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[2008] ZAFSHC 79
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S v Hendricks (209/2008) [2008] ZAFSHC 79 (5 August 2008)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case
No.: 209/2008
In the case between:
THE
STATE
and
JIM
HENDRICKS
_______________________________________________________
CORAM:
VAN ZYL, J
et
MOCUMIE,
J
_______________________________________________________
JUDGEMENT:
MOCUMIE, J
_______________________________________________________
DELIVERED
ON:
5 AUGUST 2008
_______________________________________________________
REVIEW
JUDGEMENT
[1] This
matter came before me on automatic review in terms of section 302
read with 304 of the
Criminal Procedure Act, No. 51 of 1977
(“the
CPA
”).
The accused, a 29 year old man was charged with robbery in the
Magistrate Court, Botshabelo. He pleaded guilty. He
was convicted
as charged and sentenced to 2 years imprisonment.
[2] I was of the view
that the sentence was too harsh and forwarded a query couched in the
following terms:
“
Taking into account factors
enumerated on page 11, lines 15 – 25 and page 12, lines 1 –
5 is the sentence not too
harsh?”
[3] The
Magistrate has given his reasons
inter
alia
he states:
“
Ek is
steeds van oordeel dat die vonnisse onder die omstandighede heel
gepas is en volstaan met my ex
tempore
uitspraak. Dit mag wees date k die persoonlike omstandighede
oorbeklemtoon het.
Alhoewel
elke saak op eie meriete behandel word, kan ek Haar Edele die Regter
belas met die hersiening, gerustel dat die vonnis
in oorstemming is
met die vonnisse in die verlede opgelê.
“
(Own
underlining.)
[4] The
accused was correctly convicted of robbery. The issue is whether
the presiding officer exercised his discretion judiciously
when he
sentenced the accused to the aforementioned sentence.
It is trite that sentencing is a function that lies within the
discretion of the trial court. See
Rex
v Mapumulo and Others
1920 AD 56
;
S
v Rabie
1975 (4) SA 855
(A);
S
v Barnard
2004 (1) SACR 191
(SCA). A Court of Appeal or review is not
entitled to interfere with the imposed sentence unless it is
convinced that the sentence
discretion has been exercised improperly
or unreasonably. See
S
v Pillay
1977 (4) SA 531(A)
at 534H–535G. Amongst other varying
factors depending from one case to another it may be a misdirection
for the presiding
officer to overemphasise the seriousness of the
offence or the interest of the society and underemphasise the
personal circumstances
of the offender which would then warrant the
court on appeal or review to interfere.
[
5] The
accused’s personal circumstances are as set out by the
presiding officer in his judgment. He pleaded guilty to the
charge.
The cellphone was recovered. The accused’s two previous
convictions are more than 10 years old and the presiding
officer
indicates correctly so that he considered him a first offender. The
accused is 29 years old and married with a child
who is a year and a
half old. The wife is unemployed. The accused is the sole
breadwinner. He is employed by White Car for
a year and earns R1
500,00 per month. Prior to his current employment he was working
for Hamilton Glass Windows. He went up
to standard 9 (the current
Grade 11).
[6] The
presiding officer found that a suspended sentence is not appropriate
because no court should allow itself to be
“emotionally
influenced
”
by the accused’s personal circumstances. The presiding
officer found that an option of fine is not appropriate
because of
the seriousness of the offence regardless of whether the accused can
afford to pay a fine. He found further that
correctional
supervision was not appropriate as the accused fell in the category
of criminals that ought to be removed from the
society. On these
bases he found that the only appropriate sentence was that of direct
imprisonment.
[7] The
impression one gains from this response is two fold. One, the
presiding officer has not distinguished or treated the accused
as an
individual who has his own personal circumstances and who has
committed a robbery not exactly the same as the robberies
that come
before him every day. Two, the presiding officer has told himself
that he will treat all robberies alike and impose
the same sentence
– direct imprisonment irrespective of the different
circumstances of the individuals appearing before
him. 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. More so that he
has been doing so for many years.
[8] In
the same breath the sober impartiality of a presiding officer is
measured
inter
alia
by the manner in which (s)he is capable of imposing sentences which
are punitive but yet rehabilitative in nature. The type
of sentence
that an accused person can learn from which should not as far as
possible include amongst others loss of employment,
temporary or
permanent. See
S
v D
1995 (1) SACR 259
(A) at 264e.
[9] It
is clear that the presiding officer did not reflect on the
appropriate sentence to impose. The passage in which he indicates
that he considered other options of sentence flies in the face of
the type of sentence he subsequently imposed. It is misdirection
for the court in this case to have overemphasised the seriousness of
the crime and underemphasised the personal circumstances
of the
offender. See
S
v Zinn
1969 (2) SA 537
(A) at 540 F–G. The sentence imposed in this
case and in these circumstances is manifestly inappropriate taking
into account
that the accused was employed and earning R1 500, 00
and could afford to pay a fine. This is not the type of case where
the
accused ought to be removed from society yet. In my view a fine
coupled with imprisonment would have sent the right message to
the
accused and to the society. See
R
v Tshabalala en Andere
1960 (2) SA 35
(O);
S
v Bekilifa; S v Gonya; S v Tshesi**
1968 (4) SA 369
(O);
S
v Dimbe
1981 (1) SA 994
(O).
[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 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 importantly
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 presiding officer’s
ex
tempore
reasons and his comments to my query that he placed considerable
weight on the interests of society and totally disregarded the
fact
that the accused was a first offender, he pleaded guilty, was
employed and many other mitigating factors in his favour.
[1
2] I
am of the view that it is important to re-emphasise that, however
serious the offence may be, it is irregular to proceed
from the
assumption that imprisonment was the only appropriate sentence as is
clear from the presiding officer’s reasons.
See
S
v Du Toit
197 (3) SA 846
(A) at 857H – 858A.
[1
3] When
imposing sentence a presiding officer
must
blend the sentence it has in mind 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."”
[1
4]
Steyn
J
(as he was then) in
S
v J
1975 (3) SA 146
(O) at 159F-G 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.
[15] I
am of the view that the presiding officer misdirected himself in
concluding that in this case a prison sentence without
an option of
a fine, was the only suitable sentence to impose on a 29 year old
first offender in these circumstances.
[1
6] In
the circumstances I make the following order:
ORDER:
The conviction is
confirmed.
The
sentence of 2 years imprisonment imposed by the presiding officer
on 27 August 2008, is set aside and substituted by the
following:
“
R1
200,00 (One thousand two hundred rand) or 8 (eight) months
imprisonment.”
17.3 The
Clerk of the Court, Botshabelo should bring this judgment to the
attention of Correctional Services, Mangaung Correctional
Services
and the accused immediately.
_____
___________
B. C. MOCUMIE, J
I concur.
____________
C. VAN ZYL, J
2008/07/31
3.25
/em