S v Nkoadipo (CA&R 129\05) [2006] ZANCHC 75 (1 January 2006)

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[2006] ZANCHC 75
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S v Nkoadipo (CA&R 129\05) [2006] ZANCHC 75 (1 January 2006)

Reportable: Yes /
No
Circulate to
Judges: Yes / No
Circulate
to Magistrates: Yes / No
IN THE HIGH
COURT OF SOUTH AFRICA
(Northern Cape
Division)
Case
no: CA&R 129\05
Date delivered:
In
the appeal of
:
ANDRIES
NKOADIPO APPELLANT
versus
THE
STATE RESPONDENT
Coram:
MAJIEDT J et MOLWANTWA AJ
JUDGEMENT ON
APPEAL
MAJIEDT J:
The appellant was
convicted on his plea of guilty on three counts of theft of a motor
vehicle. He appeals with leave of the trial
Court against the
sentence imposed on these three counts, namely six years
imprisonment on each count. The only ground of appeal
is that the
cumulative effect of the sentence (i.e. eighteen years imprisonment
in total) renders the sentence shockingly inappropriate.
On behalf
of the respondent Ms Van Dyk has very properly conceded that this is
indeed the case.
The
facts and circumstances pertaining to the commission of the three
offences, gleaned from the appellant’s plea explanation,
can be
concisely stated as follows:
2.1 On count 1 the
appellant admitted that he and a confederate, one Sebakeng, had
unlawfully and intentionally stolen a Toyota Venture
from its lawful
owner, Mr. Moeti. The said vehicle had been stolen from Mr Moeti’s
premises and the engine was started by Sebakeng
using one of a number
of keys in his possession. The vehicle was taken to a certain Israel
in Taung and thereafter the appellant
received an amount of R3 000.00
as remuneration from a person in Johannesburg. The appellant
admitted that the Toyota Venture’s
value was R40 000.00.
2.2 On
count 2 it was admitted that the appellant had, again with the
assistance of Sebakeng, intentionally and unlawfully stolen
a Ford
Courier from Mr. Molao, its lawful owner. The vehicle was stolen
from Mr. Molao’s premises and the engine was started with
a master
key. It was delivered in Taung to a certain Mokwatsi and the
appellant was again remunerated in the sum of R3 000.00,
this
time by certain people in Kimberley. The value of the Ford Courier
was admitted by the appellant to be R40 000.00.
2.3 With
regard to count 3 the appellant admitted that he had unlawfully and
intentionally stolen a Toyota Hi-Ace from its lawful
possessor, Mr.
Qalinga. The vehicle had been handed to the appellant by the
aforementioned Sebakeng and one Sam Mogotsi. The appellant
had then
taken the vehicle to Taung where he had handed it over to one Tepaku.
The appellant did not receive any remuneration for
this theft. He
admitted that the vehicle was worth R50 000.00.
2.4 The
appellant explained further in his section 112(2) statement that he
had, either on his own or as part of a syndicate, been
involved since
1998 in the theft of motor vehicles. He furnished the names of those
involved with him in the syndicate and undertook
to assist the police
with their investigations in this regard. He expressed regret for
his misdeeds and stated that he had decided
to turn over a new leaf.
2.5 Finally it bears
mention that these offences had been committed between 7 December
2003 and 18 January 2004.
The appellant was 38
years old at the time of the commission of these offences. He was
unmarried, but his girlfriend was pregnant
at the time of
sentencing. He had three self-supporting children as well as a
child, 6 years old, who was at school. The appellant
had attained
standard 7 at school. He has a shocking record of crime – twelve
offences in total, of which nine involves either
crimes of
dishonesty or use of a motor vehicle without the owner’s consent.
It is somewhat surprising that the appellant had
not been warned in
the trial court in the present matter of the provisions contained in
section 286(1) of Act 51 of 1977, relating
to the declaration as a
habitual criminal. Of further importance is the fact that the
appellant had been out on parole at the
time of the commission of
the offences in the present matter. On the last two previous
convictions of theft the appellant had
been sentenced to 4 ½ and 3
½ years’ imprisonment respectively.
The
Regional Magistrate has correctly emphasized the gravity of the
offences and Mr. Janse van Vuuren has conceded same in his Heads
of
Argument on behalf of the appellant.
Both
legal representatives are
ad idem
that
the individual sentences on the three counts are justified, but that
the cumulative effect thereof is shockingly excessive.
I share this
view. The appellant has clearly made a business out of the theft of
motor vehicles (in fact he himself says so in
his plea explanation)
and his offences are undeniably deserving of long term imprisonment.
An effective sentence of 18 years imprisonment
is, however,
disturbingly inappropriate and warrants interference in my view.
Compare in this regard:
S
v Koutandos and another 2002(1) SACR 219 (SCA)
,
where the Supreme Court of Appeal interfered with cumulative
sentences of 15 and 27 years imprisonment imposed on the two
appellants
respectively. Their offences involved motor vehicle
theft and fraud. The Court upheld the appeal and imposed lesser
sentences
on the basis that:
“ …
.when
regard is had to the cumulative effect of the sentences imposed on
both appellants, the result strikes me as so excessive as
to justify
interference by this Court,”
(per
Scott JA at 221 g).
I am
of the view that, utilising the
Koutandos
decision
supra
as a guideline while bearing in mind that every sentence must be
individualised, an effective sentence of 12 years imprisonment
in
the present case would be appropriate. Such a sentence can be
attained by ordering that the sentences imposed run concurrently
to
an extent. In this manner recognition would also be given to the
fact that the appellant has pleaded guilty and has exhibited
genuine
contrition and remorse in his frank disclosure concerning the
modus
operandi
,
his involvement in a motor vehicle theft syndicate and the names of
his criminal associates.
See:
S
v Coales 1995(1) SACR 33 (A)
at
36 d-h.
In the premises I issue
the following order:
A) THE APPEAL AGAINST
SENTENCE SUCCEEDS.
B) THE
FOLLOWING ORDER IS ADDED TO THAT OF THE TRIAL COURT: “
THE
SENTENCE ON COUNT 3 IS TO RUN CONCURRENTLY WITH THAT ON COUNT 2.”
___________
SA MAJIEDT
JUDGE
I
agree:
________________
BC
MOLWANTWA
ACTING
JUDGE
FOR THE
APPELLANT : MR D JANSE VAN VUUREN
FOR
THE RESPONDENT : ADV E VAN DYK
DATE OF
JUDGEMENT
: