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[2009] ZAGPPHC 297
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S v Maluleke (21/2008, 505) [2009] ZAGPPHC 297 (8 September 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL
PROVINCIAL DIVISION)
Review
case number: 21/2008
High
court reference number: 505
Date:
08 September 2009
In
the matter between:
THE
STATE And
NOZA MORRIS MALULEKE
JUDGMENT
MOLOPA
J
The
accused was convicted in the Magistrate’s court. Giyane on
House Breaking with intent to steal and theft. He was sentenced
on 22
August 2008 to three (3) years imprisonment.
The
accused was unrepresented throughout the proceedings. On his first
appearance the accused indicated that he wanted to plead
guilty to
the charge and to conduct his own defence. After conviction and
sentence the record was transmitted to this court on
review.
The
first thing that struck me when I read the record was the severity of
the sentence imposed by the magistrate. Pursuant to my
prima fade
view I addressed a query to the
magistrate pertaining to the severity of the sentence, and
sought reasons for the imposition
of a 3 (three) year term of
imprisonment.
The
magistrate duly provided his reasons as follows:
"The
dictum
in
the leading case of RAB1E 1975 (4)
5/1
855 (A) at
861
(d) -862
goes:
'punishment
must fit the criminal as well as the crime, he fair to society, and
he blended with the measure of mercy according to
the circumstances
”
House
breaking with intent to commit an offence as well as theft are both
serious crimes. In certain jurisdictions, these crimes
are designated
for trial (by the DPP of such divisions) in the regional court
for an obvious reason: “the need to impose
far more severe
sentences beyond the district court jurisdiction
"
The
crimes of house breaking with intent to commit an offence as well as
theft are also very prevalent in our society. I: is therefore,
high
time that the courts make their attitude to offenders and potential
offenders alike
These
crimes evoke a lot of indignation from the victims as well as
ordinary members of society alike, and if appropriate measures
are
not taken, then there is a real prospect in instances such as these,
which may contribute towards a build
-
up of the erosion of society's confidence in the administration of
justice.
In
the wake of endemic proportions of the spate of burglaries, courts
can no longer afford to sit idle and be seen merely to be
paying lip
services, or rather be seen to be engaged in on exercise of
convenience, dusting under the carpet, matter that in the
eyes of the
community amount to outrageous and serious transgress ions
Already
in our country, research continues to indicate that society’s
confidence in public institutions, including courts
is diminishing.
Incident (albeit sporadic/ of vigilantism including setting up of
(informal) kangaroo courts are gaining ground.
Formal institutions
such as courts are being labelled lame duck and toothless creatures
which are unable to offer
solutions
to victims of crimes.
In
casu, although accused admit to having been under the influence of
intoxicating substances when he committed the crime, the possibility
of the crime having been premeditated cannot be ruled out. Accused
clearly knows and understand his victim's circumstances. Accused
seem
to have some privilege information surrounding both the set-up as
well as the where about of the inmates in this homestead
that he
targeted for burglary. Either owing to some prior or current
relationship with some inmates at complainant's residence,
accused
became privy to vital information that probably enabled him to commit
the crime instead.. "
The
office of die National Prosecuting office was also requested to
comment, after having been provided with the record of proceedings
as
well as the magistrate's reasons.
Advocate
C A Pillay with whom S Lakhi - Hatia agrees, having set out both
mitigation and aggravating factor, is also of the view
that the
sentence imposed is se\ere and suggests that part of the sentence be
suspended for a specified period on certain conditions.
The
following were as correctly set out by Advocate C A Pillay of the
NDPP. the mitigating factors:
”
The
accused pleaded guilty to the charge against him;
-
The accused is a first time
offender;
-
The accused is unemployed;
-
The accused is unmarried with one
child;
-
The accused has shown some
remorse by handing over the stolen properties when asked to and by
apologizing for his actions during
the court proceedings;
-
The accused acted in a state of
desperation due to his financial status;
-
The accused
was intoxicated at the time of
commission of the offence. "
On
the other hand, the following were as set out by Advocate Pillay, the
aggravating factors:
-
The accused abused and exploited
the trust bestowed upon him since he knew the layout of the house
prior to the incident which he
relied on for the commission of this
offence.
-
The accused only confessed to the
crime after he was pointed out by the sangoma as the perpetrator;
-
The accused intended to sell the stolen
items for his monetary gain.
”
On
all the circumstances in this case it is clear that the trial conn
over emphasised the seriousness of the offence and the interests
of
the community against the personal circumstances of the accused, and
also overlooked the fact that the items stolen by the accused
were
actually returned to the complainant and the accused, who had pleaded
guilty, without wasting the court’s time, clearly
showed
remorse.
The
magistrate also failed to take into account that the accused said
that he was intoxicated, which aspect the magistrate did not
even try
to establish to what extent he may have been intoxicated.
I
am of the view that the weight of the mitigating factors exceeded the
weight of the aggravating factors. The circumstances of
the case
called for a lighter sentence which would have been appropriate in
the present case than the one imposed.
It
is indeed misdirection on the part of a trial court to over -
emphasise one or more of the three elements usually taken into
account when assessing an appropriate sentence.
A
judicial officer is expected to balance all three (3) elements
including the aggravating and mitigating factors when assessing
sentence in order to arrive at a judicially balance sentence. As
already pointed out there were several strong mitigating factors
in
favour of the accused which the presiding officer ought to have taken
into account in assessing the sentence.
Advocate
C A Pillav, as already stated concedes that the sentence of three (3)
years direct imprisonment imposed on the accused
is excessive sever,
and suggests that the sentence be altered to three years imprisonment
one year of which is suspended for a
period of five years on
condition that the accused is not found guilty of Housebreaking with
intent to steal and theft committed
within the period of suspension.
I
am of the view that the sentence as suggested by Advocate Pillay of
the NDPP is still excessive in the circumstances.
Having
considered the matter and taking into account the input b\ the state
Advocate, I am of the view that the sentence herein
cannot be allowed
to stand.
In
the result 1 make the following order:
1)
The conviction of the accused is
confirmed:
2)
1'he sentence of three (3) years
imprisonment is hereby set aside and replaced with the following:
-
In terms of section276 (1) (i) of Act 51
of 1977 as amended, the accused is sentenced to two (2) years
imprisonment half of which
is suspended for five (5) years on
condition the accused is not again convicted of housebreaking with
intent to steal and theft
committed during the period of suspension.
*
The sentence is antedated to 22 August 2008.
3)
The accused must be released from prison with immediate effect, and
the registrar is directed to immediately convey this order
to the
prison authorities where the accused is imprisoned.
L
M MOLOPA JUDGE OF THE HIGH COURT
I
agree
T
J RAULINGA JUDGE OF THE HIGH COURT
It
is so ordered