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[2010] ZAFSHC 135
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S v Motaung (A275/2009) [2010] ZAFSHC 135 (15 October 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No.: A275/2009
In the appeal between:-
MERIAH MOTSIHIDISI
MOTAUNG
…......................................
Appellant
and
THE STATE
….......................................................................
Respondent
_____________________________________________________
HEARD ON:
11 OCTOBER 2010
_____________________________________________________
CORAM:
MOCUMIE, J et MATLAPENG, AJ
_____________________________________________________
JUDGMENT BY:
MATLAPENG, AJ
_____________________________________________________
DELIVERED ON:
15 OCTOBER 2010
_____________________________________________________
INTRODUCTION
[1] The appellant was
charged with theft in the Magistrates’ Court of Welkom. At the
conclusion of the trial she was found
guilty as charged and sentenced
to twelve months imprisonment of which six months were suspended for
a period of five years on
certain conditions. She has lodged an
appeal to this court against sentence only.
FACTUAL BACKGROUND
[2] The appellant was
accused no. 1 and had a co-accused. For convenience I will use the
same appellation as in the lower court.
Accused no. 1 was a cashier
at Shoprite. On the day in question, the state witness, a security
officer saw her helping accused
no. 2 at the tills.
[3] Accused no. 1 did not
appear settled as she kept looking around. It later became apparent
to the security officer why the accused
was unsettled. The reason
therefore is that accused no. 1 was not scanning all the items in
accused no. 2’s grocery trolley.
[4] After accused no. 2
had made payment to accused no. 1, the security officer approached
no. 2 and requested to check her purchases
against the till slips
that she received from accused no. 1. He found nineteen items that
did not appear on the till slip. On being
confronted, accused no. 2
could not produce proof of payment of the items and stated that an
unnamed person had left with the till
slip. The proof of purchase was
never produced.
[5] Accused no. 1 stated
that as she was busy on the particular day with many customers, she
did not realise that the items in question
were not scanned. The
court disbelieved the two accused and they were convicted of theft.
THE ISSUE
[6] The issue to be
decided in this appeal is whether the sentence imposed by the court
a
quo
was appropriate.
SUBMISSION BY THE
PARTIES
[7] On behalf of accused
no. 1 Mr. Tshabalala submitted that the sentence imposed was
inordinately harsh especially taking into
account that the sentence
imposed on her is disparate from the one imposed on accused no. 2.
The state conceded that this court
should interfere with the sentence
imposed by the court a quo as the trial Magistrate did not exercise
his discretion properly,
the trial court failed to consider all
factors taken into account for punishment in a balanced manner and it
underemphasised accused’s
favourable personal circumstances.
THE LEGAL POSITION
[8] Sentencing is
pre-eminently within the discretion of the trial Court and a Court of
appeal can only interfere where the trial
Court has failed to
exercise such discretion properly. The Court of appeal is limited to
those instances where there is an irregularity
or a misdirection or
where there is a striking disparity between the sentenced imposed by
the trial court and the one the appeal
court would have imposed. See
S v M
1982 (1) SA 589
(A) and also
S v MATLALA
2003 (1) SACR 80
(SCA). In
S v FAZZIE AND OTHERS
1964
(4) SA 673
(A) at 684B-C the following is stated:
“
Where,
however, the dictates of justice are such as clearly to make it
appear to this Court that the trial Court ought to have had
regard to
certain factors and that it failed to do so, or that it ought to have
assessed the value of these factors differently
from what it did,
then such action by the trial Court will be regarded as a
misdirection on its part entitling this Court to consider
the
sentence afresh.”
APPLICATION OF THE
LAW TO THE FACTS
[9] Accused no. 2 was
sentenced to pay a fine of one thousand five hundred rand or five
months imprisonment in lieu of the fine.
She was sentenced to a
further five months imprisonment which was wholly suspended for a
period of five years on certain conditions.
The fine imposed was
deferred and accused no. 2 was ordered to pay it in three monthly
instalments.
[10]
The major complaint levelled against the sentence imposed by the
court
a quo
on
accused no. 1 is that the learned Magistrate overemphasised the
interests of the society over those of accused no. 1 and this
led to
the harsh sentence that he imposed. Whilst the interests of the
community have to be taken into account, care should be
taken not to
overemphasise those interests at the expense of those of the
offender. A right balance between the triad of punishment
should be
struck. See
S v RABIE
1975 (4) SA 855
(A).
[11] Considering that
accused no. 1 has to serve six months direct imprisonment, it becomes
clear that there is a shocking disparity
not only between the
sentence which this court would have imposed on accused no. 1 but
also on the sentence imposed on two people
who were acting in
concert. The symbiosis between the two accused made it possible for
the offence to take place. Their moral blameworthiness
is equal.
Whilst punishment has to be individualised, it does happen that on
certain occasion the interest of justice demand that
people charged
together with one offence should be given similar punishment.
[12] As a result, I am of
the view that failure by the court to give due weight to the personal
circumstances of the accused is
a misdirection which entitles this
court to interfere in the sentence imposed and to consider the
sentence afresh.
[13] In consequence of my
conclusions, what needs to be determined is an appropriate sentence
taking both mitigating and aggravating
factors into account. The
accused’s personal circumstances are as follows: She is a first
offender, is twenty five years
of age, has a minor child whom she
used to support. The complainant did not suffer any loss as all the
goods were retrieved. Accused
no. 1 lost her job as a result of this
offence and is unemployed. In aggravation the following appear. The
offence is a serious
one and is very rife in this court’s
jurisdiction. The accused breached the trust placed on her by her
employer and did not
show any remorse.
[14] It need not be
emphasised that the offence the accused was convicted of is serious.
It is also correct that she was in a position
of trust and she
breached such a relationship by stealing from her employer. However,
any sentence imposed on the accused should
be efficacious in that it
has build and reform her and not break her. In my view, direct
imprisonment is not a suitable sentence
taking into account all the
mitigation and aggravating factors into account. Although the accused
is currently unemployed there
is no indication that she cannot pay a
fine. In fact she is out on bail and the indications are that with
support from her family
she will be in a position to pay a fine.
Taking into account the mitigating and aggravating factors, I am of
the view that a fine
coupled with a term of imprisonment and
additional term of imprisonment to be suspended will be appropriate.
[15] In the circumstances
I make the following order:
Order
1. The sentence imposed
by the magistrate is set aside and replaced with the following:
“
Accused
no. 1 is sentenced to a fine of R1 500.00 (one thousand five hundred
rand) alternatively 5 (five) months imprisonment in
lieu of the fine.
Accused is also sentenced to a further 5 (five) months imprisonment
which is wholly suspended for a period of
five years on condition
that the accused is not found guilty of theft or attempted theft
committed during the period of suspension.”
2. The fine imposed is
deferred and to be paid as follows:
2.1 R1000.00 (one
thousand rand) on 15 October 2010 before 15h30.
2.2 R500.00 (five hundred
rand) on or before 3 December 2010.
2.3 All payments to be
made at Welkom Magistrates’ Court.
___________________
D. I. MATLAPENG, AJ
I
agree.
________________
B. C. MOCUMIE, J
On behalf of appellant:
Mr. L. M. Tshabalala
Instructed by:
Bloemfontein Justice
Centre
BLOEMFONTEIN
On behalf of respondent:
Adv. R. Hoffman
Instructed by:
Director Public
Prosecutions
BLOEMFONTEIN
/wm