S v Koopman (CA&R 91/07) [2008] ZANCHC 1 (8 February 2008)

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[2008] ZANCHC 1
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S v Koopman (CA&R 91/07) [2008] ZANCHC 1 (8 February 2008)

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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
No: CA&R 91
/07
Heard:
04/02/2008
Delivered:
08/02/2008
In
the matter:
SHAUN
KOOPMAN Applicant
and
THE
STATE
Respondents
Coram: Bosielo AJP
et
Williams J
JUDGMENT ON APPEAL
BOSIELO
AJP
The crisp legal issue in this
appeal is whether a sentence of imprisonment for 12 months for
housebreaking with intent to steal
and theft of a video camera
valued at R 17 000-00 can legitimately or correctly be described as
“shocking”, startling” or
disturbingly inappropriate”, thus
justifying interference with that sentence by this court, sitting as
a court of appeal.
The legal principles governing
appeals against sentence are well-established and settled.
Furthermore, there is a veritable body
of decided cases, notably by
the Appellate Division (AD) and recently by the Supreme Court of
Appeal (SCA) which have attempted
to shed more light on this aspect.
See
S v Kgosimore
1999(2) SACR 238 (SCA);
S
v Kibido
1998(2) SACR
213 (SCA) at 216g. The correct judicial approach to be adopted by
the appeal court to an appeal on sentence was clearly
and lucidly
enunciated as follows by Holmes JA in
S
v de Jager & Another
1965 (2) SA 616
(AD)
at
p 628H – 629:
“
It
would not appear to be sufficiently recognised that a Court of appeal
does not have a general discretion to ameliorate the sentences
of
trial Courts. The matter is governed by principle. It is the trial
Court which has the discretion, and a Court of appeal cannot
interfere unless the discretion was not judicially exercised, that is
to say unless the sentence is vitiated by irregularity or
misdirection
or is so severe that no reasonable court could have
imposed it. In this latter regard an accepted test is whether the
sentence induces
a sense of shock, that is to say if there is a
striking disparity between the sentence passed and that which the
Court of appeal
would have imposed. It should therefore be recognised
that appellate jurisdiction to interfere with punishment is not
discretionary
but, on the contrary, is very limited.”
It is noteworthy that in the Heads
of Argument filed on appellant’s behalf, it is conceded that the
magistrate properly considered
the appellant’s personal
circumstances. It is furthermore conceded that the magistrate
properly considered, as he is required
to by law, all possible and
viable sentencing alternatives, but that, having done so, found that
direct imprisonment is the only
appropriate sentence. It is
therefore abundantly clear that appellant is not relying on any
irregularity or misdirection regarding
his sentence. His only
complaint is that the sentence is too severe and is therefore
appealing for mercy.
That mercy is an intergral if not
pivotal component of any just sentence has been accepted in many
judgments by our courts. In
S
v V
1972(3) SA 611 (AD)
at p614 Holmes JA described mercy as the hallmark of a civilized and
enlightened criminal justice system.
However, he seriously
cautioned against true or genuine mercy being confused with soft
weakness, maudlin sympathy for the appellant
or even permissive
tolerance, which in my view, would lead to a warped sentence. One
need not be a rocket scientist to see that
disturbingly lenient
sentences will cause the public to lose their faith and confidence
in the criminal justice system. Our criminal
justice system is
under serious and scathing criticism for failing to effectively deal
with the ever-increasing wave of crime in
our society. Our society
feels that it is beleaguered and seriously threatened by crime which
fear is exacerbated by the ineptitude
or impotence manifested by our
courts. To my mind, our courts can dispel these serious
misconceptions by imposing appropriate
sentences. I regret to state
that what the appellant is asking for is not genuine or true mercy
(oordeelkundige genade) but maudlin
sympathy.
Having had the opportunity to
peruse the record, I remain unpersuaded that a sentence of
imprisonment for 12 months for the kind
of housebreaking and theft
committed in
casu
is either too severe or that it induces a sense of shock. The cold
facts of this case are that the appellant broke into the shop
belonging to a certain Mr Benade, in Kakamas. Having gained
unlawful entry into the shop, the appellant stole a video camera

described as a Canon MVX25i valued at R 170 00-00 which was never
recovered. The fact that the complainant’s insurers replaced
this
camera, in my view, is not a mitigating factor. What makes this
case worse is that although it was proved conclusively that
his
palm-print was found at the scene, the appellant persisted in his
denial of complicity in the housebreaking and theft. Suffice
to
state that he proffered a pathetic and ludicrous account of how his
palm print came onto the complaint’s premises. It is
clear
therefore that appellant showed no remorse or penitence for his
conduct.
The only two facts which count in
his favour are his relative youthfulness (18 years at the time) and
the fact that he is a first
offender. Although these two facts are
ordinarily accepted as a strong mitigating facts, they are no
automatic bar to an accused,
depending on the facts of a
particular case, being sentenced to direct imprisonment. However,
what counts heavily against appellant
is the fact that the theft was
not motivated by poverty or hunger but simple greed and selfishness.
The camera which appellant
stole is an item of pure luxury, and not
a necessity. The appellant needs to learn not to hanker for things
he cannot afford.
This still remains, to my mind one of the most
important moral or social values for our survival as civilized
society.
In argument before us, Mr Cloete
for the appellant conceded (correctly in my view) that the
magistrate committed no cognisable irregularity
or misdirection
regarding his sentence. It is furthermore clear that the magistrate
decided on direct imprisonment after a thorough
, careful and
dispassionate consideration of all other viable sentencing options
as per
S v Siebert
1998
(1) SACR 554
(a),
at p
559c-d. Of even great importance, Mr Cloete conceded that, given
the facts of this case, he cannot argue with any measure
of
confidence or justification that a sentence of imprisonment for
twelve months is too severe or harsh.
Having given this matter anxious
consideration, I agree that housebreaking with intent to steal and
theft is a very serious offence
with serious consequences for
ordinary law-abiding citizens. Furthermore it is the kind of
offence which is very prevalent and
seriously invasive of a number
of constitutionally protected rights of the people of this country,
inter alia, the right to privacy,
security and integrity of one’s
home and one’s right to his/her property. I venture to say that
this scourge can only be eliminated
by the imposition of appropriate
sentences which are intended to send a clear and loud message to our
communities, including accused
persons, that our courts will not
countenance such anti-social behavior which is a serious threat to
the peace and security of
their homes.
In the circumstances,
I find that a sentence of imprisonment for 12 months, does not
induce a sense of shock. Neither can it be
described as being
shockingly, disturbingly or startlingly inappropriate to warrant
interference.
The appeal against
sentence is therefore dismissed.
_____________________
L
O BOSIELO
ACTING
JUDGE PRESIDENT
Northern
Cape Division
I
concur
_____________________
C
C WILLIAMS
JUDGE
Northern
Cape Division
On behalf of the Applicant
:
Adv. P. J CLOETE
Instructed
by: KIMBERLEY JUSTICE CENTRE
On
behalf of the Respondent
:
Adv. W. BAGANANENG
Instructed
by: DIRECTOR PUBLIC PROSECUTIONS