S v Dashe and Another (1231/2006) [2006] ZAFSHC 1 (1 January 2006)

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[2006] ZAFSHC 1
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S v Dashe and Another (1231/2006) [2006] ZAFSHC 1 (1 January 2006)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review No. : 1231/2006
In
the review between:
THE
STATE
versus
KABELO
DASHE
Accused No. 1
MONYADI
SHADRACK MORGEMA
Accused No. 2
_____________________________________________________
CORAM:
H.M.
MUSI J
et
KRUGER J
_____________________________________________________
JUDGMENT
BY:
H.M. MUSI
_____________________________________________________
DELIVERED
ON:
_____________________________________________________
[1] This is a review in
terms of section 302 read with sections 303 and 304 of the Criminal
Procedure Act. The two accused are youths
of 17 and 18 years
respectively. They were charged with robbery in the magistrate’s
court at Botshabelo. They both pleaded guilty
to the charge and
pursuant to questioning in terms of section 112(1) of the Criminal
Procedure Act, they were duly convicted as charged.
They were each
sentenced to three years imprisonment.
[2] When the matter first
came before me on 30 October 2006 I requested to be provided with the
reasons for the sentences and referred
in particular to the
pre-sentencing report that had been placed before the magistrate’s
court. The magistrate has now furnished
his reasons, which run into
six pages.
[3] For his reasons that
the sentences imposed are appropriate, the magistrate cites the
seriousness of the offence and points to
the high preference of
violent crimes and in particular robbery in his area, Botshabelo. He
points out that the community needs
to be protected against the
scourge of violent crime. He expresses his awareness of authority
regarding the position of youth in
our legal system but then cites
the following passage from
S v MAFALADISO EN ANDERE
2003 (1) SACR 583
(SCA) at 596 g:
“
When
persons of their ages commit crimes of this nature they must expect
to be treated as adults.”
For his decision not to
follow the recommendations of the probation officer the magistrate
refers to
S v P
2001 (1) SACR 70
(CPD) where it is
stated that:
“
A
presiding officer should not slavishly follow the recommendations of
probation officers”.
[4] Now the magistrate
cannot be doubted when he says that he had seriously pondered the
various sentencing options and took into
account the triad of
sentence in imposing the sentences. Nor can the sentiments he
expresses about the unacceptably high incidents
of violent crimes,
especially in Botshabelo, and the need to counter it with stiff
sentences be questioned. However, he seems to
have overlooked the
fact that sentence is determined lastly by the peculiar circumstances
of each case, which include not only the
personal circumstances of
the accused and the gravity of the offence but also the circumstances
surrounding commission of the offence
as well as the manner of its
execution.
[5] In this case the
complainant sustained no injuries during the robbery and the value of
the stolen property is small (R200,00).
The accused not only pleaded
guilty to the charge but showed remorse as is set out in the reports
of the probation officer. They
were both juveniles at the time of
the offence and first offenders. The probation officer’s report
show that they have stable
family backgrounds, relate well not only
to members of their families but also generally to other people.
There is nothing to suggest
that they were the type that needed to be
removed from society. On the contrary, direct imprisonment is most
likely to do them more
harm than good, especially given their ages.
[6] In my view, this was
an appropriate case where the recommendations of the probation
officer should have weighed more heavily with
the court. Whereas the
sentences imposed may be fair to society, they do not, in my view,
fit the crime as well as the criminal.
I consider that each of the
accused deserves to be given a change and a wholly suspended sentence
would better serve the interest
of society as well as being a
sufficient deterrent.
[7] In
the premises, the following order is made:
The
sentences imposed on the accused are set aside and replaced with the
following:
Each accused is
sentenced to three years imprisonment which is wholly suspended for
five years on condition that the accused is not
found guilty of
robbery or any offence involving use of violence committed during the
period of suspension.
___________
H.M. MUSI, J
I concur.
__________
KRUGER,
J
/sp