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[2009] ZAGPPHC 174
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S v Chipape (D09/09) [2009] ZAGPPHC 174; 2010 (1) SACR 245 (GNP) (12 October 2009)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Magistrate
POLOKWANE
Case
No: D09/09
High
Court Ref No: 561
DATE:12/10/2009
THE
STATE V MANYEGA LUCAS CHIPAPE
REVIEW
JUDGMENT
LEGODI,
J
I
find it necessary to give a detailed judgment in the matter.
1.
When this matter was initially laid before me on automatic review, I
raised my concerns regarding sentence as follows:
"1.
Did the trial court consider correctional supervision as a
sentencing option, particularly regard been had to the fact
that the
accused is a first offender and relatively still young?
2.
If not, would this not have amounted to an irregularity?
3.
If it was considered, what militated against ensuring that necessary
evidence or information was laid before the court to enable
the court
to properly consider correctional supervision as a sentencing option?
4.
What militated against any form of sentence than direct
imprisonment?"
2.
To these queries, the trial court's response can be summed up as
follows:
2.1
That on the day of the accused's trial, there were three cases of
stock theft.
2.2
That the trial court did consider the correctional supervision
sentence or suspended sentence.
2.3
That due to the seriousness of the case, people in the community
might take the law into their own hands against the accused.
2.4
That in rural areas, black people rely on cattle farming. That you
can deprive a black person of anything, but not of his cattle
farming.
2.5
That due to the escalation of stock theft in the area, the community
is likely to take the law into their own hands to protect
their
cattle.
The
Director of Public Prosecutions in his comments, amongst others
expressed himself as follows:
"6.8.1
It goes without say that the crime of which the accused was convicted
is serious. The court a quo had a duty to impose
a sentence that
would reflect the community's indignation and repugnance felt towards
the crime."
3.
Further, having referred as to the case of S v Madihlaba
1990 1 SA 76
(T), where a member of a trial court was found guilty of assault with
intent to do grievous bodily harm, for having imposed a corporal
punishment on a female who was alleged to have been found guilty by
the trial court on a suspicion of stealing a sheep. She was
lashed
six times over her buttocks with a sjambok and sustained serious
injuries.
4.
On appeal in that case regarding the assault charge, it was found
that the member of the tribal court exceeded its powers and
actually
that he took the law into his hands.
5.
I think the Director of Public Prosecutions referred us to this case,
just to emphasise how easy people can take the law into
their own
hands, when a stock theft offence is committed.
6.
I think, one should pause for a moment and say, no one is allowed to
take the law into his or her own hands. Secondly, judicial
function
requires one to be impartial and at the same
time independent and
exercise such judicial powers or functions without fear of any kind.
Thirdly,
sentencing is an exercise of a discretion which discretion must be
exercised judicially and fearlessly.
7.
In sentencing, one has to consider the nature, magnitude and effect
of the offence itself, the interest of the society, the interest
of
and circumstances surrounding the offender and circumstances under
which the offence was committed. In appropriate cases, the
sentencing
court should also take into account an element of mercy.
8.
All of these factors have to be considered on an equal basis without
overemphasising or less emphasising the one against the
other.
9.
In the instant case, I think stock theft as an offence in rural areas
was unduly overemphasised and by so doing, disregarded
every other
option of sentencing other than direct imprisonment.
10.
I think, our judgments, if well motivated to deal with all the
relevant factors and communicated in a manner that will make
the
community to understand, should be sufficient to dispel any idea of
any person taking the law into his or her own hands.
11.
To allow the community to dictate to our courts as to what kind of
sentences ought to be imposed, would instead, bring the
administration of criminal justice system into a disrepute.
12.
Not every serious offence, should justify a direct imprisonment. I
deal later with this aspect. I turn now to deal with the
interest of
the community.
13.
While the public is entitled to protection against any one
individual, one cannot sacrifice the individual entirely in offering
that protection to it. The most, the court can do consistently with
justice is to protect the public for as long a period as seems
commensurate with the accused's deserts.
[See
S v Mkise
1973 3 SA 284
(N)] "For as long a period"
referred to in Mkise's supra, I do not understand it to mean direct
imprisonment at every
given time where the offence is serious and
rife. If this was to be the case, then other relevant factors might
be unduly overshadowed
by the approach.
14.
Whilst society expects that a serious offence must be punished, it
also expects that mitigating circumstances should be taken
into
consideration and that the accused's specific position be accorded
thorough consideration. [See S v Holder
1979 2 SA 20
(A) 81A-B] Sure,
the seriousness of the offence and the protection of society should
have been considered on an equal basis with
mitigating factors.
15.
As they say, where the nature of the offence and interest of society
are considered, the accused to a certain extent is still
in the
background. But, when he as a culpable human being is considered the
spotlight must be focused fully on his person in its
entirety, with
all its facts. He is not regarded with a primitive desire of revenge,
but with humane compassion which demands that
mitigating factors be
investigated in each case, however, serious, the offence might be.
[See S v Du Toit
1979 3 SA 846
(A)]
16.
This must then bring me to consider the personal circumstances of the
accused. He was a first offender. He attended school up
to grade 11.
He stopped going to school at the beginning of January 2009. He was
born in 1985 and thus about 23 years at the time
of the commission of
the offence. The appellant was therefore still relatively young at
the time of the commission of the offence.
He has been a law abiding
citizen until February 2008 when he committed the offence in
question. Despite his age, it appears that
the accused continued to
be at school until well above 21 years old. This in my view should
have prompted more probing. I deal
with the role of a presiding
officer during sentencing later.
17.
The accused pleaded guilty to the charge and he was convicted on his
plea. By this, indicated a sign of remorse, which in my
view,
required an element of mercy to be considered. Remember, mercy in a
criminal court means that justice must be done, but it
must be done
with compassion and humanity, not by rule of thumb, and that a
sentence must be assessed not callously or arbitrary
or vindictively,
but with due regard to the weakness of human beings and their
propensity for succumbing to temptation. [See S
v Van der Westhuizen
1974 4 SA 1
(C)] The accused having pleaded guilty, took the court
into his confidence and told the court during plea questioning the
circumstances
under which the offence was committed.
18.
On 17 February 2008, after having stolen the bull, he sold it for R2
800.00 to the Matega family. Matega-family had a wedding
ceremony and
the bull was slaughtered there. He used the money to buy clothes and
groceries. Whilst stealing for food or clothing
can never be an
excuse, it looks like this was not a blatant greediness on the part
of the accused. I find it necessary whilst
on this, to turn to the
role of a presiding officer during sentencing.
19.
The presiding officer must be in possession of all necessary material
facts relating to sentence. Although it is the duty of
the parties to
place the relevant and necessary facts before him, where they fail to
do so, the court has a duty to see to it that
it is done. [See S v
Phakate
1978 4 SA 477
(T); S v Sithole
1969 4 SA 286
(N) 287C-E.]
This has the effect that a presiding officer during sentencing cannot
afford to play a passive role. He or she has
to play an active role.
However, as he or she does so, must remain impartial and objective
throughout during the procedure of sentencing.
20.
After obtaining the necessary information, it is the duty of the
presiding officer to consider all relevant facts and factors
relating
to sentence. Failure to consider an important fact whether mitigating
or aggravating, may clearly cause an unjust sentence.
[See S v Pillay
1977 4 SA 531
(A) 534H-535G]
21.
I venture to say, similarly, failure to obtain relevant facts and
factors relating to sentence, where the parties have failed
to do so,
may amount to an irregularity. Remember, all relevant factors have to
be considered on an equal basis. That is, you need
to have relevant
facts relating to seriousness of the offence, interest of the
society, interests of and circumstances surrounding
the offender and
circumstances under which the offence has been committed.
Failure
to have facts relating to all of these factors, may impede on the
presiding officer's ability to exercise its discretion
properly.
22.
The trial court in the instance case, was faced with an accused
person who had shown remorse, a first offender, but even most
importantly an accused person who at the age of 23 years was still
doing grade 11. He failed to register for 2009. This should
have
prompted the trial court to probe for more information regarding the
accused social and home background. For example, why
would a young
man like the accused steal in order to buy food and clothing? An
enquiry regarding his family background could have
been important.
Failure to seek for this information has the effect of a prejudice on
the accused. This must immediately bring
me to consider correctional
supervision as a sentencing option.
23.
The trial court in its response to the query raised with it,
responded as follows: I am stating this at the risk of repeating
myself:
"The
court did in fact consider the correctional supervision or suspended
sentence. The court found that due to the seriousness
of the case,
the community might like to take the law into their own hands against
the accused. In rural areas, black people rely
on cattle farming.
Farming with cattle is a wealth. You can deprive a black person of
anything, but not of his cattle farming.
Due to escalation of stock
theft in the area, the community is likely to take the law into their
own hands to protect their cattle.
Most of the people in the rural
areas do not regard suspended sentencing as an effective sentence.
They regard it as discharge."
24.
I want to deal with the quotation in three stages or compartments.
Firstly, correctional supervision as a sentencing option,
secondly,
consideration of judicial notice during sentencing and lastly,
suspended sentence as a sentencing option.
appears
clearly that it was truly considered as such. In the instant case,
there was no probation officer's report to enable the
trial court to
consider correctional supervision under section 276(1)(h) of Act 51
of 1977 as a sentencing option. Therefore, the
assertion that it so
considered such an option could not have been based on any facts.
Correctional
Supervision as a Sentencing Option
25.
The
trial court should deal during its judgment with a correctional
supervision as a sentencing option so that it
appears
clearly that it was truly considered as such. In the instant case,
there was no probation officer's report to enable the
trial court to
consider correctional supervision under section 276(1)(h) of Act 51
of 1977 as a sentencing option. Therefore, the
assertion that it so
considered such an option could not have been based on any facts.
26.
The lack of information as indicated earlier in this judgment, could
have been indicated in the probation officer's report,
had such a
report been insisted upon. I am therefore not satisfied that the
trial court did truly consider correctional supervision
as a
sentencing option.
27.
The introduction of correctional supervision as a sentencing option
has ushered in a new phase in South African Criminal Justice
System.
[See S v R
1993 1 SA 476
(A) and
1993 (1)
SACR
209
(A)].
28.
The legislature is said to have indicated that, as a whole,
punishment whether it be rehabilitation or, if needs be, highly
punitive in nature, is not necessary or even primarily
attainable
by means of imprisonment. It is the duty of the judicial officers to
use these ample means at their disposal. It is particularly
important
to realise that there is now the possibility of imposing finely tuned
sentence without resorting to imprisonment with
all its known
disadvantages for both the prisoner and broader community [S v R
supra; also see S v E
1992 (2) SACR 625
(A)]
29.
It is now possible for a trial court to impose severe punishment
even regarding every serious offences without making use of
imprisonment and without thereby sometimes, if not most of the time,
destroying whatever good characteristic remain as far as the
offender
or prisoner is concerned. It is now possible to impose a severe
punishment and to serve the interests of the community
by imposing a
deterrent and strict sentence other than imprisonment.
30.
The accused in the present case was sentenced to eighteen months
direct imprisonment, the trial court having found that this
was the
only sentence the community would accept. I have very serious problem
with this finding. I also do not support the view
as expressed by the
Director of Public Prosecutions. Had the trial court truly considered
correctional supervision as a sentencing
option, it would have
required a probation officer's report. A well motivated and
considered report, could as well have advised
the trial court to send
the accused into the community, to serve people there. The accused
had already spent a considerable period
of time serving his sentence.
He was sentenced on 18 March 2009. He had therefore already served
about six months in jail. Had
it not been for this, I would refer
this matter back to the trial court for probation officer's report
and for consideration of
sentence afresh. An appropriate order would
later be made herein. I now turn to deal with the other issue raised
earlier in this
judgment.
The
Trial Court's Consideration of Judicial Notice during Sentencing
31.
The taking into consideration of judicial notice during sentencing
seems to be supported by the office of the Director of Public
Prosecutions and it expressed itself as follows:
"6.5
The court a quo took judicial notice of the fact that theft of stock
and produce is rife in the district of Dendron."
Having
said this, the Director of Public Prosecutions then concluded as
follows:
"6.7
It goes without saying that the crime of which the accused was
convicted is serious. The court a quo had a duty to impose
a sentence
that would reflect the community's indignation and repugnance felt
towards the crime."
Considering
what the trial court in its response to the queries raised the trial
court appears also to have taken judicial notice
of black people's
attitude regarding cattle farming.
32.
It is so that a judicial officer acquires knowledge regarding, for
example, the prevalence of a particular crime within his
district or
other aspects relevant to sentencing. It is said, it will be
unrealistic and undesirable to expect him to close his
eyes to such
knowledge because that will prevent him from taking into account an
obviously relevant factor in sentencing. It has
been decided that the
presiding officer is entitled to make use of his personal or own
knowledge regarding the prevalence of crime
in his jurisdictional
area. [S v Malinga
1962 1 SA 439
(T), R v Motlagomang and 2 Others
1958 1 SA 626
(T) 628-9.]
33.
However, the presiding officer has a duty to inform the parties of
his intention to make use of personal knowledge or to take
judicial
notice of facts as well as the notice of the knowledge. This is
especially so where use of such knowledge will adversely
affect
sentence as far as one of the parties is concerned. The party
concerned must be afforded the opportunity to address the
court on
the fact or facts which will be taken judicial notice of and to lead
such evidence as he or she deems necessary. It will
be irregular
merely to take into account the information without affording the
party the opportunity of dealing with such facts.
[See S v H
1977 2
SA 954
(A) 960G-H.] Use of personal knowledge should also not be
taken too far and evidence remains desirable. [See S v Abt 1977 (2)
PH
H136 (NC)].
34.The
following are said to be the aspects of judicial notice and
sentencing:
(i)
Statistics regarding crime like stock theft, must fall within the
local community's knowledge before a court can take judicial
notice
thereof. The expression by the trial court in the instant case
suggested that it was within the local community's knowledge
that
black people regard cattle farming as their wealth. I have a problem
with a generalisation of this statement. In the
past, blacks could
own nothing except few cattle, goats or sheep especially in South
African. Most of which donated to them by their
masters. Things have
changed now. Many blacks are working and they are dependent entirely
on their earnings as workers and some
as business people. Therefore
to make such a general statement without leading evidence would
have
been dangerous and prejudicial to the accused.
(ii)
The information must not lead to specific occurrence or incident.
Like in the present case, the trial court took into account
the three
cases of stock theft that were before him on the date the accused was
tried. This approach too was dangerous. First,
those who were
appearing in the three cases should have been presumed innocent. It
could as well be that no stock theft at all
is proved in those cases.
Therefore evidence was needed before the trial court could place
reliance on the three cases.
(iii)
The facts and circumstances of every specific crime must still be
considered on its own merits and the trial court must still
exercise
its discretion in each individual case. As I said earlier in this
judgment, the trial court in my view, overemphasised
the seriousness
of the
offence and interest of the community as against the
personal circumstances of the accused, his attitude towards the
offence displayed
by his plea of guilt and the circumstances under
which the offence was committed.
(iv)
The accused should be informed of the court's intention to take
judicial notice of certain facts as well as the nature of the
facts
and the accused should be afforded the opportunity to lead evidence
and to address the court. All of this, the trial could
has failed to
do and this omission too, should be found to have amounted to
irregularity. Again, this would have been an appropriate
case to
remit the matter to the trial court for reconsideration of sentence,
but as I said, the accused has already served about
six months of his
eighteen months. I now turn to deal with the other issue raised
earlier.
Suspended
Sentence as a Sentencing Option
35.
Section 297 is instructive on the aspect. It deals with conditional
or unconditional postponement or suspension of sentence
quite very
clear from the provisions of section 297, that suspension of a
sentence is not a light sentence, and it should not be
seen as a
discharge. If a suspended sentence as a sentencing option, was to be
disregarded for fear that the community might take
the law into their
own hands because they see it as a discharge, then there must be
something wrong with the manner in which we
communicate over
judgments to the ordinary members of our society. As I said earlier,
the court's exercise of discretion in sentencing
must be dictated by
all relevant factors and not allow the feeling of the community to
usurp such a discretion.
36.
Remember, imprisonment, should be seen as a not most commonly imposed
sentence. It is a punishment which is imposed for the
most serious
crimes. For example, for criminals who offend regularly and are not
deterred by other forms of punishment. Most people
have a very high
regard for imprisonment and believe that it will not only protect
them from offenders but also rehabilitate those
offenders. However,
in practice imprisonment is less ideal than it is often made out to
be. [See The Guide to Sentencing is South
Africa, Terblanche at 239.]
37.
In the instant case, it looks like the trial court decided to go the
route of general deterrence than individual deterrence.
General
deterrence sentence is used as an example to other potential
offenders. The belief is that the threat of similar punishment
will
cause such potential offender to refrain from committing crime. (See
again Terblanche's work at page 179 paragraph 8.3.2.1)
38.
It is said that despite this widely belief, there is an ever growing
body of research showing that general deterrence cannot
be accepted
as a fact. (See also Beyveld "A bibliography on general
deterrence 1980"). Personally I tend to agree with
this view.
One needs to be realistic with the ever growing population in prison.
This is a national problem in waiting if it is
not already a major
problem. Sending an offender to prison has to have a purpose to
serve. That is, an offender will learn something
in prison and would
not find it necessary to reoffend by the time he or she comes out of
prison.
39.
However, the danger of sending first offenders at the slightest
stroke of a person, is that, because of over population in
prison,
the authorities are just not having the muscle to deal with
appropriate programmes to mould and rehabilitate the offenders.
Secondly, because of the uneasy access to these programmes, offenders
idle in prison at the risk of new offenders been influenced
by
others, making their eventual release a danger to the society. This,
has the effect of making a person worse than what he or
she was when
he went into prison.
40.
In my view, the converse is an ideal if one was to impose an
individual deterrence. With the individual deterrence, the idea
is
that a man, being a rational creature, would refrain from commission
of crime, if he should know that the unpleasant consequence
punishment will follow commission of certain crimes. It is thus the
inhibiting effect of the threat of punishment. This in my view,
is
the essence of a suspended sentence.
41.
A suspended sentence is a reminder to an offender. It is like a red
light fleshing in the eyes and mind of the offender everytime
when he
or she is tempted to reoffend. It is not in the interest of the
society to create more criminals by sending everyone to
jail. That
is, sending every offender to jail and when they come out, they not
scared of reoffending because they got used to prison's
life.
42.
A person who was never in jail would be more fearful of jail than the
one who had a taste of life in prison. Therefore, it is
important as
far as possible to keep first offenders out of jail insofar as it
might be possible. Of course there are cases
which are
so serious that one cannot escape a jail term. The present case, is
not one of those cases. Again, the accused had already
served about
six months.
43.
In conclusion, I would make an order as follows:
43.1
The conviction of the accused is confirmed.
43.2
The sentence of eighteen months imposed on the accused is set aside
and substituted with:
"The
accused is sentenced to six months imprisonment. The sentence is
antedated to 18 March 2009 being the date on which the
accused was
sentenced."
M
F LEGODI
JUDGE
OF THE NORTH GAUTENG HIGH COURT
I
agree
A
M L PHATUDI
JUDGE
OF THE NORTH GAUTENG HIGH COURT
D09/09/sg