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[2008] ZAWCHC 209
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Malgas v S (A401/2007) [2008] ZAWCHC 209 (23 May 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(
CAPE
OF GOOD HOPE PROVINCIAL DIVISION
)
CASE
NO:
A401/2007
DATE:
23
MAY 2008
In
the matter between:
ABDUL
MALGAS
Appellant
and
THE
STATE
Respondent
JUDGMENT
ZONOI,
J
:
[1]
The appellant appeared at the Oudtshoorn Magistrate's Court on 31
January 2007 on a charge of theft of R850 cash. He pleaded
guilty to
the charge in terms of
section 112
of the
Criminal Procedure Act 51
of 1977
. He was convicted on his own plea and was sentenced to three
years' imprisonment. He was not legally represented. With the leave
of the Court
a
quo
he
now appeals to this Court against sentence only.
[2]
Upon a perusal of the record of the proceedings in the court
a
quo
the
offence appears to have been committed under the following
circumstances. The appellant stole money from the complainant who
happens to be his sister. He removed cash in the sum of R300 from her
handbag. The appellant also stole a further sum of R550 cash
from the
complainant's bank account. He used the complainant's bank card to
withdraw cash from her bank account.
[3]
Ms
Fitzpatrick
appears for the appellant and Mr
Banderker
for the State. Ms
Fitzpatrick
attacked
the
sentence on three grounds. She argued that the Court a
quo
erred
in over-emphasising the seriousness of the offence at the expense of
the appellant's personal circumstances; by not taking
into account
the effect which a long term prison sentence will have on a young
man; and finally that a sentence of three years'
imprisonment is so
startlingly inappropriate that no reasonable court would have imposed
it. She submitted that the appellant was
a suitable candidate for
correctional supervision in the light of his age.
[4]
I agree with counsel for the State, Mr
Banderker
.
that the imposition of a sentence and the infliction of punishment is
pre-eminently a matter for the discretion of a trial court
and that
the appeal court will only interfere with the sentence where such
discretion was not reasonably and properly exercised.
The test is
whether the sentence is vitiated by an irregularity or misdirection
or is disturbingly inappropriate. (See in this
regard
S
v Rabie
1975(4)
SA 855 AD)
[5]
However, not every misdirection warrants interference with the
sentence imposed by the trial court.
H
has
to be a material one, that is, which according to the dictates of
justice engenders a clear conviction that an error of such
a nature,
degree or seriousness has been committed that it shows directly or
indirectly that a trial court failed to properly or
reasonably
exercise its discretion with regard to sentence. (See
S
v Cupido
1998(2) SACR 213 (SCA) at 216H-J)
[6]
The question before this Court is whether the magistrate in
sentencing the appellant to three years' imprisonment for theft
of
R850 committed a misdirection which justifies this Court's
interference with the exercise of that discretion. Upon a perusal
of
the record of the proceedings in the court a
quo
it
appears that the appellant at the time of the commission of the
offence
in
casu
had
five previous convictions all relating to the taking of property.
It also appears that when he committed the present
offence
on 30 January 2007, he had just finished serving a jail term of 634
days due to his having violated parole conditions.
The nature of the
offence is, however, not indicated on the record. He committed these
offences when he was younger than 13 years
old.
[7]
It is the existence of previous convictions which influenced the
magistrates mind in deciding to sentence the appellant to three
years' imprisonment for the theft of R850 cash. The mere fact that
the appellant has previous convictions does not justify the
sentence
imposed He had to be sentenced for the offence he committed and not
for his previous convictions. However, having said
that, one cannot
say that an amount of R850 is minimal or so small to the extent that
three years' imprisonment is not justifiable.
[8]
In
S
v Beta
2003(1) SACR 168 (EC) at 170a-b the Court warned against the danger
of punishing the accused for his previous record instead for
the
offence charged. It is clear that according to
S
v Beja
case, there must be a relation between the punishment and the
offence. An accused cannot be punished for his past offences. In
my
view, a term of imprisonment is unavoidable but the period should be
much less than three years because it is disproportionate
to the
nature of the offence. Secondly, when the appellant committed the
present offence the period of suspension of the sentence
previously
imposed had not yet expired. The magistrate did not make a reference
to this fact when he sentenced the appellant to
three years'
imprisonment.
[9]
A court which has to impose a sentence in any criminal case has to
consider the possibility or probability in terms of
section 280(2)
of
the
Criminal Procedure Act of a
suspended sentence being put into
operation (see
S
v Brevtenbach
1988(4) SA 286 (C)). In this case the magistrate did not refer to the
fact that there was a possibility that an unexpired suspended
sentence might be put into operation and had he taken that fact into
account he might have come to a different concEusion with
regard to
the sentence to be imposed. In my view
r
the
magistrate misdirected himself in not taking this fact into account.
Taking ail these factors into consideration, I would impose
a
sentence of 24 months' imprisonment.
[10]
In the result the appeal against sentence succeeds. The sentence is
set aside and is substituted with the following;
"The
accused is sentenced to undergo a period of 24 months' imprisonment.
The sentence is antedated to 31 January 2007".
ZONDI,
J
VAN
REENEN, J
:
I agree. It is so ordered.
VAN
REENEN. J