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[2008] ZAFSHC 116
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S v K (13/08) [2008] ZAFSHC 116 (26 June 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review
No. :
13/08
In
the review between:-
THE
STATE
versus
M G K
_____________________________________________________
CORAM:
HANCKE,
J
et
MOCUMIE,
J
JUDGMENT
BY:
MOCUMIE,
J
_____________________________________________________
DELIVERED
ON:
26/06/08
_____________________________________________________
[1] Th
is
matter came before me on automatic review in terms of section 302
read with 304 of the Criminal Procedure Act 51 of 1977 (“
the
CPA
”).
The accused, a 16 year old young man was charged with two counts of
robbery and convicted of only one count on 31 January
2008 in the
Magistrate court of Botshabelo, Free State. He was sentenced to 18
months imprisonment wholly suspended on certain
conditions. The
accused was unrepresented.
[2]
I
was of the view that the sentence was too harsh and forwarded a query
to the Magistrate requesting further reasons for sentence
as the
accused was 16 years of age at the time of imposition of the
sentence. The Magistrate has since given reasons on two pages
in
which he indicates amongst others that “
ervaring
leer dat hierdie vonnisse op hersiening bekragtig word.”
[3] The
accused was correctly convicted of robbery. The issue is whether the
Magistrate exercised his discretion judiciously when
he sentenced the
accused to the aforementioned sentence.
[4] The
Magistrate found that when imposing a sentence in offences such as
this, the interests of the society should come forward
strongly. He
is of the view that because he sits with these type of offences
day-in-and-day-out it is important for the court
to bring home the
message that this is a serious offence and also to protect the
community of Botshabelo.
[5]
The Magistrate found that the
fact that the accused was with four other people that could not be
arrested, the complainant did not retrieve his articles and
that the
complainant was struck with a stone counted against him. He then on
this basis found that other options of sentence including
an option
of a fine or correctional supervision were not appropriate.
[6] The
impression one gains from the reasons for sentence is that the
Magistrate in this case has been inundated with this type
of offences
committed by youngsters in Botshabelo and is almost at the end of his
wits on how to deal with them except through
the only option he
believes will solve the problem: direct imprisonment imposed
consistently . In a society where crime is escalating
at an alarming
rate one can appreciate the difficulties he encounters in imposing
appropriate and individualised sentences in almost
similar cases that
come before him every day.
[7] In the same breath a
Court dealing with a case involving young children whose moral
culpability cannot be compared
to
that of an adult should approach punishment as far as possible from a
point of view of the potential for rehabilitation and care.
In
S
v Nkosi
2000 (1) SACR 135
(W) guidelines were laid down for the sentencing of
juvenile offenders for both serious and less serious offences. See
also
S
v Z en Vier Andere Sake
1999 (1) SACR 427
(E) at 430f;
Commentary
on the
Criminal Procedure Act
:
Du Toit
et
al
[8] In
S
v Phulwane & Others
2003
(1) SACR 631 (T) at 634h to 635a Bosielo J states:
“
When a
youth or juvenile strays from the path of rectitude to criminal
conduct, it is the responsibility of judicial officer invested
with
the task of sentencing such a youth to ensure that she or he receive
s
all relevant information pertaining to such a juvenile to enable him
or her to structure a sentence that will best suit the needs
and
interests of the particular youth. It is, after all, a salutary
principle of sentencing that sentence must be individualised.
I
venture to suggest that every judicial officer who has to sentence a
youthful offender must ensure that whatsoever sentence
he or she
decides to impose will promote rehabilitation of that particular
youth and have, as its priority, the
reintegration of the youthful
offender back into his or her family and, of course the community.”
[9] It
is clear in this case that
the
Magistrate did not even reflect on the appropriate sentence to
impose. His starting point is that the only appropriate sentence
in
this case is that of direct imprisonment. As he spells it out in his
additional reasons:
“As
die beskuldigde in hierdie saak nie 16 jaar oud was nie ,maar bo die
ouderdom van 18 jaar,sou ek nie gehuiwer het om hom
tot 3 jaar
direkte gevangenisstraf te vonnis nie,veral …die bepalings van
art 4 van die Wet op Gevaarlike Wapens in die
distrik van Botsabelo
geld.”
[10] It
is important to reiterate what authors in Criminal law and the Courts
have stated from time immemorial that imprisonment
without an option
of a fine even if suspended should be imposed after a careful
consideration of all the facts of the case, the
personal
circumstances of the accused, the nature and prevalence of the
offence and the societal purpose that can be served by
the imposition
of the sentence including its possible negative effect on the
accused.
[
11] It
is clear from the Magistrate’s reasons for sentence and his
comments in his response to my query that he placed considerable
weight on the interests of society and totally disregarded the
socio-economic factors alluded to by the probation officer in the
presentence report, the youthfulness of the accused and the fact that
the accused was a first offender.
[12] However
serious the offence may be, it is irregular to proceed from the
assumption that because the offence was serious, imprisonment
was the
only appropriate sentence as stressed by the Magistrate in his
two-paged response. See
S
v D
1999 (1) SACR 122 (NC) at 127a-b;
S
v Du Toit
1979 (3) SA 846 (A) at 857H-858A.
[13]
Correctional supervision is one of the options for an alternative
sentence provided for in the CPA. It is a severe sentence
that has
rehabilitation and retribution compacted into one. It gives results
required if the aim of the presiding officer is amongst
others to
ensure that this young offender is
brought
in line with the correct way of living where he can serve punishment
amidst the society he has wronged. It can even be
imposed in the
most serious of offences including murder. See the exposition and
value of correctional supervision by
Kriegler
AJA
in
S
v R
1993 (1) SACR 209 (A). The presentence report that the Magistrate was
furnished with was to assist the Court in weighing all the
options
and then imposing an appropriate sentence .Not to impose the
sentence which in the view of a probation officer is the
appropriate
sentence.
[14] When
imposing sentence a presiding officer must blend the sentence it has
in mind and eventually imposes with mercy. Mercy
is not a sign of
weakness or fear for the criminals. In
S
v Groenemeyer
1974 (2) SA 542 (C) at 544A-B the Court states:
“
Die
Howe is nie hier om wraak te neem nie. Die Howe sink nooit, ooit, tot
die peil van die misdadiger nie. Straf moet onder alle
omstandighede
menslik wees, en, wat meer is, straf is nie iets wat jy uit 'n
slotmasjien haal nie. Jy druk nie 'n misdaad in die
masjien en haal
'n
straf
uit nie. Dit is die kenmerk van ons regstelsel dat mense gestraf
word as hulleself, as mense. Dit is altyd die mens self
wat die reg
mee te doen het, en die landdros het dit uit die oog verloor in
hierdie vonnis. Hy het nie reg gehandel nie toe hy
gesê het die
Hof het nie genade nie. Die Hof het genade, - ek neem aan by 'genade'
hier meen hy die Engelse woord 'compassion'
- vir elke persoon wat
voor hom verskyn. Daar kan geen geregtigheid wees sonder genade
nie."
”
[15]
A year later in
S
v J
1975 (3) SA 146 (O) at 159F-G
Steyn
J
(as he was then) echoed the same words when he stated:
“
Die
Hof is nie 'n pynbank nie. Dit is nie 'n instrument van pyniging
waarop 'n beskuldigde gebreek moet word omdat hy 'n weersinwekkende
misdaad gepleeg het nie. Die Hof is die instrument waardeur die
samelewing handel beide om homself te beveilig sowel as om die
beskuldigde, indien moontlik, deur middel van straf te red as mens en
te verbeter wanneer hy homself so gedra het dat hy die samelewing
onwettiglik leed en skade aangedoen het. Wanneer 'n mens 'n lid
van
die samelewing op onwettige wyse onregmatiglik leed of skade aandoen
dan doen hy die samelewing self ook leed en skade aan.
Maar, ons is
'n beskaafde Westerse gemeenskap met die Christelike geloof as die
grondslag en die hoeksteenwaarop ons Staat en ons
samelewing gebou
is. Dit moet altyd in gedagte gehou word en die goue boodskap van die
Bergprediking moet ook nooit uit die oog
verloor word nie. Wanneer 'n
Hof moet besluit watter straf opgelê moet word, moet hy
derhalwe aandagtig daaraan wees dat
die doodstraf die
onbeskryflik-uiterste stap is wat die samelewing kan doen en dat 'n
menslike lewe uitgewis behoort te word alleenlik
wanneer dit onder
die omstandighede van die besonderesaak algeheel onvermydelik is en
daar dus in werklikheid vir die Hof geen
ander keuse is nie.
"
In our
context the values underpinning our Constitution will be the
cornerstone where
Steyn,
J
refers to the Bible and the death penalty. But the message still
resonates well today.
[16] I
am of the view that the Magistrate misdirected himself in concluding
that a prison sentence without an option of a fine,
or correctional
supervision, was the only suitable sentence to impose on a
16
year old first offender in these circumstances. A suspended term of
imprisonment remains direct imprisonment.
[17] 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 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 in view of the investigation
done by the
probation officer indicating that the accused is not a candidate for
correctional supervision a fine coupled with imprisonment
wholly
suspended, would be appropriate.
In
the circumstances I make the following order:
The conviction is
confirmed.
The
sentence of 18(eighteen) months imprisonment wholly suspended for 3
years on certain conditions imposed by the Magistrate
is set aside
and substituted with the following:
“
R1200.00
(one thousand and two hundred rand) or 8 (eight) months imprisonment
which is wholly suspended for 3 (three) years on condition
that the
accused is not convicted of robbery, theft, assault or attempt
thereto committed during the period of suspension.”
3. The Clerk of the
Court, Botshabelo should bring this judgment to the attention of the
accused.
________________
B.C. MOCUMIE, J
I concur.
_
______________
S.P.B.
HANCKE,J