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[2010] ZAFSHC 82
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Lentsoane v S [2010] ZAFSHC 82 (8 July 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Cas
e
No. : A45/2010
In
the
appeal between:-
PRINCE
LENTSOANE
Appellant
and
THE
STATE
Respondent
_____________________________________________________
CORAM:
MOCUMIE,
J.
et
MTHEMBU,
AJ
_____________________________________________________
HEARD
ON:
3
MAY 2010
_____________________________________________________
JUDGMENT
BY:
MTHEMBU,
AJ
_____________________________________________________
DELIVERED
ON:
8
JULY 2010
_____________________________________________________
JUDGMENT
_____________________________________________________
[1] The
appellant (accused 2) was found guilty of theft of a motor vehicle
(count 1) in the Kroonstad Regional Court on 14 October
2009 and
sentenced to six years imprisonment on the same day.
The appeal is against the sentence only with leave of the court a
quo.
[2] The
circumstances surrounding the commission of the offence are that on
18 January 2008 the vehicle was parked in the yard of
the
complainant. It was locked and the gate to the premises was also
locked. During the morning of 19 January 2008, the complainant
discovered that the lock of the gate was sawn off and the vehicle was
stolen. When the vehicle was recovered the keyhole of the
door, the
ignition and the keyhole to the petrol flap were damaged.
[3] The
appellant’s personal circumstances are the following:
3.1 He
was 27 years old when he committed this offence;
3.2 He
was unmarried;
3.3 He
had completed Grade 12 at school;
3
.4 He
was a first offender;
3
.5 He
was in custody awaiting trial for approximately four months before he
was released on bail;
[4] The
aggravating circumstances are the following:
4
.1 The
offence was well orchestrated bordering on being planned;
4
.2 The
appellant travelled from Soweto to steal in Kroonstad.
4.3 The
vehicle was stolen from behind a locked gate.
[5] Mr.
Van Rensburg, for the appellant, argued that the presiding officer
over-emphasised the seriousness of the offence and the
interest of
the community over the appellant’s personal circumstances. He
submitted that the sentence is unjust and disproportionate
to the
offence, the appellant and the interest of the community. He
submitted further that there was minimal damage to the vehicle
when
it was returned to the complainant. In his view a sentence of between
three and five years would be appropriate.
[6] The
approach to be adopted in an appeal against sentence is reflected in
the following passage in the judgment of Nicholas AJA
in
S
v SHAPIRO
1994 (1) SACR 112
(A) at 119 j – 120 C:
“
It may well
be that this Court would have imposed on the accused a heavier
sentence than that imposed by the trial Judge. But even
if that be
assumed to be the fact, that would not in itself justify interference
with the sentence. The principle is clear: it
is encapsulated in the
statement by Holmes JA in S v Rabie
1975 (4) SA 855
(A) at 857D-F:
'1. In every appeal against sentence,
whether imposed by a magistrate or a Judge, the Court hearing the
appeal -
(a) Should be
guided by the principle that punishment 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".
2. The test under
(b) is whether the sentence is vitiated by irregularity or
misdirection or is disturbingly inappropriate.' “
See
also
S
v SADLER
2000 (1) SACR 331
(SCA) at 334 d – g, where it was also been
held that:
“
The
overemphasis of the effect of the appellant’s crimes, and the
underestimation of the person of the appellant, constitutes
...
misdirection
and in result the sentence should be set aside.”
See
also
S
v ZINN
1969 (2) SA 537
(A) at 540 f – g. This must be equally true
when there is an over-emphasis of the personal circumstances of the
accused
and an underestimation of the gravity of the offence. See
S
v SALZWEDEL AND OTHERS
1999 (2) SACR 586
(SCA) at 591.
[7] In
R
v DHLUMAYO AND ANOTHER
1948 (2) 677 (A) at 706, the court
inter
alia
held that:
“
... in order to succeed, the
appellant has not to satisfy an appellate court that there has been
‘some miscarriage of justice
or violation of some principle of
law or procedure.”
In respect of an appeal
against sentence the appellant must show that the sentence is
disturbingly inappropriate or wholly inadequate
that the inference
should be drawn that the trial judge or magistrate had not properly
and judicially exercised his discretion.
[8] There
is no doubt that the offence committed by the appellant is one of the
most prevalent in the country. However, when a
court imposes a
sentence it must arrive at a balanced sentence taking into account
the seriousness of the offence, its prevalence,
the personal
circumstances of the appellant and the interest of the community.
[9] In
S
v SADLER
supra
the court had this to say at page 332 paragraphs b – d:
“
The court
considered firstly whether it was entitled to intervene in the
sentence. The Court remarked that the traditional formulation
of the
approach to appeals against sentence on the ground of excessive
severity or excessive leniency where there has been misdirection
on
the part of the court which imposed the sentence was easy enough to
state. It was less easy to apply. Account had to be taken
of the
admonition that the imposition of sentence was the prerogative of the
trial court and that the exercise of its discretion
in that regard
was not to be interfered with merely because an appellate court would
have imposed a heavier or lighter sentence.
At the same time it had
to be recognised that the admission could not be taken too literally
and required substantial qualification.
If it were taken too
literally, it would deprive an appeal against sentence of much of the
social utility it was intended to have.
So it is said that where
there exists a 'striking' or 'startling' or 'disturbing' disparity
between the trial court's sentence
and that which the appellate Court
would have imposed, interference was justified. In such situations
the trial court's discretion
was regarded as having been unreasonably
exercised.”
[1
0] The
offence committed by the appellant is one of the most prevalent in
the country. Mr Van Rensburg argued that a sentence of
between three
and five years would be appropriate. I disagree. There are
aggravating circumstances
in
casu
.
The appellant came to Kroonstad with the purpose to steal the
vehicle. The complainant did everything to protect his property
by
keeping the vehicle behind a locked gate, but that did not help.
[11] If
it is accepted that normally the courts impose sentences of between
three and five years imprisonment for vehicle theft,
then the
sentence of six years imprisonment imposed by the court
a
quo
is not a misdirection on its part, in view of the aggravating
circumstances.
[12] Regard
being had to all the above factors, I am of the view that there
exists no ‘striking’ disparity between the
court a
quo’s
sentence and that which this court would have imposed. Interference
with the sentence is not justified in the circumstances.
[13] The
imposed sentence is a proportionate and balanced sentence taking into
account the seriousness of the offence, the personal
circumstances of
the appellant and the interest of the community. The sentence would
serve to instil confidence in the community
that such behaviour
inconsistent with the ethos of our constitution will not be tolerated
in any civilised society: courts must
project this message clearly
and vigorously.
[14] In
the result I make the following order:
1. The
appeal against
the sentence imposed fails and is accordingly dismissed.
2. The sentence of 6
(six) years imprisonment imposed by the presiding officer on 14
October 2009 is confirmed.
___________
_____
J.B. MTHEMBU, AJ
I concur.
_______________
B.C. MOCUMIE, J
On
behalf
of appellant: Adv. T.B. van Rensburg
Instructed
by:
Legal
Aid Board
KROONSTAD
On
behalf of
respondent: Adv.
M.A. Lencoe
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
/
ar