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[2011] ZANCHC 19
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S v Blom (CA&R 28/2011) [2011] ZANCHC 19 (26 August 2011)
Reportable: Yes / No
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Magistrates:
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IN THE HIGH COURT OF
SOUTH AFRICA
NORTHERN CAPE HIGH
COURT, KIMBERLEY
CASE NO: CA&R
28/2011
HEARD: 22/08/2011
DELIVERED: 26/08/2011
In the matter
between:
COLLIN BLOM
…........................................................................
APPELLANT
and
THE STATE
….........................................................................
RESPONDENT
CORAM: LACOCK, J et
HUGHES-MADONDO, AJ
JUDGEMENT
HUGHES-MADONDO, AJ
The appellant, Collin
Blom, was charged with malicious injury to property. On 9 February
2011 he was convicted, in the District
court of Kimberley, and was
subsequently sentenced to three (3) years imprisonment. Leave to
appeal was granted by the court
below against sentence.
On 26 March 2011 the
appellant caused damage to the windows, toilet bowl, sink and zinc
sheets of the dwelling belonging to Emmanuael
Onyewuchi. The total
amount of the damages was R3 960-00. The appellant was
seventeen (17) years of age at the time that
the offence was
committed.
At the outset I should
explain that both parties were
ad idem
that the sentence
imposed by the Magistrate of three (3) years imprisonment was
shockingly inappropriate.
Both parties argued
that the Magistrate overemphasised the seriousness of the offence
and the interest of the community over that
of the personal
circumstances of the Appellant.
At the time that the
offence was committed the appellant was a minor. He is single with
no children and lived with his grandparents
and uncle. He attended
school until standard seven and thereafter he was employed
temporarily earning a salary of R840-00 per
month. He is a first
offender and had spent eight (8) months in custody awaiting trial.
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 the 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 a misdirection
is
usually and conveniently termed one that vitiates the Court’s
decision on sentence”.
In the court below,
Ms. Deetlefs on behalf of the state requested that the appellant be
given a suspended sentence of five years,
coupled with the appellant
being declared unfit to possess a firearm. Mr. Mabaso for the
appellant concurred that a “
stiff suspended sentence”
be imposed together with the declaration that the appellant was
unfit to possess a firearm.
Ponnan AJA in
BARANT
v S
[2005] 2 ALL SA 1
(SCA)
at
paragraph 18
held that the
principle that detention of juveniles is a matter of last (and for
the shortest appropriate period of time) is the
leitimotif
of
juvenile justice reform.
In
S v SILIMELA
1999
(20) SACR 7
CPD
at
paragraph (g)
Van Heerden AJ held:
“
Although
it appears from the case law that a first offender cannot expect as a
matter of right to receive a sentence that does not
involve direct
imprisonment, it is nevertheless a salutary and important principle
of punishment that, wherever possible, a first
offender should not be
sent to prison.”
It is so that the
appellant was convicted of a serious offence in that the damages he
caused to the dwelling resulted in the business
of the complainant
being affected, that is, the tavern that he operated from this
dwelling. However, having regard to the age
and the personal
circumstances of the appellant it is my view that direct
imprisonment should have been avoided.
Be that as it may, the
appellant has already served six (6) months and seventeen (17) days
in custody after being convicted. He
also spent a period of eight
(8) months in awaiting trial before he was released on bail prior to
his conviction. Taking into
account the time spent in awaiting trial
and the period spent after his conviction cumulatively the appellant
has been incarcerated
for a period of fourteen (14) months and
seventeen days.
At this stage the
appropriate step would be to antedate the sentence that I consider
would have been the appropriate sentence
under the circumstances. In
doing so I take into account the period he has already served
imposed by the court below.
In the circumstances
the following order is made:
The appeal against
sentence is upheld.
The sentence of
three (3) years imprisonment is set aside and is replaced with a
sentence of six (6) months and seventeen (17)
days.
This sentence is
antedated to 9 February 2011.
___________________________________
W HUGHES-MADONDO
ACTING JUDGE
NORTHERN CAPE
DIVISION
osts of such procee
I concur
_________________________________
H LACOCK
JUDGE
NORTHERN CAPE
DIVISION