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[2012] ZAGPPHC 265
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S v Phakedi (A163/2012) [2012] ZAGPPHC 265 (7 November 2012)
NOT REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
NORTHGAUTENGHIGHCOURT, PRETORIA
CASE NO: A163/2012
HEARD: 05/11/2012
DELIVERED: 07/11/2012
In
the matter between:
KABELO
RICHARD
PHAKEDI
...............................................
APPELLANT
and
THE
STATE
.................................................................................
RESPONDENT
Coram:
Prinsloo J et Hughes AJ
JUDGMENT
[1]
The appellant was charged with one count of theft. It is alleged that
on 12 April 2007 he put his hand through an open window
of an
unoccupied Volkswagen Beetle and stole a motorised gate controller
valued at R100.00. On 31 March 2009 he appeared in the
Klerksdorp
Magistrate court and was legally represented. On 18 November 2009
he pleaded guilty to the charge preferred
against him and was
duly convicted. On 18 January 2010 he was sentenced to six years
imprisonment. Leave to appeal in respect of
the sentence was granted
on 04 February 2010.
[2]
In mitigation of sentence the following factors were placed before
the presiding officer:
(a)
The appellant was 35 years of age at the time of the commission of
the offence;
(b)
He is unmarried but has two children, a boy aged sixteen years and a
girl aged six;
(c)
His highest standard of education is standard eight (grade 10). He
had worked at Kuma Wholesalers earning R600.00 per week prior
to his
arrest;
(d)
He has been in custody for nine months awaiting trial in respect of
this matter;
(e)
He pleaded guilty from the outset and as such illustrated a measure
of remorsefulness. He also saved the court a lot of time
that could
have been spent during a full-blown trial.
(f)
The item stolen was of little value. No damage was done to the car
and apart from some inconvenience to the complainant for
the loss and
non-use of the remote control gadget the complainant suffered no
prejudice.
[3]
The aggravating factors are that:
(a)
Theft is a serious crime and the community needed to be protected
against the like of the appellant who deprive them of their
property.
(b)
The appellant's lists of previous convictions stretch from as far
back as 28 October 1996 to 27 May 2008 (eight in total). Those
of
relevance are:
(i)
On 17 September 2004 he was convicted of being in possession of
suspected stolen property and was sentenced to a fine of R1500.00
or
six months imprisonment and a further R1000.00 or three months
imprisonment which was suspended for three years;
(ii)
On 19 December 2004 he was convicted of theft and sentenced to five
months imprisonment;
(iii)
On 05 January 2006 he was again convicted of being in possession of
property suspected to have been stolen and was sentenced
to six
months imprisonment.
[4]
Ms Augustyn appeared on behalf of the appellant and Mr Pienaar on
behalf of the state. I am indebted to both counsel for their
heads of
argument which were of great assistance. In Mr Pienaar's heads of
argument reference is made to a few decided cases where
pronouncements are made that theft from a motor vehicle is considered
a serious offence and very prevalent in South Africa.
[5]
In considering the issue of sentence, I am mindful of the principles
set out in S v Pillay
1977 (4) SA 531
(A) at 535E-G:
"As
the essential inquiry in an appeal against sentence, however, is not
whether the sentence was right or wrong, but whether
the Court in
imposing it exercised its discretion properly and judicially, a mere
misdirection is not by itself sufficient to entitle
the Appeal Court
to interfere with the sentence; it must be of such a nature, degree,
or seriousness that it shows, directly or
inferentially, that the
Court did not exercise its discretion at all or exercised it
improperly or unreasonably. Such misdirection
is usually and
conveniently termed one that vitiates the Courts decision on
sentence".
[6]
In addressing sentence I am also mindful of the dictum in S v Rabie
1975(4) SA 855 (A) at 862G-H:
"Punishment
should fit the criminal as we/I as the crime, be fair to society, and
be blended with a measure of mercy according
to the circumstances/'
This approach of "the triad consisting of the crime, the
offender and the interest of society"
was further enunciated in
S v Zinn
1969 (2) SA 537
(A) at 540G.
[7]
It is so that the appellant was convicted of a serious offence which
merits severe punishment. However, "courts must guard
against an
over-eager imposition of exemplary sentence and must not
over-emphasise the gravity of the offence and the interest
of the
community at the expense of the interests and personal circumstances
of the particular offender". See S v Smith
2002 (2) SACR 488
(C)
at 490H-J.
[8]
The magistrate made the following remarks upon imposing sentence:
"Nou
u is V? person wat gereeld met die gereg bots....Die hof hou egter in
gedagte dat die waarde van die eiendom hier ter
sprake nie baie hoog
is nie, maar u het hierdie misdaad gepleeg in 2007 en dit blyk dat u
het vir ln tyd daarmee weggekom... Dit
is moeilikvir die
Suid-Afrikaanse Polisie om misdadigers op te spoor in gevalie soos
hierdie en diefstalie van uit motorvoertuie
is aan die orde van die
dag. U het hierdie item gesteel uit hierdie voertuig. Wat u daarmee
wou doen weet die hof nie. Dit is 'n
item wat waardeioos is, maar die
hof wonder of u dit nie wou gebruik het om dalk toegang tot die
perseel te verkry op ln latere
stadium nie veral wanneer die hof kyk
na u rekord...Die gemeenskap soos die hof reeds vir u vermeld het is
so te se "up in
arms" oor hierdie tipe van misdade en die
hof moet gehoor gee aan hierdie tipe van krete van die gemeenskap af
Die hof moet
probeer om hulle eiendom te beskerm teen mense soos u"
[9]
It is evident that the Magistrate failed to balance and judicially
assess all the factors relevant before sentencing. Though
there is an
acknowledgment that the item taken from the motor vehicle was not of
much value, even so the Magistrate placed a lot
of emphasis on the
court's obligation to society and to the fact that the appellant
almost got away with this offence. It is evident
that not much
weighing up of the aggravating features against the mitigating
factors had taken place. Further, no consideration
was given to the
fact that the appellant pleaded guilty; that he had been in custody
for a period of nine months awaiting this
trial; was in gainful
employment prior to his arrest; had two children to maintain; that no
damage occurred to the motor vehicle
and that the item taken was of
little or minimal value.
[10]
Even in the face of the listed aggravating factors a sentence of six
years for theft of an item worth R100.00 is shockingly
harsh. The
dictates of justice therefore require that the sentence be considered
afresh and be ameliorated. In my view a sentence
of four (4) years
imprisonment would be appropriate.
In
the circumstances the following order is made:
1.
The appeal against sentence succeeds to the extent that the sentence
of six (6) years imprisonment is set aside and is replaced
with the
following:
"(a)
The accused is sentenced to a term of four (4) years
direct
imprisonment, (b) In terms of article
103 Act 60
of 2000 the accused
is declared unfit to possess a firearm".
2.
In terms of
Section 282
of the
Criminal Procedure Act 51 of 1977
this
sentence is antedated to 18 January 2010.
HUGHES
AJ
NORTH
GAUTENG HIGH COURT PRETORIA
I
concur
PRINSLOO
J
NORTH
GAUTENG HIGH COURT
PRETORIA