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[2012] ZAGPPHC 306
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De Bruin v S (A426/2011) [2012] ZAGPPHC 306 (26 November 2012)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Case
No: A426/2011
DATE:26/11/2012
In
the matter between:
Anthony
Fabian de
Bruin
......................................................
Appellant
and
The
State
...................................................................................
Respondent
JUDGEMENT
OOSTHUIZEN
AJ.
[1.]
This is an appeal against the sentence imposed on 14 March 2011 upon
the appellant, Anthony Fabian de Bruin, by the Magistrate
Court for
the District of Brakpan on a charge of theft after a plea of guilty.
The appeal is with the leave of that court. The
theft was one of two
cell phones belonging to third parties and alleged to have a total
value of R 6,000.00 (six thousand rand).
For that conviction the
sentence imposed was, firstly, a sentence of three (3) years
imprisonment and, secondly, an order in terms
of
section 103
of the
Firearms Control Act 60 of 2000
declaring the appellant unfit to
possess a firearm.
[2.]
The factual background is briefly that the appellant entered the
business premise of a third party in Brakpan on 10 February
2011. He
claims that he did so in order to enquire about some assistance but
it is unclear precisely what the purpose of his visit
was. The
appellant was, at the time, a street vendor selling fruit and he
apparently entered to premises in order to sell fruit.
Be that as it
may, he saw two cell phones lying on a table, proceeded to take those
cell phones and put them in his pocket where
after he immediately
absconded with them. Someone saw him and alerted the owners of the
cell phones and they gave chase. The appellant
was stopped in the
street and confronted, whereupon he gave the cell phones back to the
owners. They called the South African Police
Service and had him
arrested. In the written statement, handed in by the appellant’s
legal representative in terms of
section 112(2)
of the
Criminal
Procedure Act 51 of 1977
, the appellant freely admitted to an
intention, at the time of the commission of the crime, to permanently
deprive the owner or
lawful holder of those cell phones of their
property and to a knowledge of unlawfulness. In court he also
answered frankly that
he took the cell phones in order to sell them.
[3.]
The appellant was arrested on 10 February 2011 and after a few
postponements he pleaded guilty on 14 March 2011. His written
statement, as contemplated in
section 112(2)
of the
Criminal
Procedure Act 51 of 1977
, was to the satisfaction of both the
prosecutor and the trial court, whereupon a conviction for the theft
followed. The appellant
was thus in custody for a period of about one
(1) month pending trial. Having been caught red-handed, the accused
clearly had no
other choice than to plead guilty.
[4.]
What is not clear is whether or not the appellant admitted to the
value of the two cell phones, which was stated to be R 6.000.00
in
total; certainly no proof of the value thereof was given nor did the
trial court investigate this aspect. Except for the reference
to
value in the charge sheet, the written statement of the appellant
refers twice to that value. The first reference is clearly
not an
admission of any value but a recordal of the information that the
legal representative obtained from the prosecution. The
second
reference when viewed in isolation is also ambiguous, although Adv
Vorster for the respondent argued that, in context, the
reference to
value was an adoption by the appellant thereof. The appellant’s
statement reads that “
apparently
someone saw me remove and conceal the cell phone as mentioned in the
charge street to the value R 6,000.00."
This argument is tenable but the statement, in our view, remains
ambiguous. Was the appellant repeating what was stated in the
charge
sheet and conveyed to him, or was he admitting the value in question?
The question is answered when the evidence is evaluated
in its
totality and the written statement of the appellant is taken into
consideration in the context of his plea of guilty. There
can be no
doubt that he, by implication and through his conduct, admitted to
the value. Adv Vorster for the respondent adopted
this latter
argument during the hearing and Adv Mashuga for the appellant
conceded that the value of the cell phones was never
in dispute.
This, in our view, removes this theft from the category of petty
thefts and goes to the seriousness of the crime that
was committed.
[5.]
Although in the end the ambiguity about value can be and was
addressed, note should be taken of a decision such as S
v
Gqobozo
2005 (1) SACR 589
(C) (referred
to with approval in S
v Machete
2007 (1) SACR 398
(T)) in which the court held that a magistrate was
not entitled to assume what the value of the stolen goods was but
that it should
be proved by the State or else admitted by the
accused. In the legal fraternity it is well known that various
complications can
arise as a result of assumptions. Even where such
value is admitted by implication and through conduct, the more
cautious approach
would be to deal with the issue of the value of
stolen goods separately and expressly.
[6.]
After conviction the prosecutor proceeded to produce to the trial
court for admission or denial by the appellant a record of
previous
convictions alleged against him, to which he admitted in terms of
section 271
(4) of the
Criminal Procedure Act 51 of 1977
. Those
previous convictions were as follows:
a
conviction on 23 March 2004 (when the appellant would have been some
18 years old) for robbery, for which he was sentenced to
three (3)
years imprisonment of which half was suspended for five (5) years on
condition that he is not found guilty of robbery
committed during the
period of suspension; a conviction on 28 June 2004 for theft
(committed on 7 May 2004, within two (2) months
after the previous
conviction and during the period that ostensibly he should have been
in prison), for which he was sentenced
to R 1,000.00 or four (4)
months imprisonment suspended for three (3) years on condition that
he is not found guilty of theft or
attempted theft committed during
the period of suspension;
a
conviction on 18 October 2004 for theft (committed on 16 October
2004, within three-and-a-half (3/4) months afterthe previous
conviction, during the period that ostensibly he should have been in
prison and during the aforesaid period of suspension) for
which he
was cautioned and discharged - apparently a petty theft which did not
warrant that the suspended sentence of 28 June 2004
be put into
operation;
a
conviction on 14 February 2005 (when the appellant would have been
some 19 years old) for theft (committed on 13 February 2005,
within
three-and-a-half (3
1
/
2
)
months after the previous conviction and during the aforesaid period
of suspension) for which he was sentenced to R 1,000.00 or
six (6)
months imprisonment suspended for five (5) years on conditions not
appearing from the record; in addition he was (in terms
of
section
103
of the
Firearms Control Act 60 of 2000
) declared unfit to posses
a firearm;
a
conviction on 5 July 2005 for housebreaking with intent to steal and
theft (committed on 3 April 2005, within one-and-a-half (1%)
months
afterthe previous conviction and during the aforesaid periods of
suspension) for which he was sentenced to three (3) years
direct
imprisonment but in terms of
section 276(1
)(i) of the Criminal
Procedure Act 51 of 1977 (in other words, imprisonment from which
such a person may be placed under correctional
supervision in the
discretion of the Commissioner of Correctional Services or a parole
board), something which the prosecutor and
the trial court did not
notice; a conviction on 16 April 2007 (when the appellant would have
been some 21 years old) for theft
(committed on 20 March 2007, more
than twenty (20) months after the previous conviction but still
during the aforesaid periods
of suspension)
for
which he was sentenced to R 2,000.00 or six (6) months imprisonment
suspended for five (5) years on condition that he may not
commit a
similar offence during the period of suspension -
prima
facie
his incarceration explains the
twenty (20) months; and
a
conviction on 4 March 2010 (when the appellant would have been some
24 years old) for theft (committed on 16 January 2010, some
thirty-three (33) months after the previous conviction but still
during the last-mentioned period of suspension) for which he was
sentenced to six (6) months imprisonment.
The
second and third convictions were for crimes committed during the
period that the appellant ostensibly should have been in prison
but
this discrepancy was not picked up by the prosecutor or the trial
court and is not explained on the appeal record before us.
During
argument the matter was also not clarified. What was picked up, was
the disturbing fact that the appellant started to us
aliases.
[7.]
From the list of previous convictions as admitted by the appellant,
it appears that on more than one occasion he was given
a sentence
that was suspended either in whole or in part, and that the
conditions of suspension were breached on various occasions.
Despite
this there is no indication on the record that any of those suspended
sentences were ever put into operation. Neither Adv
Vorster for the
respondent nor Adv Mashuga for the appellant could assist us in this
regard.
[8.]
Returning now to the proceedings before the trial court, it appears
from the record that the appellant was then advised by
his legal
representative not to proceed immediately; presumably the idea was to
obtain a probation report or other evidence
in
mitigation for the purposes of sentencing which the legal
representative thought was advisable given the previous convictions.
The appellant eiected and in fact instructed his legal representative
to proceed immediateiy with sentencing and a number of mitigating
factors were then submitted from the bar. Those mitigating factors
included the following: that the appellant was a single male
of 24
years with a son aged 1 year, that he was unemployed and that his
family was prepared to assist him with an amount of R 2,000.00
(two
thousand rand) to pay a fine.
[9.]
Adv Mashuga argued that the trial court should nevertheless have
insisted on a pre-sentencing report because the lack of information
before the trial court was such that he could not impose a proper
sentence. In our view there was nothing irregular in this regard.
The
appellant had legal representation and he (the appellant), despite
advice to the contrary, made a deliberate and clearly informed
choice
to proceed without one.
[10.]
Argument on sentence by the legal representative of the appellant
followed, concluded with some questions by the trial court.
The
prosecutor was not given an opportunity to make the views of the
State on the mitigating factors, sentence in general or imprisonment
in particular known.
[11.]
In the judgement on sentencing the trial court commenced with the
seriousness of the offence and made two points at the outset.
The
first point was that the value of the two phones was R 6,000.00 in
total. We have already dealt with this aspect and repeat
that the
more cautious approach would have been to make sure that the value
was
admitted and what value was admitted. The second point was that theft
in the district of Brakpan was so prevalent that each
and every day a
person is convicted by the trial court for this type of offence.
Whilst we have no issue with the tria! court taking
judicial notice
of the prevalence of crime, we are concerned with the manner in which
this was done. The prosecutor did not address
the tria! court on
sentence and neither did the trial court mention this consideration
during its interaction with the legal representative
of the
appellant. Adv Mashuga for the appellant did not address us on this
point. Adv Vorster for the respondent argued that, although
it was
factually so that in this particular case the appellant was not given
an opportunity to address this factor, he has been
in and out of
courts so many times that he should have known about it. We cannot
accept that argument. It assumes knowledge and
experience on the part
of the appellants and takes us into the realm of speculation. In the
result the appellant did not have an
opportunity to address this
factor, which was taken into consideration by the trial court. In our
view that was irregular.
[12.]
The basic approach in every appeal against sentence was stated in S v
Giannoulis
1975 (4) SA 867
(A) to be that the court hearing the
appeal (a) should be guided by the principle that sentence is
pre-eminently a matter for the
discretion of the trial court; and (b)
should be careful not to erode such discretion: hence the further
principle that the sentence
should only be altered if the discretion
has not been judicially and properly exercised. The test under (b) is
whether the sentence
is vitiated by irregularity or misdirection or
is disturbingly inappropriate. See also R v Mapumulo and Others
1920
AD 56
at 57; R v Freedman
1921 AD 603
at 604; S v Narker and Another
1975 (1) SA 583
(AD) at 585C; S v Rabie
1975 (4) SA 855
(AD) 857D-F.
Many other judgements of the High Court and the Supreme Court of
Appeal endorse these venerable principles and they
were also endorsed
by the Constitutional Court: see S v Shaik
[2007] ZACC 19
;
2008 (2) SA 208
(CC) para
72 and S v Shaik
[2008] ZACC 7
;
2008 (5) SA 354
(CC) para 66.
[13.]
We emphasise that the presence of a mere irregularity (or
misdirection) in the sentencing procedure is not a licence to
interfere
on appeal. The irregularity is such that the sentence must
be
11
vitiated
’
by irregularity, in other words it must spoil or impair the quality
or efficiency of the sentencing procedure or destroy
or impair the
legal validity thereof. One way of testing this is to think away the
irregularity and ask whether the outcome would
have been different.
Another way is to ask what prejudice the appellant actually suffered.
In our view and even if the prevaience
of theft in Brakpan is left
out of consideration, the outcome would still be the same so that, in
this instance, this particular
irregularity does not make a
difference and thus did not vitiate the sentence procedure. We can
also not conceive of any prejudice
for the appellant and none was
suggested in argument to us. Also on this basis there was no
vitiating irregularity in this regard.
[14.]
One of the grounds of appeal is that the trial court overemphasised
the previous convictions. We do not agree. The long list
of previous
convictions, and similar ones to boot, is obviously a cause for
concern. What is also a concern is that a later conviction
was in
some instances for a crime that was committed within a matter of
months after the previous conviction or sentence. The inclination
of
the appellant to start using aliases exacerbates the seriousness of
his record of previous convictions.
[15.]
As was pointed out in S
v Stenge
2008 (2) SACR 27
(C), force of habit is not the only reasonable
inference that can be drawn from a long list of previous convictions
because the
socio-economic conditions of the offender and other
relevant factors may well be the motivating cause for the commission
of these
offences. We must also not lose sight of the actual crime
for which the appellant was convicted; furthermore the sort of social
problem represented by recidivism and a recurrence in regard to the
commission of the same offence by an offender living under
the same
socio-economic conditions as the appellant cannot be cured by simply
imposing heavier and heavier sentences: see S
v
May
1999 (1) SACR, 565
(C), referred to
in S u
Matlotlo
2004 (2) SACR 549
(T). These are laudable observations. The problem
is that the appellant elected not to obtain a pre-sentencing report
and thus
not only does the motivating cause for the commission of
these offences remain unexplained but we are kept in the dark as to
what
the socio-economic conditions of the appellant really are.
[16.]
The basic proposition for the appellant boils down to a submission
that the sentence of three (3) years imprisonment, imposed
on the
appellant, was informed solely if not overwhelmingly by his list of
previous convictions and, inversely, without any consideration
of the
personal circumstances and interests of the appellant. During
argument Adv Mashuga conceded that the trial court could have
referred this matter to the regional courtfor punishment. If that had
happened, the changes thatthe appellant would have been on
the
receiving end of a stiffer sentence would have been good. The trial
court however, expressly stating that this was from considerations
of
leniency, decided not to do such a referral but to deal with the
matter itself. The personal circumstances and interests of
the
appellant were thus taken into consideration, as was submitted by Adv
Vorster.
[17.]
The appellant committed an opportunistic crime without any
premeditation or planning, which in a sense is the more difficult
crime to prevent in our society. Furthermore he committed a crime of
dishonesty and this theft was one of valuable property. He
is not a
first offender but he is still a young man.
[18.]
The trial court dismissed submissions on poverty as a contributing
cause for, or explaining, the criminal conduct of the appellant
on
the basis of the neatly dressed appearance of the appellant in court
and the fact, of which the trial court also took judicial
notice
without alerting the appellant thereto, that the appellant would have
had money to pay for transport in order to travel
the approximately
50 km from his residence in Lenasia to Brakpan where he was selling
fruit. There is no denial that the appellant
had some level of income
but that does not mean that he is not living in poverty or that he is
able to do anything but barely survive.
We repeat, however, what we
have said in paragraph 15 above.
[19.]
The trial court stated that the plea of guilty as well as the ready
admission of the incriminating facts were signs of remorse:
the
reality was that the appellant was caught practically red-handed
after he committed an opportunistic crime and simply had no
other
choice.
[20.]
Considering the matter within the parameters of the well-known Triad
of Zinn (derived from S
vZinn
1969 (2) SA 537
(A), applied in numerous cases thereafter and
also
endorsed by the Constitutional Court in S
v
M (Centre for Child Law as Amicus Curiae)
[2007] ZACC 18
;
2008 (3) SA 232
(CC)), calling upon a sentencing court to consider
the crime, the offender and the interests of society, we are of the
view that
the proper sentence is indeed one of three (3) years
imprisonment.
[21.]
In the final analysis the test is whether the sentence is vitiated by
irregularity or misdirection or is disturbingly inappropriate.
We
find no irregularity or misdirection or inappropriateness of such a
degree although we must add that the judgement of the trial
court is,
in certain minor respects, not free from criticism.
[22.]
There was no direct appeal against the second leg of the sentence,
namely the order in terms of
section 103
of the
Firearms Control Act
60 of 2000
declaring the accused unfit to possess a firearm. This
section caters for two scenarios. On the one scenario the default
position
is that where a person is convicted of one of a
circumscribed list of crimes or offences, he or she becomes unfit to
possess a
firearm unless a court determines otherwise - the focus is
on grounds to determine whether, despite a conviction of one of those
crimes or offences, the convicted person is nevertheless fit to
possess a firearm. On the other scenario a court is charged with
the
duty to enquire and determine whether a person, convicted of a crime
or offence referred to in Schedule 2 to that Act and which
is not a
crime or offence as contemplated in the said circumscribed list, is
unfit to possess a firearm - here the focus is on
grounds to
determine whether, in view of a conviction of a crime or offence
contained in a different list, the convicted person
is unfit to
possess a firearm.
[23.]
Under the first scenario, section 103(1 )(g) of the
Firearms Control
Act 60 of 2000
provides as follows:
"(1)
Unless the court determines otherwise, a person becomes unfit to
possess a firearm if convicted of...
(g)
any offence involving violence, sexual abuse or dishonesty, for which
the accused is sentenced to a period of imprisonment without
the
option of a fine
;...”
Common
law theft is such a crime of dishonesty for which, in the present
instance, the sentence for a period of three (3) years
imprisonment
is such a sentence without the option of a fine. There was also no
such “
otherwise
”
determination by the court as is contemplated by this subsection. Nor
was it argued before us that there should have been
such a
determination and on the facts appearing from the record there is
also no legal basis for it. It follows that the second
leg of the
sentence is above reproach and cannot be interfered with on appeal.
[24.]
In the result I propose that the following order be made: the appeal
is dismissed.
OOSTHUIZEN
AJ
19
November 2012
[25.]
I concur in the judgement of my brother Oosthuizen AJ. The appeal is
dismissed.
RAULINGA
J
19
November 2012