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2008
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[2008] ZANCHC 52
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S v Oos (20/2008) [2008] ZANCHC 52 (27 June 2008)
Reportable:
YES / NO
Circulate
to Judges: YES / NO
Circulate
to Magistrates: YES / NO
Circulate
to Regional Magistrates: YES / NO
IN THE HIGH COURT OF
SOUTH AFRICA
(Northern Cape
Division)
Case
Nr:
20/2008
Case
Heard:
23/06/2008
Date
delivered:
27/06/2008
In
the matter between:
Terrence
Oss
PLAINTIFF
and
THE
STATE
RESPONDENT
Coram:
Williams J et Olivier J
JUDGMENT
ON APPEAL
Olivier J:
The
appellant was convicted in the magistrate’s court on a charge
of housebreaking with inten
t
to steal and theft. The matter was referred to the regional court
for purposes of sentence and there he was sentenced to 10
years
imprisonment, of which a period of 3 years was conditionally
suspended for five years. The appeal is directed at the sentence
only.
It
is trite law that a C
ourt
of appeal will only interfere with a sentence where a material
irregularity or misdirection has occurred in the consideration
of
sentence or where the sentence is shockingly inappropriate (see
S
v Shaik and Others
[2007] ZACC 19
;
2008 (1) SACR 1
(CC) para [72]).
The
only ground of appeal advanced by the appellant in his application
for leave to appeal is that the trial court was “
harsh
”
in imposing the sentence.
In
the heads of argument on behalf of the appellant it was submitted:
that a period of 8
years and 7 months had expired since the appellant’s last
previous conviction; and
that the appellant
had himself reported the crime to the police and that it was
unlikely that the crime would have been solved
had he not done so.
The appellant had
pleaded guilty to the charge and in his statement in terms of
section 112(2) of the Criminal Procedure Act expressed
his remorse
for what he had done. I agree, however, with the regional
magistrate’s observation that this should be seen
against the
background of the events that had led to the charge against the
appellant.
He
had partaken in the crime at the request of a person who had
promised to pay him for his services and when he was not paid
he not
only reported the matter to the police in a clear act of vengeance,
but also damaged the co-perpetrator’s vehicle
and took money
from it.
The
fact that the appellant reported the matter to the police would
therefore seem to have been motivated by revenge, rather than
by
a feeling of remorse, and once he had confessed to the police, he
would have had little option but to plead guilty to the charge.
The appellant was 29
years old at the time of the trial. He had left school in 1995 when
he was in standard 7. Both his parents
had passed away while he was
serving a term of imprisonment.
Whatever
mitigating weight these personal circumstances might carry, it is by
far outweighed by the appellant’s list of
previous convictions
and the circumstances of the crime he was convicted of.
His
record reflected no less than nine previous convictions involving
dishonesty, five of theft and four of housebreaking with
intent to
steal and theft, for which a variety of sentences had been imposed,
including corporal punishment, the postponement
of sentence, a fine,
a partially suspended sentence and sentences of imprisonment.
On
the last occasion when the appellant was convicted of housebreaking
with intent to steal and theft, he was sentenced to 5 years
imprisonment, and warned of being declared a habitual criminal in
terms of section 286 of the Criminal Procedure Act.
A
mere seven months after having been released on parole he committed
this crime. The period between the last previous conviction
on his
record should therefore be seen against this background.
At
the time of his trial the appellant was again serving a sentence of
3 years imprisonment for damaging his co-perpetrator’s
vehicle
and taking money from it.
In
his section 112(2) statement the appellant contended that he had
been unemployed at the time of the offence and had needed
the money.
He failed, however, to disclose the amount he had expected to be
paid. It is also of some interest to note that
he had been at a
tavern when he was approached by his co-perpetrator in connection
with this crime.
The
regional magistrate pointed out that there had been “
an
alarming increase in crimes of this kind
”.
It
is clear that the regional magistrate made a mistake about the
number of previous convictions. I am not, however, persuaded
that
this would justify an interference with the present sentence.
Furthermore it might
possibly be argued that the regional magistrate over-emphasized the
importance or relevance of the fact that
the building the accused
and his co-perpetrator had broken into, was a church building.
Again, however, I am of the view that
this would not in itself
justify an interference with the sentence.
Even
when regard is had to t
he
fact that the appellant was already serving a sentence of 3 years
imprisonment, the sentence imposed by the regional magistrate
and
the cumulative effect of the two sentences do not strike me as
shockingly inappropriate.
In the circumstances I
would make the following order:
The appeal against
the sentence is dismissed and the sentence is confirmed.
________________________
C J OLIVIER
JUDGE
NORTHERN CAPE
DIVISION
I
agree and it is so ordered:
________________________
C C WILLIAMS
JUDGE
NORTHERN CAPE
DIVISION
For the
Plaintiff:
Adv
T Fourie
On
behalf of
: Legal
Aid Board, KIMBERLEY
For the
Respondent: Adv C Kersten
On
behalf of
: Director
of Public Prosecutions, KIMBERLEY