012
In
the matter between:
THULANIGOODHOPE
KUBHEKA
.........................................................................
APPELLANT
And
THE
STATE
........................................................................................................
RESPONDENT
JUDGMENT
MOLOPA-SETHOSA
J
The
Appellant was charged in the Nigel Regional Magistrate's Court with
the following charges:
♦
Count
1. Housebreaking with intent to steal and theft;
♦
Count
2. Theft out of a motor vehicle.
The
Appellant pleaded guilty on both counts on 5 November 2009 and a
statement in terms of section 112(2) of the Criminal Procedure
Act,
as amended, Act 51 of 1977 ("The Act") was submitted to the
trial court.
He
was accordingly convicted on the same day 5 November 2009 on both
counts.
The
Appellant was in terms of section 286(1) of the Act declared a
habitual criminal in respect of count 1. In respect of count
2 he was
sentenced to 4 years' direct imprisonment. The trial court further
ordered that the sentence in respect of count 1 shall
run
concurrently with any other sentence that the Appellant was serving
at the time. The trial court ordered that the sentence
in respect of
count 2 shall run concurrently with that in respect of count 1. The
Appellant was further declared unfit to posses
a firearm.
The
appellant brought an application for leave to appeal against his
sentence on 22 August 2010 before the learned magistrate a
quo and
the leave to appeal was granted by the learned magistrate.
The
appellant was legally represented during the trial.
The
facts that led to the conviction can briefly be summarised as
follows: in respect of count 1, the Appellant on or about 26 October
2008 and at Heidelburg, broke into the flat of one Neels Erasmus by
removing a glass panel of the window, and opened the window
to gain
access into the flat with the intention to steal. He thereafter stole
two (2) taps and a bore machine, valued at R350.00
and R500.00
respectively. In respect of count 2, the Appellant on or about 06
November 2008 and at Heidelburg, broke the passenger
window of a
motor vehicle, Opel Corsa, belonging to one Magdalena Burger. He
thereafter stole a pair of sunglasses, [the value
whereof is not
stated], out of the vehicle in question.
The
state proved the following previous convictions against the
Appellant:
1.
1998 - Malicious damage to property, sentenced to 3 months
imprisonment, wholly suspended.
2.
1999 - Housebreaking, sentenced to 18 months imprisonment.
3.
2002 - Theft, sentenced to Rl 000 or 12 months imprisonment, of which
half was suspended for 5 years.
4.
2002 - Theft, sentenced to R 1000 or 50 days imprisonment, of which
half was suspended for 3 years.
5.
2003 - Theft, sentenced to R800 or 40 days imprisonment, which was
wholly suspended for 3 years.
6.
2003 - Theft, of which he was cautioned and discharged.
7.
2004 - 3 Counts of Theft and 1 Count of Housebreaking; the 4 counts
taken together for purposes of sentence and appellant sentenced
to 8
years imprisonment, of which 3 years was suspended for 5 years.
8.
2005 - Theft, sentenced to 4 years imprisonment which was wholly
suspended for 5 years
9.
2008 - Theft, sentenced to 3 years imprisonment, and declared unfit
to possess a firearm in terms of s 103 (1) of Act 60 of 2000
It
does not appear from the record [and on the list of previous
convictions] that the appellant was at any stage warned that he
could
be declared a habitual criminal in terms of the provisions of s 281
of the Act.
7.
The following personal circumstances of the Appellant were placed on
record:
•
The
Appellant was 32 years old;
•
He
is single;
•
The
Appellant had a girlfriend who was pregnant at the time of his
arrest. At the time of sentencing he however did not know what
had
happened with the girlfriend.
•
The
Appellant was employed during January to April 2008 by JM Security in
Heidelberg. He was however dismissed as he could not receive
a
certificate due to his list of previous convictions. [It was argued
that because of the Appellant's failure to secure employment,
he was
placed in a position in which he stole to survive];
•
The
Appellant had passed grade 7 at school;
•
The
Appellant is not a sophisticated person;
•
The
Appellant pleaded guilty and did not waste the court's time;
•
The
Appellant is HIV positive and realises that he went astray in life by
committing crimes, and that he was determined to change
and live an
honourable life.
The
Appellant in essence appeals against the severity of the sentence and
submits that the sentence in count 1 is shocking and not
justified in
the circumstances.
The
imposition of a sentence is pre-eminently for the sentencing court.
It is trite that a court of appeal does not lightly interfere
with a
sentence imposed by the court of first instance; see R v Lindley,
1957 (2) SA 235
(N). A court of appeal will interfere with the
sentence only if there is a material misdirection or if the court
could not, in
the circumstances of the case, reasonably have imposed
the particular sentence; see S v Pieters
1987 (3) SA 717
(A) at 734
E.
SECTION286
(1) provides as follows:
"Subject
to the provisions of subsection (2), a superior court or a regional
court which convicts a person of one or more offences,
may, if it is
satisfied that the said person habitually commits offences and that
the community should be protected against him,
declare him an
habitual criminal in lieu of the imposition of any other punishment
for the offences or offences of which he is
convicted" [my
underlining].
It
appears that the trial court declared the Appellant a habitual
criminal solely based on his previous convictions. The trial court
found that the community ought to be protected from the Appellant.
Counsel
for the Appellant, Ms Van Wyk submitted that the trial court failed
to properly consider the facts of the charges in mitigation
of
sentence. That the low value of the stolen items was not properly
considered by the trial court. She further submitted that
an
effective period of 15 years imprisonment is too harsh given the
facts of this case and is disproportionate to the facts of
the case.
That the list of previous convictions ought not to have outweighed
the low value and small amount of items which were
stolen.
It
appears that the trial court mainly focused on the previous
convictions of the Appellant to justify the sentence. Nowhere on
the
record does it show that an inquiry was held to investigate the
nature and circumstances under which the Appellant had committed
the
previous crimes. The SAP 69's of the Appellant does not indicate that
he had been warned at any stage of the existence and
consequences of
s 286 of the Act; i.e. that he is at risk to be declared a habitual
criminal.
Also,
the Appellant was not warned in this case, prior to the imposition of
sentence, of the possibility that he may be declared
a habitual
criminal in terms of s 286 of the Act, nor was his legal
representative invited to make submissions in this regard.
In
essence the state also conceded that it also had problems with the
fact that the learned magistrate a quo did not gather enough
information pertaining to the nature and circumstances of the
Appellant's previous and present convictions, to thoroughly inform
himself prior to imposing the sentence herein.
Surely
a court, when declaring an accused a habitual criminal, is punishing
the accused also for his previous convictions. In my
view it is
prudent that a sentencing court should therefore enquire into the
circumstances under which the previous convictions
were committed.
Refer S v Mdliva
1981 (2) SA 475
(E); and S v Stenge 2008(2) SACK 27
(C). This ought to be done especially in circumstances where such an
accused had not previously
been warned in advance of the provisions
of s 286 of the Act.
Although
a previous warning of the applicability of s 286 of the Act is not a
legal requirement, a trial court ought then to hold
a more careful
inquiry into the nature and circumstances of the previous convictions
and an investigation then becomes necessary.
A prior warning however
is a desirable practice. Refer S v Dyani
2004 (2) SACR 365
(E).
In
my view a court of appeal would be entitled to interfere in the
sentence where a sentencing court had failed in these circumstances,
to examine the nature and circumstances of the previous convictions.
Such a failure by a trial court amounted to an improper exercise
of
its discretion. Refer S v Masisi
1996 (1) SACR 147
(O)
A
trial court has to find that an accused is committing crimes out of
habit. See S v Makoula
1978 (4) SA 763
(SWA), Strydom J said the
following:
The
notion of committing crimes habitually, implies that the person
concerned has to be a person who has the insight to distinguish
between right and wrong and the ability to refrain from wrongdoing.
While he is capable of choosing between doing right and doing
nothing
or doing wrong, he makes a habit of doing the last. It is like the
habit of smoking, something which can be acquired and
which is
prejudicial and which he does not want to give up. "
The
question a trial court has to answer is whether there are sufficient
grounds for accepting that an accused is committing crimes
out of
habit. In this case it is clear that the trial court relied solely on
the list of previous convictions to come to this conclusion.
The
following was held in S v Stenge (supra) at paragraph [14]:
"i
am not convinced that force of habit is the only reasonable inference
that can be drawn from a long list of frequent previous
convictions.
In cases involving petty theft, the court, in considering whether to
apply section 281 (1), should have regard to
the socioeconomic
conditions of the offender as well as all other relevant factors in
determining what motivated the person. In
a country like South
Africa, where, as at March 2005, 26, 5 % (statistics SA 2005 labour
Force Survey) of the population remained
unemployed and where a vast
proportion of the population remained unemployed and vast proportion
of the population lived beneath
the poverty line, it is reasonable to
infer that there are cases where the frequent commission of petty
theft could be born out
of desperate poverty. That is not to say that
committing an offence for that reason is excusable or even a
mitigating factor in
all circumstances. It does, however, provide a
reason other than force of habit."
The
legal representative of the Appellant in mitigation at the court a
quo addressed the trial court on the reason for the commission
of the
offences. It was argued that the Appellant lost his employment due to
his previous convictions. The Appellant then gained
an income by
selling the stolen items. The trial court ought to have investigated
the circumstances under which the previous convictions
were committed
after this address by the legal representative.
I
align myself with the views stated by the learned Murray AJ in Stenge
supra ...that
"That
is not to say that committing an offence for that reason is excusable
or even a mitigating factor in all circumstances.
It does, however,
provide a reason other than force of habit. "
The
learned magistrate a quo did not advance any sound reasons why he was
satisfied that the offences were committed out of habit.
Although the
list of previous convictions shows that the previous sentences did
not have a deterrent effect, it would have been
more appropriate to
establish the reason for the continued transgressions, more
especially because the Appellant's socio-economic
circumstances were
canvassed by his legal representative in mitigation.
On
the facts of the case before us it is clear that the trial magistrate
did not exercise his sentence discretion properly. The
sentence thus
ought to be set aside and replaced with a sentence proportionate to
the facts of the case and taking into account
the circumstances under
which the Appellant had committed the offences.
The
sentence in our view ought to be set aside and replaced with the
following sentence:
1.
On count 1 the accused is sentenced to 7 years imprisonment.
2.
On count 2 the accused is sentenced to 4 years imprisonment.
3.
The sentence in respect of count 2 shall run concurrently with the
sentence in count 1.
4.
The accused is warned that should he be convicted of an offence of
which theft is an element he may be declared a habitual criminal
in
terms of
section 286(1)
of the
Criminal Procedure Act 51 of 1977
.
5.
The prison authorities are directed to convey the said warning
[prayer 4 hereto] to the Appellant and to favour the Registrar
of
this Court with a report confirming that they have done so.
6.
In terms of
section 282
of the
Criminal Procedure Act, Act
51 of1977,
as amended, the sentence is ante-dated to the 5th of November 2009.
L
M MOLOPA-SETHOSA
JUDGE
OF THE HIGH COURT
A
P LEDWABA
JUDGE
OF THE HIGH COURT
It
is so ordered