S v Mlenze (28/09) [2009] ZAFSHC 38 (26 March 2009)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2009
>>
[2009] ZAFSHC 38
|

|

S v Mlenze (28/09) [2009] ZAFSHC 38 (26 March 2009)

FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review
No. :
28/09
In
the review between:
THE
STATE
versus
PATRICK
MLENZE
_____________________________________________________
CORAM:
MOCUMIE,
J
et
MOLOI, AJ
JUDGMENT
BY:
MOLOI,
AJ
DELIVERED
ON:
26
MARCH 2009
[1] This
matter came before me on automatic review in terms of section 302(1)
of the Criminal Procedure Act No. 51 of 1977 (the
CPA). The accused
had been convicted in the magistrate’s court on a charge of
housebreaking and theft and sentenced to a term
of imprisonment for a
period of
twenty
four (24) months. He had pleaded guilty to the charge and pursuant
to the questioning under section 112(1)(b) of the CPA,
the magistrate
correctly convicted him of the charge he pleaded guilty to.
[2] When
the matter first served before me, an enquiry was sent to the
magistrate relating to the appropriateness of the sentence
imposed.
The magistrate’s reply thereto was as follows:
“Reasons
for sentence:
When the court imposed sentence on
accused it took into consideration the personal circumstances of the
accused viz he is 28 years
of age, first offender, he pleaded guilty
from the onset. In this regards the court had to consider what was
said in S v Sebata
1994 (2) SACR 319
(c) ‘There is however, a dark
side of the picture. The accused committed the offence for monetary
reward.
The court also took into account the
fact that housebreaking is a serious offence and in some cases the
perpetrators would turn
to injure or rape and murder people whom they
found in the house in order to hide their identities. In this
particular case it
was premeditated, committed for personal gain, it
is accordingly one of the offences in respect of which deterrence
will operate
with the maximum effect. See S v Price
1974 (2) SA
532(c)
at 533A.
References is hereby made to the case
of S v Standard
1997 (2) SACR 669
(CPA) where Judge van Deventer said
that short term of imprisonment should be avoided particular to first
offenders except in serious
cases.”
[3]
The
facts of the case as glimpsed from the questioning by the presiding
officer in terms of section 112 of the CPA were as follows:
On 16
November 2008 the accused forced open a door of his brother-in-law’s
house and entered the house. He knew his brother-in-law
kept money
in his wardrobe. He went straight to the wardrobe and removed
therefrom a cash amount of R360,00. He left the house
and started
purchasing goods with the money, among others, he bought himself
cigarettes. His brother-in-law (the complainant in
the matter)
accosted the accused in the street later and questioned him about the
incident. The accused was arrested.
[4] The
accused asked for forgiveness and tendered back to the complainant an
amount of R170,00 which the complainant accepted.
Four days
thereafter he appeared in court and according to the magistrate the
accused
“pleaded
guilty from the onset”.
The magistrate has asked this court to confirm the sentence imposed.
[5] The
accused is a 28-year old first offender. In his uncontroverted
evidence in mitigation of sentence he stated the following:
“
... Your
Worship, I do not think there is much I can say. I will just inform
the Court that I should be pardoned for this offence
I had
committed... Your Worship, I further promise the Court that I will
never again appear before Court... I do not know what
caused me to
ultimately commit this offence, Your Worship... Your Worship,
because I am not one of those
silly
people or people who commit crimes and I do not associate with them.”
He is
separated from his wife and has no children. He is employed and
earns R275,00 per week. He supports his mother and his two
siblings.
He
advanced to standard 7 at school. The mother also testified in
mitigation and said:
“
... The accused is being of
assistance to me and the other two younger children who are attending
school... Your Worship, seeing
that accused is not now at work I
know and feel that we will be having difficulty pertaining to food in
the house... Your Worship,
I know and realise the accused has
committed a serious offence. We will request this Court to punish
him in a manner that he will
realise he has been punished, he must
not repeat this again and he must work for whatever he likes to
have... Your Worship, I
would like, the Court to grant accused
opportunity to can return to work.”
She had talked to the
complainant regarding the refund of the shortfall of the money taken.
[6] In
considering the appropriate sentence the magistrate referred to the
abovementioned mitigating circumstances, referred to
the seriousness
and the prevalence of the offence of which the accused was convicted.
He found that the accused had pre-planned
the commission of the
offence based on his knowledge that the complainant kept the money in
the wardrobe as submitted by the prosecutor
without much ado. He
referred to authorities relating to fairness of the sentence to the
community and the requirement of mercy
and moderation in sentencing.
(
S
v RABIE
1975 (4) SA 855
(AD) and
S
v ZINN
1969 (2) SA 537
(AD). He also found, as suggested by the prosecutor,
that the accused had been greedy to acquire the money the way he did
but
had not inquired why the accused did so. The record does not
show, however, that there was a balancing process between the
accused’s
personal circumstances, the seriousness of the crime and
the interests of the community in the assessment of an appropriate
sentence
to be imposed.
[7] The
record does not show either that the objectives of sentencing,
viz
deterrence, prevention, reformation and retribution as set out in
S
v KHUMALO AND OTHERS
[1984] ZASCA 30
;
1984 (3) SA 327
(A) at 330 D-E were considered and themselves
balanced against the seriousness of the crime, the personal
circumstances of the
accused to arrive at an appropriate sentence.
In
S
v MALGAS
2001 (1) SACR 469
(SCA) at 477 g-h a guideline was set in the
following words:
“
... while each
of a
number
of mitigating factors when viewed in isolation may have little
persuasive force, their combined import may be considerable.”
The
magistrate referred to the object of deterrence in his reply to my
query as quoted above and cited
S
v PRICE
1974 (2) SA 532
(CPD) at 533 (A) without stating on what basis he
would prefer deterrence over rehabilitation of the accused, for
instance. He
further stated that housebreakers would not hesitate to
injure or rape or even murder people found in the house broken into
to
hide their identities. This goes against his finding that the
accused broke into his brother-in-law’s house with premeditation

and full knowledge of where the money was kept. Furthermore, the
magistrate, with reference to
S
v SEBATA
1994 (2) SACR 319
(C) submitted that the sentence is appropriate
because the offence was committed for monetary reward. In
SEBATA’s
-case,
supra
,
the offence in issue was dealing in prohibited high risk drugs which
suggest the objective to make a lot of money as drugs are
expensive.
There can be no synergy between housebreaking and theft of cash for
personal use and dealing in drugs as a business.
Each case must be
considered on its own merits.
[8] Lastly,
it does not seem the magistrate considered other sentencing options
provided for in section 278(1)(c), (f), (h) or (i)
of the CPA. It
would appear, on the contrary, that he would avoid short term
imprisonment and impose a reasonably long period
of imprisonment as
evidenced by his reference to
S
v STANDAARD
1997 (2) SACR 669
(C) without distinguishing between the facts of the
cases. A fine coupled with a term of imprisonment especially where
an accused
is employed would be most reasonable so as not to deprive
all the dependants of the income the accused generates. In principle
in cases of this nature it is most appropriate to give the accused
especially a first offender the opportunity to pay a fine. This
is
also not to deprive such an accused the possibility that family or
friends can help to keep him out of prison in the event that
he
cannot raise the fine imposed. See
S
v SEOELA
1996 (2) SACR 616
(O) at 622 a-e;
S
v MAKOE
1997 (2) SACR 705
(O) at 709b. The actual loss suffered by the
complainant in this case is, in real terms, R190,00 only. The
accused must now
forfeit for two years the weekly income of R275,00
upon which his mother and his two siblings depend and be
incapacitated to refund
the complainant. This cannot be in the
interest of the community nor justice.
[9] It
is settled law that the sentencing function must be left in the hands
of the trial court -
S
v MAPHUMULO AND OTHERS
1920 AD 56
;
S
v RABIE
1975 (4) SA 855
(A) and that the court of review or appeal can only
interfere if the discretion is not judicially and properly exercised
or where
the sentence is out of proportion with the offence committed
and is inordinately harsh:
S
v BARNARD
2004 (1) SACR 191
(SCA). In this case there are more than sufficient
reasons to interfere with the sentence imposed by the magistrate.
The accused
was committed to imprisonment on 20 November 2008.
[10]
The
following order is consequently made:
(a) The
conviction on a charge of housebreaking and theft is confirmed.
(b) The
sentence of twenty four months imprisonment is set aside and is
substituted by the following:
“
R2
000,00 (two thousand rand) or 24 (twenty four) months imprisonment of
which R1 500,00 (one thousand five hundred rand) or 18
(eighteen)
months imprisonment is suspended on condition that the accused is not
convicted of housebreaking with intent to steal
and theft committed
during the period of suspension.
”
(c) The
sentence in (b) above should be considered as having been imposed on
20 November 2008.
_____________
K.J.
MOLOI, A
J
I concur.
_______________
B.C. MOCUMIE, J
/
sp