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[2009] ZAGPPHC 240
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S v Nkuna (A276/09) [2009] ZAGPPHC 240 (31 March 2009)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL
PROVINCIAL DIVISION)
Review
Case No B930/08
High
Court Ref No 263
Magistrate
Serial No 2/09
CASE
NO: A276/09
DATE:31/03/2009
The
State
v
Linah
Annah Nkuna
JUDGEMENT
SERITI
J
1.
This matter came before me on automatic review pursuant to the
provisions of section 302 of the Criminal Procedure Act 51 of
1 977.
2.
The accused was arraigned in the magistrate’s court, Lydenburg,
on a charge of theft. She appeared unrepresented. She pleaded
guilty
to the charge and the magistrate proceeded in terms of section 112
(1) (b) of Act 51 of 1977. After questioning the accused
the
magistrate was satisfied that the accused is guilty of the offence of
theft as charged.
3.
The accused was convicted on the 6 February 2009. She was sentenced
on the same day to 36 (thirty six) months imprisonment and
in terms
of section
103 Act 60
of 2000 no order was made.
4.
No query was sent to the magistrate. The matter was referred to the
office of the Director of Public Prosecutions for their comment.
Advocate B E. Maoke Commented that the magistrate correctly convicted
the accused. He also indicated that the accused was given
an
opportunity to address the court from the dock and although she did
not tender an argument this irregularity is not one that
vitiates
proceedings. He: is of the view that because the stolen items were
recovered, the sentence of 36 (thirty six) months imprisonment
is
shockingly inappropriate and that there is justification to interfere
with the sentence imposed by the trial court. He indicated
further
that the matter should not be referred back to the magistrate for
reconsideration of sentence as that would be prejudicial
to the
accused. He further commented that accused stole Nestle Powder Milk
to the value of R89-95 that shows accused stole primarily
to fulfil a
need, namely to obtain food and he referred to the following cases
(i)
S v Baartman
1997 (1) SACR 304
at 305 e —f,
(ii)
S v Makgaba
1990 (1) SACR 224
(T),
(iii)
S v Witbooi
1990 (1) SACR 461
(K)
(iv)
S v Beja
2003 (1) SACR 168
(SE)
(v)
S v Stenge
2008 (2) SACR 27
.©
5.
In the present case the accused stole Nan Nestle Powder Milk valued
at R89- 95. Accused pleaded guilty to the charge and that
alone shows
that she was remorseful of what she did.
6.
I agree with Advocate Maoke that accused stole to fulfil a need,
namely to obtain food. This: is obvious from her personal
circumstances.
7.
The record shows that she has 16 (sixteen) previous convictions of
theft committed between 1991 and 2006 of which 6 of them are
more
than 10 (ten) years old. In 1992 she committed in the same year two
more offences of theft even though she was given a suspended
sentence
with certain conditions. She received different types of sentences
ranging from a sentence with an option of a fine, wholly
suspended
sentence, imprisonment without an option of a fine, sentence with
alternative of imprisonment portion of the sentence
suspended on
certain conditions, sentence in terms of
section 276
(1) (h) of the
Criminal Procedure Act 51 of 1977
and community service. On 29 July
1992 she was sentenced to 8 (eight) months imprisonment for an
offence of theft committed on
the 09 July 1992 and 12 (twelve) months
imprisonment for the same offence committed on the 20 July 1992.
8.
Between 1992 and 2000 she did not commit any offences of theft.
However she started her recidivist career of crime in 2001 when
she
was again convicted of theft followed by 12 (twelve) other
convictions for the same offence. Her last conviction was in 2006.
9.
In mitigation of sentence she advised the court that she has 5 (five)
children aged 20 (twenty), 15 (fifteen), 14 (fourteen),
10 (ten), 9
(nine) and 1 (one) grandchild age unknown. She is unmarried and
worked for a contractor at a school in Pienaar as a
labourer and she
earned R800-00 per month. She gets a child support grant for the last
three of her kids. She lives with her kids
and the father of the last
three kids. It is not noted on the record whether the father of her
last three children is working or
not. She has no formal training and
she attended school up to standard 4 (four).
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 shockingly inappropriate.
11.
The personal circumstances of the accused when considered with the
offence that she committed, suggest that the sentence imposed
by the
magistrate is shockingly inappropriate. The accused should not be
sentenced for her previous convictions but for the offence
charged.
12.
In S v BAARTMAN
1997 (11 SACR 304
(ECD1 Jones J held;
"In
the case such as this it is necessary to be aware of 3
considerations:
a.
The accused should he sentenced for the offence charged and not for
his previous record;
b.
The public interest is harmed rather than served by sentences that
are out of all proportion to the gravity of the offence; and
c.
While it may be justifiable up to a point to impose escalating
sentences on offenders who keep on repeating the same offence,
there
are boundaries to the extent to which sentences for petty crimes can
be increased. ”
13.
The magistrate over emphasised the seriousness of the offence and the
previous convictions without considering the accused personal
circumstances. This court is therefore is entitled to interfere with
the sentence imposed by the trial court.
14.
Advocate Moake recommended that the sentence be altered to something
in the region of 2 (two) years imprisonment and half of
the sentence
be suspended for a period unspecified on suitable conditions. In the
circumstances
15.
I am of the view that a sentence of 12 (twelve) months imprisonment
half of which is suspended for 3 (three) years on condition
that
accused is not convicted of theft or attempted theft committed during
the period of suspension, is appropriate in this case.
16.
I therefore make the following order;
16.1.
Conviction of accused is confirmed,
16.2.
Sentenced imposed on the accused is set aside and
i^-s«festTttrted-wkh the following^
16.3.
12 (twelve) months imprisonment half of which is suspended for 3
(three) years on condition that accused is not convicted
of theft or
attempted theft committed during the period of suspension.
16.4.
The sentence is antedated to: the date on which the accused was
sentenced by the trial court, namely 6 February 2009.
W.
L. SERITI
JUDGE
OF THE HIGH COURT.
I
agree.
F.M.
LEGODI
JUDGE
OF THE HIGH COURT