S v Morale (A27/03) [2005] ZAFSHC 3 (17 February 2005)

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[2005] ZAFSHC 3
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S v Morale (A27/03) [2005] ZAFSHC 3 (17 February 2005)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
APPEAL NO. 27/2003
In the appeal between:
MATTHEWS
MORALE
Appellant
and
THE
STATE
Respondent
______________________________________________________________
CORAM:
VAN DER
MERWE J
et
VAN ZYL, AJ
______________________________________________________________
HEARD ON
:
7
FEBRUARY 2005
______________________________________________________________
JUDGMENT BY:
VAN
ZYL, AJ
______________________________________________________________
DELIVERED ON:
17
FEBRUARY 2005
______________________________________________________________
[1] The appellant was
charged in the Regional Court, Sasolburg, with two counts of
housebreaking with the intent to steal and theft.
With regard to the
first defence, it was alleged that on or about
15 to 17 February
2003
, the appellant unlawfully and with the intent to steal,
broke open and entered the building of JJV Engineering at Sasolburg,
and
that he stole one overall and one pair of shoes to the total
value of
R600.00
. With regard to the second offence, it was
alleged that the appellant unlawfully and with the intent to steal,
broke open and entered
the same premises on or about
21 February
2003
, and then stole shoes to the value of
R300.00
and
clothes to the value of
R350.00
.
[2] The appellant enjoyed
legal representation in the Court
a quo
and
pleaded guilty to both charges. A written statement in terms of
Section 112(2)
of the
Criminal Procedure Act, 51 of 1977
, duly signed
by the appellant, was submitted to the Court
a quo
as exhibit
A, in which statement the appellant freely and voluntarily admitted
all the elements of the respective charges against
him. The
appellant was subsequently convicted on both charges and then
sentenced in terms of
Section 286
of the
Criminal Procedure Act, in
that he was declared an habitual criminal. The appellant was
furthermore declared unfit to possess a firearm.
[3] The appeal is
directed against both the conviction and the sentence.
[4] The appellant also
lodged an application for condonation for the late filing of the
appeal. It is evident from the record that
the appellant was
sentenced on
22 April 2003
, where after he filed his appeal on
20 May 2003
. In terms of Magistrate’s Court
rule 67
, the
appellant should have filed his appeal within
fifteen (15) days
from the date on which the sentence was imposed. The present appeal
was therefore filed 3 days out of time. The appellant duly
filed an
affidavit in support of his application for condonation in which he
set out a reasonable explanation for the said delay.
Considering
the short period of delay, the reasonable explanation for the delay
and the appellant’s good chances of success with
the appeal, I am
satisfied that the appellant met the requirements for an application
for condonation and the requested condonation
is therefore granted.
[5] Although the appeal
is also directed against the conviction of the appellant, Mr
Pretorius, who appeared on behalf of the appellant
in the appeal
hearing, conceded that he can make no valid submissions in support of
the said appeal. This concession was, in my
view, correctly made.
It is evident from the statement made by the appellant in terms of
Section 112(2)
of the
Criminal Procedure Act, that
the appellant did
admit all the elements of the respective offences. I am therefore
satisfied that the appellant made the necessary
admissions for a
proper conviction on the two charges of housebreaking with the intent
to steal and theft. The appeal against the
conviction can therefore
not succeed.
[6] When considering the
appeal against the imposed sentence, I am mindful of the fact that a
Court of appeal has only a restricted
and limited right to interfere
with the sentence imposed by the Court
a quo
. In this regard
Rumpff JA stated as follows in
S v ANDERSON
1964 (3) SA 494
(A)
at 495 G - H
:
“
The decisions clearly
indicate that a Court of appeal will not alter a determination
arrived at by the exercise of a discretionary
power merely because it
would have exercised that discretion differently. There must be more
than that. The Court of appeal, after
careful consideration of all
the relevant circumstances as to the nature of the offence committed
and the person of the accused,
will determine what it thinks the
proper sentence ought to be, and if the difference between that
sentence and the sentence actually
imposed is so great that the
inference can be made that the trial court acted unreasonably, and
therefore improperly, the Court of
appeal will alter the sentence.”
[7] In terms of
Section
286
of the
Criminal Procedure Act, a
convicted person may be declared
an habitual criminal by a Court
“if it is satisfied that the
said person habitually commits offences and that the community should
be protected against him.”
The word
“satisfied”
has been interpreted as to mean that the Court has to be convinced of
these facts. (See
S v MAKOULA
1978 (4) SA 763
(SWA)
).
[8] A rule of practice
developed in our law according to which an offender should be warned
that he may be declared an habitual criminal
if he offends again.
However, the warning is not an absolute requirement and an offender
may be declared to be an habitual criminal
even if no warning has
been given. However, a Court will in such an instance be even more
careful than usual before imposing this
sentence. Nienaber J set
out these principles as follows in
S v SHABALALA
1984 (2) SA
234
(NPA)
at 237 A - C:
“
Wat vermoedelik
daarmee bedoel word, is dat ‘n verhoorhof ‘n beskuldigde meer
geredelik tot gewoontemisdadiger sal verklaar as
die waarskuwing wel
gegee is, as wanneer die waarskuwing ontbreek; maar dat die vonnis,
by ontstentenis van so ‘n waarskuwing,
nie sonder meer op appèl
ongedaan gemaak sal word nie.
Die afwesigheid van ‘n
waarskuwing kan tog negatiewe werking hê, al is dit dan ook op ‘n
ander vlak: of die waarskuwing gegee
is, al dan nie, bly ‘n
relevante faktor wat die verhoorhof in ag moet neem wanneer hy sy
diskresie of die beskuldigde tot gewoontemisdadiger
verklaar moet
word of nie, moet uitoefen. Dit blyk uit die pertinente opmerkings
van die Appèlhof in
R v EDWARDS
1953 (3) SA 168
(A)
waar daar, te 170A, verklaar is:
‘The absence of these
two factors’
(nl die gewraakte
waarskuwing en ‘n ander faktor wat nie nou tersake is nie)
‘
is
material in considering whether the indeterminate sentence should
have been imposed.’
”
[9] It is furthermore so
that the list of previous convictions of an accused is an important
factor when considering the appropriateness
of the said sentence.
In this regard the Court has a duty to enquire into the circumstances
under which the previous convictions
were committed. In
S v
SHABALALA
,
supra
,
at
237 G - 238 A, it was stated that:
“
Na my mening het die
verhoorhof oorhaastig opgetree deur sonder verdere ondersoek tot die
gevolgtrekking te kom dat die appellante,
‘uit gewoonte’
die gewraakte misdrywe gepleeg het. Veral is dit die geval by die
tweede appellant wat slegs een reeks vorige veroordelinge het
en wat
vir ‘n tydperk van bykans agtien maande op vrye voet was alvorens
hy die nuwe misdade gepleeg het wat tot sy huidige skuldigbevinding
gelei het ... ‘n Ondersoek na die aard en omstandighede van daardie
reeks misdrywe sou nie onvanpas gewees het alvorens die verhoorhof
die appellante tot gewoontemisdadigers verklaar het nie. Nòg wat
aard, nòg wat frekwensie betref vertoon die eerste appellant
se
vorige veroordelings die eweredige patroon wat op misdaad uit
gewoonte dui.”
In fact, in
S v
MASISI
1996 (1) SACR 147
(0)
,
Lombard J
held
that it is desirable to hold an investigation into the nature and
circumstances of the previous convictions of an accused who
had not
previously been warned in advance of the provisions of
Section 286
of
the
Criminal Procedure Act. The
failure of the trial court under the
circumstances to so examine the nature and circumstances of previous
convictions of the accused
who was not previously warned, amounted to
an improper exercise of its discretion and the Court of appeal
therefore interfered with
the imposed sentence.
[10] It should also be
noted that a further relevant consideration is that there should not
be a long lapse of time between the present
offence and the previous
offences. This principle was stated in
S v MAKOULA
,
supra,
at 767 H - 768 A as follows:
“
As die lang
tydsverloop tussen die vroeëre en huidige diefstalle in ag geneem
word, is daar ook geen regverdiging vir die streeklanddros
se
stelling dat appellant volhard het in die pleging van misdrywe tot so
‘n mate dat die diefstal van R15 se damesskoene hom ‘n
gevaar vir
die samelewing maak en die gemeenskap teen hom beskerm behoort te
word deur die oplegging van die vonnis as gewoontemisdadiger
nie.”
[11] In the present
appeal it appears that the decision of the Court
a quo
to
declare the appellant an habitual criminal was mainly based on the
list of previous convictions of the appellant. It is therefore
necessary to consider them in more detail:
Between the years
1982
and
1992
, the appellant was convicted and sentenced as
follows:
22 March 1982, dagga
related offence, sentenced to R20.00 or 20 days imprisonment.
2
5 September 1984,
dagga related offence, sentenced to 6 months imprisonment.
27 August 1985, two
counts of theft, sentenced to R180.00 or 180 days imprisonment on
each of the two charges.
28 September 1989,
theft, sentenced to 18 months imprisonment.
2 October 1990, theft,
sentence to R500.00 or 3 months imprisonment.
18 April 1991, one
count of attempted housebreaking, sentenced to 15 months
imprisonment, which was wholly suspended on certain
conditions for
3 years;
and,
two counts of
housebreaking with the intent to steal and theft,
sentenced to 24 months imprisonment
on each of the
charges.
18 August 1992,
housebreaking with the intent to steal and theft, sentenced to 5
years imprisonment, of which 2 years were to
run concurrent with
the previous sentence imposed.
17 November 1992,
attempt to escape from prison, sentenced to 12 months imprisonment,
of which 8 months were conditionally suspended
for 4 years.
After the last mentioned
conviction, there were no further convictions of the appellant until
5 May 1997
, on which date and subsequent to which date the
appellant was convicted as follows:
5 May 1997, malicious
damage to property, sentenced to R900.00 or 90 days imprisonment,
which was wholly suspended on certain
conditions for 3 years.
30 December 1998,
theft, sentenced to R900.00 or 90 days imprisonment.
2 August 2001, theft,
sentenced to R200.00 or 3 months imprisonment, which was wholly
suspended on certain conditions for 5 years.
[12] When evaluating
these previous convictions, it appears to me that neither their
nature, nor their frequency constitutes a constant
pattern that can
be considered to be indicative of a habit to commit crime. Although
the appellant was relatively frequently convicted
during the period
between
1982 and 1992
, there was a
“clean period”
between
1992
and
1997
, during which he was not
convicted. Even should it be accepted that the appellant probably
spent some of this time in prison,
the further relevant factor
remains that since the conviction in
May 1997
until the
present conviction in
April 2003
, the appellant was convicted
on only three charges. On face value of the imposed sentences,
which were all fines as an alternative
to imprisonment, these three
offences could not have been serious offences. However, referring
to these last three previous convictions,
the Court
a quo
remarked that the appellant’s record was probably not available
when those sentences were imposed. This remark was apparently
made
by the Court
a quo
in an effort to substantiate a conclusion
that those offences were in fact serious in nature, despite the
light sentences imposed.
There is, however, no basis upon which
the Court
a quo
could have reached this conclusion. It may
just as well have been a case of those three offences in fact not
having been of a
serious nature. In my opinion this view of the
Court
a quo
regarding the seriousness of the said three
offences, without having held a proper investigation into the nature
and circumstances
of the relevant previous convictions, constitutes
a misdirection, which had the result that the Court
a quo
in
imposing the relevant sentence, did not exercise its discretion
properly and reasonably.
[13] In addition hereto,
it should also be noted that it is evident from the record that the
appellant was not previously warned
that a declaration may follow.
Although the Court
a quo
referred to the rule of practice
that an accused should preferably receive a warning prior to him
being declared an habitual criminal,
as well as the applicable
principles in circumstances where no such warning was in fact given,
it is clear from the record that
the Court
a quo
in fact
failed to apply those principles when it exercised its discretion
regarding an appropriate sentence. The Court
a quo
failed to
make a careful enquiry and investigation into the nature and
circumstances of the appellant’s previous convictions.
Had it done
so, one would have expected that it would also have referred to the
lapse of time between the present offence and the
previous offences
as one of the relevant factors which it considered when exercising
its discretion. However, the Court
a quo
made no reference
to this very important factor, which factor is, in my view,
strongly indicative of the absence of a habit to
commit crime.
[14] For these reasons I
am of the view that the Court
a quo
misdirected itself in
finding that it was satisfied that the appellant habitually commits
offences and that the community should
be protected against him.
The imposed sentence can therefore not stand and should be set
aside.
[15] Irrespective of
what the nature and circumstances of the appellant’s previous
convictions are, I am of the view that in this
particular instance
it would in any event not be an appropriate sentence to declare the
appellant to an habitual offender. Therefore
I deem it unnecessary
to refer this matter back to the regional court for purposes of
considering an appropriate sentence. I in
fact consider it in the
interest of justice that the matter be finalised on appeal.
[16] In considering an
appropriate sentence, I take into consideration as an aggravating
factor the fact that the two offences on
which the accused was
convicted, are of a serious nature, although the value of the stolen
items are not that high. This type
of offence is very prevalent
within the jurisdiction area of this Court and therefore the
seriousness of the offence should also
be reflected in an
appropriate sentence. The previous convictions of the appellant,
especially the last three convictions, also
constitute a further
aggravating factor which needs to be considered when imposing an
appropriate sentence.
[17] With regard to the
appellant’s personal circumstances, I take into consideration that
at the time when the appellant was
convicted, he was 42 years of
age, not married, but with two children of 13 and 6 years old
respectively. He was employed at
the time of his conviction and
earned
R1 000.00
per month.
[18] In the
circumstances of this case, I also consider it appropriate that the
appellant should now be warned that a declaration
to an habitual
criminal may follow in the future. I further consider it
appropriate that the order made by the Court
a quo
to the
effect that the appellant be declared unfit to possess a firearm,
should remain effective.
[19] In the premises the
following orders are made:
1. The appeal against
the convictions is dismissed and both the convictions are confirmed.
The appeal against the
sentence is upheld.
The sentence is set
aside and replaced by a sentence of three (3) years imprisonment on
each of the two charges, which sentence
should be considered to
have been imposed on
22 April 2003
.
4. The appellant is
warned that should he again be convicted, he may be declared an
habitual criminal in terms of
Section 286
of the
Criminal Procedure
Act, 51 of 1977
.
________________
C VAN ZYL, AJ
I CONCUR:
_______________________
C H G VAN DER MERWE,
J
On
behalf of appellant:
Mr K Pretorius
Bloemfontein
Legal Centre
On
behalf of respondent:
Adv
H Amod
Director:
Public Prosecutions