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2008
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[2008] ZAFSHC 24
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S v Tsholo and Others (59/2008) [2008] ZAFSHC 24 (8 May 2008)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case
No.: 59/2008
In the case between:
THE
STATE
and
MOSA
GEORGE TSHOLO EN 2 ANDER
_______________________________________________________
CORAM:
WRIGHT J
et
MOCUMIE J
_______________________________________________________
JUDGEMENT:
MOCUMIE, J
_______________________________________________________
DELIVERED
ON:
8 MAY 2008
_______________________________________________________
REVIEW JUDGEMENT
[1] The
three accused appeared in the Magistrate Court Botshabelo on
housebreaking with intent to commit an offence unknown to the
prosecutor. On 8 October 2007 they were all convicted as charged.
On 31 October 2007 they were all sentenced to 18 months
imprisonment.
They were unrepresented.
[2] My Brother
Wright
J
forwarded a query in the following terms:
â
1. Redes vir die vonnis word
verlang, veral wat die jeugdigheid vandie beskuldigdes betref.
2. Beskuldigde
3 se ouderdom is 28 jaar volgens die klagstaat, en 18 jaar volgens
die uitspraak. Wat is die korrekte ouderdom van
Beskuldigde 3?
3. Waarom
is daar nie oorweeg om verslae te bekom t.a.v die Beskuldigdes nie?â
[3] The Magistrate has
given reasons as requested and I thank her or him.
[4] The facts of the
case are shortly as follows: The three accused were amongst seven
people who broke and entered the complainantâs
shop on the night
of 26 August 2007. The roof of the shop was damaged to gain entry.
Nothing was removed from the shop. The
damage caused to the roof
amounted to R9 000,00.
[5] Accused 1âs
personal circumstances are set out as follows. He was 18 years old
when the offence was committed. He was not
attending school. He
was unemployed. He was not married but had one dependent and was
maintained by his mother. He had no previous
convictions.
[6] Accused 2âs
personal circumstances are as set out. He was 18 years old when the
offence was committed. He was unmarried,
with no dependants. He
was passed on in Grade II. His parents had passed on.
[7] Accused 3âs
personal circumstances are set out as well. He was 18 years old
when the offence was committed and also has no
previous convictions.
He is unmarried with one dependant. He passed Grade II and was not
permanently employed but earned R150,00
per available job. He was
residing with his mother who was unemployed.
[8] In his response the
Magistrate intimated that accused 3 was indeed 18 years old contrary
to his initial view. In his response
to whether it would not have
been appropriate to have obtained a presentence reports in respect
of all three accused persons, he
held a different view basing his
reasoning on
S
v Erasmus, Stefanus Cloete en vyf hersieningsake, ongerapporteerd
onder verwysing 2025/2002
gedateer 14 Oktober 2002.
[9] The issue which I
think was raised by my Brother
Wright
J
is whether the Magistrate exercised his or her discretion
judiciously when (s)he sentenced the three accused to the
aforementioned
sentence taking into account the fact that the three
were all 18 years of age and that they did not have any previous
convictions.
[10] It
is trite that sentencing is a function that lies within the
discretion of the trial court. The accused are all 18 years
old
first offenders. Two are not attending school whilst one was
attending school when he was sentenced. They all resided with
their
parents. Oneâs parents had already passed on.
[11] The Magistrate
correctly found that housebreaking is a serious offence and was
rife. It is clear from the Magistrateâs reasons
for sentence and
his or her comments that (s)he placed considerate weight on the
interests of society.
[12] However serious the
offence may be, it is irregular to proceed from the assumption that
because the offence is serious, imprisonment
was the only
appropriate sentence. See
S
v D
1999 (1) SACR 122
(NC). In spite of the seriousness of the crime
the court dealing with cases involving young children where moral
culpability cannot
be compared to that of an adult should approach
appropriate punishment in principle and as far as possible with the
view of the
potential for rehabilitation and care. See
S
v Nkosi en ân ander
2000 (2) SACR 94
(T).
[13] The Magistrate
states, on reliance of
S
v Erasmus
supra
that (s)he decided not to request pre-sentence reports. It will be
assumed that (s)he was of the view that it was not necessary
as the
three accused were already above 18 years of age when (s)he
sentenced them.
[14] For instance
correctional supervision (without imposing it on the trial Court) is
one of the options for an alternative sentence
provided for in the
Criminal Procedure Act No. 51 of 1977
especially in the case of
youthful offenders. See the extensive exposition and value of
correctional supervision by Kriegler AJA
in
S
v R
1993 (1) SACR 209
(A). It can be imposed in the most serious of
offences including murder. In obtaining a presentence report in
this case the trial
court was not obliged to impose correctional
supervision. It is an option. The value of a presentence report is
simply to give
the trial court a better view of the accused person.
To give the Court a picture of the different options and whether
rehabilitation
should come to the fore in the particular case. It
is always desirable to obtain such in cases of youthful offenders.
[15] In
my view the Magistrate misdirected himself or herself in concluding
that a prison sentence without an option of a fine was
the only
suitable sentence to impose on 18 year old first offenders.
[16] I have considered
remitting the matter back to the Court
a
quo
to
reconsider sentence afresh. However, in the light of what I have
said above and his or her remarks I have decided against it
because
this Court is in as good a position to impose an appropriate
sentence as the trial Court. I am of the view that a fine
coupled
with imprisonment wholly suspended, would be appropriated, taking
into consideration that the accused have already been
incarcerated
for a considerable period.
[17] In
the circumstances I make the following order:
17.1 The convictions
are confirmed.
17.2 The
18 months imprisonment imposed in respect of all three accused by
the Magistrate is set aside and replaced with the following:
âR1
200,00 (one thousand two hundred rand) or 8 (eight) months
imprisonment wholly suspended for 3 years on condition that the
accused is not convicted of housebreaking with intent to commit any
offence committed during the period of suspension.â
17.3 In terms of
section 282
of the
Criminal Procedure Act No. 51 of 1977
, the
sentence is antedated to 31 October 2007.
_________________
B. C. MOCUMIE, J
I
concur.
________________
G.
F. WRIGHT, J
/em