S v Thomas (216/06) [2006] ZAWCHC 40 (1 September 2006)

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[2006] ZAWCHC 40
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S v Thomas (216/06) [2006] ZAWCHC 40 (1 September 2006)

REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
High
Court Ref No: 0600216
Magistrates'
Court Ref No: 356/05
Case
No 17/2898/05
In
the matter between:
THE
STATE
v
TERENCE
THOMAS
Accused
________________________________________________________________
REVIEW
JUDGMENT DELIVERED 1 SEPTEMBER 2006
________________________________________________________________
Le
Grange AJ:
This matter comes before me by way of
automatic review. The accused pleaded guilty in the Cape Town
Magistrates’ Court to a charge
of theft involving 4 DVDs valued at
R599.00. He was convicted in terms of s 112(1)(
a
) of the
Criminal Procedure Act No 51 of 1977
and sentenced to 12 months”
imprisonment. The said sentence was wholly suspended for a period of
5 years on certain conditions.
As the sentence appeared to be unduly
harsh and inconsistent with the provisions of
section 112(1)(a)
, I
elected to raise my concerns with the magistrate. In response to my
query with regard to
section 112(1)(a)
the magistrate replied as
follows:
“
The trial magistrate was at all times aware of the provisions
of the said section and because in my opinion and in my
interpretation
and understanding of
Section 112(1)(a)
Act 51/77 the
section is not mandatory, in that it reads as follows: “In terms
of
Section 112(1)(a)
the magistrate MAY…”
In analysing the section further it is totally against imposition
of any form of direct imprisonment and that is why it is required
by
the said section that evidence should be led before sentence.
In the case of S v Terence Thomas, after leading of evidence by
both the State and accused the only sentence the court had in mind
was imposing a fine expecting the accused to pay it; it transpired
that the accused is unemployed and his uncle was going to pay
on his
behalf; in that instance it was not going to be fair to punish a
third person for the wrongs of the accused, and the accused
was not
going to feel the nature of that sentence as well as accepting
responsibility for his own actions.
Had the court imposed the fine and the accused not able to pay
that was going to be tantamount to imposing direct imprisonment;
which
will be in total contradiction with the provisions of the
section in question.”
In respect of the appropriateness of
the sentence, the magistrate commented as follows:
“
It is my submission further
that its case has to be dealt with according to its own merits, and
therefore in this specific case after
having listened to the evidence
before sentence the court was of the opinion that a form of severe
deterrent had to be canvassed,
thus a term of direct imprisonment
wholly suspended was deem to be just and fair under the circumstances
and not overlooking the
provisions of the said section in question.”
Section 112
deals in express terms
with the situation where a conviction may follow upon a plea of
guilty and the procedure to be followed in
such circumstances. The
section reads as follows:
112 Plea of guilty:
(1) Where an accused at a summary
trial in any court pleads guilty to the offence charged, or to an
offence of which he may be convicted
on the charge and the prosecutor
accepts that plea-
(a) the presiding judge, regional
magistrate or magistrate may, if he or she is of the opinion that the
offence does not merit punishment
of imprisonment or any other form
of detention without the option of a fine or of a fine exceeding the
amount determined by the Minister
from time to time by notice in the
Gazette, convict the accused in respect of the offence to which he or
she has pleaded guilty on
his or her plea of guilty only and-
(i) impose any competent sentence,
other than imprisonment or any other form of detention without the
option of a fine or a fine exceeding
the amount determined by the
Minister from time to time by notice in the Gazette; or
(ii) deal with the accused
otherwise in accordance with law;
(b) the presiding judge, regional
magistrate or magistrate shall, if he or she is of the opinion that
the offence merits punishment
of imprisonment or any other form of
detention without the option of a fine or of a fine exceeding the
amount determined by the Minister
from time to time by notice in the
Gazette, or if requested thereto by the prosecutor, question the
accused with reference to the
alleged facts of the case in order to
ascertain whether he or she admits the allegations in the charge to
which he or she has pleaded
guilty, and may, if satisfied that the
accused is guilty of the offence to which he or she has pleaded
guilty, convict the accused
on his or her plea of guilty of that
offence and impose any competent sentence.
The
language of the sub-section is clear and unambiguous. It must be
given its ordinary grammatical meaning. "May", as an
auxiliary verb, is subservient to the verb "convict" and
serves to indicate the conditions under which such a conviction
is
permissible. Accordingly, on its proper interpretation, the
sub-section authorizes a presiding officer to convict an accused on
his plea of guilty alone only in circumstances where the offence in
question does not merit imprisonment or any other form of detention
without the option of a fine
1
and prohibits, in effect, the imposition of a sentence of
imprisonment that is not coupled to a fine.
The
magistrate's understanding and interpretation of the penal provisions
of
s112(1)(
a
)
is thus clearly wrong. The contention by the magistrate that direct
imprisonment without the option of a fine, which is conditionally
suspended, brings the sentence under the provisions of
s112(1)(
a
)
is a patent misdirection and irregular. The sentence of 12 months’
imprisonment was in the circumstances improperly imposed and
must be
set aside.
Moreover,
even if the sentence imposed had been competent, the magistrate's
approach to sentencing gives rise to some concern. If
one has regard
to the nature of the crime, the sentence is clearly open to attack on
the basis that it is startlingly inappropriate.
The sentence imposed
fails to reflect sufficient weight being attached either to the
accused’s personal circumstances or the interests
of society.
The accused is 31 years of age and a
first offender. He is single, unemployed and has one minor child to
support. He pleaded guilty
and showed remorse for his criminal
conduct. The prosecutor in his address before sentence requested that
the court impose a suspended
fine. The magistrate indicated that she
had considered imposing a fine but was of the opinion that since the
accused would not be
able to pay it, a fine would be tantamount to
direct imprisonment. Why the magistrate did not consider suspending
the fine as suggested
by the prosecutor is unclear, particularly in
light of the mitigating factors recorded by the magistrate.
The magistrate concluded that:
“
Therefore in this specific case after having listened to the
evidence
(my underlining)
before sentence
the court was of the opinion that a form of severe deterrent had to
be canvassed, thus a term of direct imprisonment
wholly suspended was
deem to be just and fair under the circumstances.”
In
over emphasizing the seriousness of the offence and imposing a heavy
sentence, albeit conditionally suspended in the hope that
it would
prevent the accused from further crime, the magistrate adopted an
incorrect approach. Should the accused again be convicted
of an
attempted theft, even of a relatively insignificant item, he could
face the possibility of the suspended sentence of 12 months’
imprisonment being put into operation.
Hogarth in his book on
Sentencing
as a Human Process
- 1971 makes the following remarks:
"There is no decision in the
criminal process that is so complicated and so difficult to make as
that of the sentencing judge.
The accused’s freedom, future, weal
and woe are all in the hands of the presiding officer at sentence
stage. The latter can set
the accused on the downhill road to crime
until he or she becomes an unrehabilitated criminal or can, by the
imposition of a suitable
sentence, which still protects the
community, set the accused on the path to rehabilitation, away from
any criminal career. The sentencing
officer must thus always
carefully consider and reflect on an appropriate sentence, because he
or she is not a robot, he or she must
not impose sentence as one.”
I agree with these sentiments.
Whilst I am mindful of the fact that
punishment is pre-eminently a matter for the discretion of the trial
Court, the degree of emphasis
in this matter upon the offence is, in
my view, sufficiently inappropriate and irregular to warrant
interference on review.
I have further difficulties with this
matter.
The record does not reflect that the
accused's rights before sentence were explained to him, nor does it
reflect any evidence led
by either the accused or the State to which
the magistrate refers in her reasons. The evidence of the accused's
uncle, which the
magistrate mentions in her reasons, was not
recorded. These are serious procedural irregularities, exacerbated by
the fact that
in casu
the court was dealing with an
unrepresented accused whom it intended convicting on a plea alone.
In terms of s 4(1) of the
Magistrates' Court Act 32 of 1944, every court shall be a court of
record. It is therefore obligatory that
a magistrate record all the
proceedings, be it in handwriting, shorthand or mechanically, over
which he or she presides and the failure
to do so is inexcusable.
It will not be in the interests of justice to refer this matter back
to the magistrate to reconsider sentence.
In the result I propose making the following order:
The conviction is confirmed. The sentence is set aside and
substituted with the following:
“A fine of R800,00 or 40 days imprisonment which is wholly
suspended for a period of 3 years on condition that the accused is
not again convicted of theft or attempt thereto committed during the
period of suspension.”
_____________________
A LE GRANGE
Desai J
:
I agree. It is so ordered.
_____________________
S DESAI
1
In terms of Government Gazette 24393 dated 14 February 2003 the fine
may not exceed
R1
5000.00