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[2009] ZAGPPHC 70
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S v Mahlangu (A185/09) [2009] ZAGPPHC 70 (6 March 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL.
PROVINCIAL DIVISION)
Case
No : 399/08
High
Court Ref No : 2313
Review
Case No : MR 5/09
THE
STATE V EMILY MAHLANGU
REVIEW
JUDGEMENT
1. The
accused, a 52 (fifty two) years old female person was arraigned in
the magistrate's court, Carolina, on one count of theft.
She pleaded
guilty to the charge and a statement in terms of section 112 (2) of
the Criminal Procedure Act 5
1
of 1077 was read into the record and accepted by the magistrate as
exhibit "A".
2. On
the 06 November 2008 was convicted. She was then sentence' to 3
(three) years imprisonment on the 01 December 200S.
3. Certain
queries were raised with the magistrate regarding sentence. He was
asked to comment in particular, on whether in passing
sentence he
considered other sentencing options and whether the sentence of 3
(three) years imprisonment imposed on the accused
was not too severe.
4. After
the magistrate responded, the matter was referred to the Director of
Public Prosecutions (DPP) for their comment. The
Deputy Director of
Public Prosecutions. Advocate H.M. Meintjes commented that the
accused should not be sentenced for his previous
records but for the
offence charged. He referred to the following decisions:
a) S
v Baartman
1997 (1) SACR 304
(ECD),
b) S
v Mzazi
2006 (1) SACR 100
(ECD),
c) S
v Beja
2003 (1) SACR 168
(ECD) and
(d)
S v Matlotlo
2004 (2) SACR 549
(T).
5. In
S v Baartman supra Jones J held;
a)
"In the case such
as
this
it
is
necessary
to be aware of 3 considerations:
b)
The accused should be sentenced for the offence charged and not for
his
previous
record;
The
public interest is harm"' rather than served by sentences that
are out of all proportion to the gravity of the offence:
and
(c)
While it way
be
justifiable
up to a point
to
impose
escalating sentences on offenders who keep on repeating the same
offence, there are boundaries to die extent to which sentences
for
petty crimes can
be
increased.
"
6. In
the present ease the accused stole 5 (five) litres of Flukazole, a
cattle dip valued at R2100 - 00 (two thousand one hundred
rand). I
agree with Advocate Meinjes that this amount cannot be described as
petty.
7. The
accused pleaded guilty to the charge and described to court how she
committed the offence. That, at least showed a sign
of remorse on the
part of the accused.
8. The
record shows that she bad a list of previous convictions of theft.
Between 1979 and 2006 she was convicted of theft on no
less than 9
(nine) occasions. In respect of most of these previous convictions,
she received the option of a fine as an alternative
to imprisonment.
She was sentenced to a direct term of imprisonment for theft
committed in 1993. In 1987 she received a term of
imprisonment, half
of which was suspended for 3 (three) years on condition that she was
not convicted of theft or attempted theft
committed during the period
of suspension. Between the last conviction of theft in 1987 and 1996
she did not clash with the law.
However she resumed her recidivist
career of crime in 1997 when sue was again convicted of theft
followed by about 4 (four) other
convictions for the same offence
.
He
r
last previous conviction was committed in 2006. Th
e
list
of previous 'convictions does show the factual details of each
conviction.
9.
In a litigation
of
sentence
she advised the
court
that she asked for leniency and forgiveness.
She
ha
d
5
children
to
Support
an
d
no parents. On the record it is not noted whether she was employed or
not
10. It
is trite that the question of sentence falls within the discretion of
the trial court and this court will only interfere
with the sentence
imposed by the trial court if the trial court failed to exercise its
discretion properly, misdirected itself
or if the sentence imposed is
harsh.
11. The
personal circumstances of the accused when considered with the nature
of the offence she committed, suggest that the sentence
imposed by
the trial court is too harsh. The magistrate over emphasised the
previous convictions of the accused at the expense
of her personal
circumstances. This court is therefore entitled to interfere with the
sentence imposed by the trial court.
12. Advocate
Meinjes of the office of the DPP recommended that the sentence of the
accused be replaced with a sentence of 3 (three)
years imprisonment
in terms of section 276(1) (i) of the Criminal Procedure Act and the
Commissioner be ordered to ensure that
the accused undergoes specific
therapeutic programmes addressing her tendency to commit crimes
involving dishonesty.
13. for
the reasons stated above, I am of the view that a sentence of 2 (two)
years imprisonment in terms of section 276(1) (i)
of the Criminal
Procedure Act is appropriate in this case.
14. I
therefore make the following order:
14.1. Conviction
of accused is confirmed.
14.2. Sentence
imposed on
me
accused
is set aside and is
substituted
with
the
following:
(i)
2
(two)
years improsenment
in
t"fi.
j
nfs*
:>io
;t
2750)
(!) of
he
Criminal Procedure Act 51 of 1977.
(ii)
The Commissioner of Correctional Services is ordered to ensure that
the accused undergoes specific therapeutic programmes which
will
address her tendency to commit crimes involving dishonesty.
JUDGE
OF THE HIGH COURT.
W.L.
SERITI.
I
agree.
JUDGE
OF THE HIGH COURT
M.F.
LEGODI.