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[2008] ZAWCHC 171
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Hess v S (A319/2007) [2008] ZAWCHC 171 (11 April 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO:
A319/2007
DATE:
11
APRIL 2008
In
the matter between:
SIASTO
HESS
Appellant
and
THE
STATE
Respondent
JUDGMENT
ZONDI,
J
:
[1]
The appellant, who was legally represented, appeared in the
Oudtshoorn Magistrate's Court on 4 December 2006 on a charge of
theft. It is alleged in the charge sheet that on 29 November 2006 he
stole from a shop six packets of biltong worth R60. The appellant
pleaded guilty and was convicted on his plea. He was sentenced three
years' imprisonment. With the leave of the Court a
quo
the
appellant now appeals against sentence only.
[2]
The appellant's counsel in deference to the firmly established
principle that the imposition of sentence is pre-eminently
a matter
falling within the discretion of a trial court and that court of
appeal will only interfere with such discretion if
it was not
properly or judiciously exercised, attacked the sentence imposed on
the basis of various factors which he submitted
individually and
cumulatively constitute a misdirection which permits the
reassessment of the sentence imposed by the trial Court.
[3]
However, not every misdirection warrants interference with the
sentence imposed by the trial Court. It has to be a material
misdirection, that is to say it must be of such a nature or degree
that it shows directly or indirectly that the trial Court
failed to
properly or reasonably exercise its discretion with regard to
sentencing. It appears to be trite that a misdirection
is material
if the court has misconstrued the facts, has failed to take
cognisance of the factors it should have taken into account
or it
has over or under-accentuated an accused's personal circumstances in
relation to other relevant factors.
[4]
The question before this Court is whether the magistrate, in
sentencing the appellant to three years' imprisonment, committed
a
misdirection which justifies this Court's interference with the
exercise of its discretion. Upon a perusal of the record
it
appears that the accused at the time of the commission of the
offence had eight previous convictions relating to theft and
one to
robbery. Those are the ones that are relevant for purposes of this
appeal, the last offence having been committed on 24
May 2003 for
which he was sentenced to 18 months' imprisonment. The accused was
released on 4 October 2006. It is this long fist
of previous
convictions which appears to have influenced the magistrate in
deciding on sentencing the accused to three years'
imprisonment.
[5]
However, the mere fact that the appellant had previous convictions
does not In itself justify the imposition of the sentence
imposed by
the trial Court. It does, however, appear that the appellant may be
an habitual criminal but no investigation was
done in this regard
and it is irrelevant, in
S
v Beja
2003(1) SACR (SCA) at 168-170a-b warned against the danger of
punishing the accused for his previous record instead for the
offence charged:
"In
a case such as this it is necessary to be aware
of
three considerations:
(a)
The accused should be sentenced for the offence charged with and not
for his previous record;
(b) the
public interest is harmed rather than served by sentences that are
out of proportion to the gravity of the offence;
(c) while
it may be justifiable up to a point to impose escalating sentences
on offenders who keep on repeating the same offence,
there are
boundaries to the extent to which sentences can be increased.
Therefore, if a thief steals a loaf of bread he should
not have to
go to jail for 10 years because he stole a number of loaves of
bread, one at a time, in the past. His sentence should
never
escalate with the passage of time from a few weeks for initial
offences to a few months and eventually to years and then
to many
years. The offence remains petty no matter how often it is repeated.
Punishment should always fit the crime. When it
comes to petty
theft, although the offender's previous record makes imprisonment
imperative, the period thereof must always remain
proportional to
the seriousness of the petty nature of the offence".
[6]
Applying the test which was formulated in
S
v
Beta
,
in my view, the magistrate clearly misdirected himself in imposing a
sentence of three years' imprisonment for this type of
offence. A
term of three years' imprisonment seems to be extremely excessive in
the circumstances and does instil a sense of
shock. There must be a
relation between punishment and the offence. An accused person
cannot be punished for his past record.
In my view, a term of
imprisonment is unavoidable but the period should be much less than
three years because it Is so disproportionate
to the seriousness of
the crime. Taking all these factors into consideration, I would
impose a sentence of 16 months' imprisonment.
[7]
In the result, the appeal against sentence succeeds and the sentence
is set aside and substituted with the following:
"The
accused is sentenced to undergo a period of 16 months' imprisonment.
The
sentence is ante-dated to 21 December 2006".
ZONDI,
J
LOUW,
J
:
I agree. It is so ordered.
LOUW.
J