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[2008] ZAFSHC 111
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S v Kemme and Others (206/2008) [2008] ZAFSHC 111 (21 August 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review No. : 206/2008
In
the review between:-
THE
STATE
versus
ITUMELENG
GODFREY KEMME
AND 2 OTHERS
_____________________________________________________
CORAM:
VAN
ZYL, J
et
MOCUMIE,
J
JUDGMENT
BY:
MOCUMIE,
J
_____________________________________________________
DELIVERED
ON:
21
AUGUST 2008
_____________________________________________________
REVIEW JUDGMENT
_____________________________________________________
[1] The three accused
appeared in the Magistrate Court, Botshabelo on a charge of
housebreaking with intent to steal and theft.
All three were
convicted as charged. Accused 1 and 2 were sentenced to 2 (two)
years imprisonment. Accused 3, a 16 year old
young man, was
sentenced to 18 (eighteen) months imprisonment wholly suspended for 3
(three) years on certain conditions.
[2] I was of the view
that the sentence was too harsh and sent a query to the presiding
officer who has since responded. I thank
him for the response.
[3] In
short the facts of the case are as follows: The three accused broke
into a shop in Botshabelo by entering through the door.
They stole a
pair of All Star tekkies and groceries worth R1 070,00. The goods
were recovered from them the next day, before
they could sell them as
they had intended.
[4] All
three accused pleaded guilty to the charge. They were then questioned
in terms of
section 112
of the
Criminal Procedure Act 51 of 1977
(“
the
CPA
”).
They were convicted as charged based on their answers to the
questions posed by the presiding officer. I am satisfied
that their
convictions are in order. However what has caused me serious
consternation is the sentences which were imposed on the
three
accused. For the reasons which follow hereunder, I have found the
sentences imposed to be shockingly inappropriate and disproportionate
to the gravity of the offences for which they were convicted.
[5] 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. It is an established
principle that sentence must strike a judicious balance between the
accused’s personal
circumstances, the seriousness of the
offence and the interests of the society for which the trial court
must strive. It follows
therefore that it will be a misdirection for
a presiding officer to overemphasise the seriousness of the offence
and underemphasise
the personal circumstances of the offender as this
might result in a warped or inappropriate sentence which will warrant
the court
on appeal or review to interfere.
[6] It
is clear that the personal circumstances of accused 1 as set out in
the reasons for sentence are eminently impressive. He
pleaded guilty
to the charge; the goods were recovered; the shop was not damaged as
in other similar cases in order to gain entry,
in fact it is not even
clear how the accused gained entry into the shop as they said that
they opened the door. Of great importance
accused 1 has no previous
convictions; this proves that he has no propensity to commit crime;
he is 20 years old and went up to
Grade 11. He has no children or
dependants. He is employed and earns R50, 00 to R60, 00 per day; it
is clear he has a positive
attitude towards self-improvement; there
are prospects of rehabilitation.
[7] The
personal circumstances of accused 2 are equally impressive. He also
pleaded guilty; thus showing remorse and insight into
his conduct;
the goods were recovered which implies that the complainant did
sustained no loss; he is only 19 years of age and
attended school up
to Grade 8;he is not married and has no children or dependants. At
the time of the commission of this offence
he was employed although
no further details in this regard were recorded or noted; he
therefore shows no propensity to commit crimes;
he has shown that he
can be rehabilitated and converted into a useful member of society.
[8] Accused
3 is the youngest of the three; he is 16 years of age; having been
born on 11 February 1991; understandably he has no
dependants; he
only went up to Grade 8 at school; he is the second child out of
four children. A presentence report that was
requested by the
president officer indicated that accused 3 stayed with both parents
and further that accused 3 was a good mannered
child although he is
said to be disobedient to his father; accused 3 has no previous
convictions which like accused 1 and 2 means
that he has no
propensity to commit crimes; he has huge prospects of being
successfully rehabilitated and saved from a new criminal
path; all
efforts should be made to transform him into a useful member of
society; it is a real possibility that he acted under
wrong influence
by both accused 1 and 2 who are older than him.
[9] The
presiding officer was of the view that the only appropriate sentence
in respect of the three accused was direct imprisonment
even if
suspended in the case of accused 3, the youngest of the three. The
presiding officer justified the sentence by stating
that a court
should not allow itself to be
“emotionally
influenced”
by an accused’s personal circumstances. Although he accepts
that the accused’s personal circumstances should be weighed
with all other relevant factors to sentence the presiding officer
held the view that because of the seriousness of the offence
and the
prevalence of the offence a suspended sentence will not be
appropriate in respect of all three accused. In motivating the
sentence, the presiding officer stated the following:
“
Alhoewel elke saak op eie
meriete behandel word kan ek Haar Edele die Regter belas met die
hersiening, gerusstel dat die vonnisse
in ooreenstemming is met die
vonnisse in die verlede opgelê,”
[10]
To
my mind such a judicial approach to sentencing shows a clear
misdirection. Although it is permissible for a presiding officer
to
have regard to previous sentences in similar cases, it would be a
serious misdirection for presiding officers without much reflection
or independent thoughts, to accept such previous sentences as a norm
or decisive. Self evidently such an approach would militate
against
the equally important principle of individualisation of sentences to
meet peculiar merits of each individual accused. I
would readily
concede that the notion of the norm or previous sentence in similar
cases is meritorious as it addresses the equally
valid considerations
of consistency, predictability and uniformity. However uniformity
should not be elevated to a principle at
variance both with a
flexible discretion of the trial court and with the accepted
limitation of appellate interference therewith.
Failure by the trial
court to exercise its discretion would, I fear, result in sentences
which are warped. See
S
v Giannoulis
1975 (4) SA867 (A) at 873E-H
[1
1] Reverting
to the facts of this case, it is clear that notwithstanding the
different circumstances of each case and saying so,
the presiding
officer imposed one and the same sentence without exception in his
court because
“...
die
vonnisse in
ooreenstemming is met die vonnisse in die verlede opgelê.”
,
[12]
The presiding officer creates an impression that this High Court has
previously confirmed this type of sentence without questioning
and
thereby giving some kind of judicial approval to the arbitrary
imposition of sentences. The impression so created cannot be
correct
judging from the number of similar sentences which have been set
aside previously.
[13] The
impression one gains from the reasons for sentence is that the
presiding officer in this case has been inundated with these
types of
offences in his court committed by youngsters in Botshabelo. It is
clear that the presiding officer is at the end of his
wits on how to
deal with them and believes that the only effective solution to the
problem is 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. It
would however be wrong to sacrifice youthful
offenders who have
prospects of being rehabilitated on the alter of general deterrence.
[14]
It remains a trite and salutary principle that a court dealing with
a case involving a young offender 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) very important and useful 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; Du Toit et al
Criminal Procedure Act:
Commentary
.
[15] I
have found the
dictum
of
Bosielo
J
in
S
v Phulwane & Others
2003
(1) SACR 631
(T) at 634h to 635a particularly apt where he states:
“
When a
youth or juvenile strays from the path
of rectitude to
criminal conduct, it is the responsibility of judicial officers
invested with the task of sentencing such a youth
to ensure that she
or he receives 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 the 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.
”
[1
6] It
is particularly disconcerting to me that it is clear that the
presiding officer failed to consider alternative sentencing
options,
like a fine or correctional supervision. The value of correctional
supervision as a strong but yet constructive and corrective
alternative sentencing option cannot be overemphasised. See
S
v R
1993 (1) SACR 209
(A) at 220g-h;
S v Omar
1993 (2) SACR 5
(C) at 13d-e;
S
v Volkwyn
1995 (1) SACR 286
(A) at 289d. To my mind this is a typical case in
which correctional supervision in respect of all three accused could
and should
have been considered and imposed within the limitations of
section 276(1)(h)
including the suitability of the accused as
candidates for correctional supervision.
[17] It
is clear that the presiding officer overemphasised the interests of
the society at the expense of the personal circumstances
of all three
accused especially accused 3. In my view he adopted a completely
incorrect approach. That on its own is not just a
mere misdirection
but of the nature and extent alluded to in
S
v Pillay
,
at 535E-G which vitiates the decision on sentence. This Court
thought of remitting this matter for reconsideration of sentence.
However in view of what I have said above this Court is in a good
position as the trial court to impose an appropriate sentence
as the
trial court in respect of accused 1 and 2 as all facts relevant to
sentence are on record.
[18] In
respect of accused 3, the pre-sentence report that is attached to the
record is scanty and has no details that would assist
any court to
consider
inter
alia
the different types of rehabilitative programmes that the accused
would benefit from. Nor does the report show whether the accused
attends school, church or any recreational activities in order to
formulate the time for house arrest and community service
appropriately.
[19] In
the circumstances I make the following order:
ORDER
In
respect of accused 1
19.1 The
conviction is confirmed.
19.2 The
sentence of 2 (two) years imprisonment imposed on 19 March 2008 is
set aside and substituted by the following:
“R900,
00 or 8 months imprisonment”
In
respect of accused 2
19.3
The
conviction is confirmed.
The
sentence of 2 (two) years imprisonment imposed on
19
March 2008 is substituted by the following:
“
R900,
00 or 8 months imprisonment”
In
respect of accused 3
The conviction is
confirmed.
The
suspended sentence of 18 (eighteen) months imprisonment imposed on
19
March 2008 is set aside and the case is remitted to the presiding
officer to consider imposition of correctional supervision
in terms
of
section 276(1)(h)
of the Criminal Procedure Act 51 of 1977.
The
presiding
officer should obtain an updated and fully detailed pre-sentence
report from Social Development and Correctional Services.
All
three accused should be brought before the court to be informed of
this order within 7 days of this order.
_
______________
B.C. MOCUMIE, J
I
concur.
____________
C. VAN ZYL, J
/sp
2008/07/14
12:44 PM
2008/07/22
04:18 PM
2008/07/30
12:49 PM
2008/07/30
02:30 PM