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2005
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[2005] ZAFSHC 56
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S v Thahane (690/2005) [2005] ZAFSHC 56 (17 June 2005)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review No. : 690/2005
In
the review between:
THE
STATE
versus
TSHEPO
JACOB THAHANE
_____________________________________________________
CORAM:
WRIGHT
J
et
H.M.
MUSI J
_____________________________________________________
JUDGMENT:
H.M.
MUSI J
_____________________________________________________
DELIVERED
ON:
17
JUNE 2005
_____________________________________________________
[1] This is an automatic
review. Having read the record of the proceedings I ordered that the
accused be released from prison forthwith
and indicated that judgment
will follow. The accused, who is 18 years old, was arraigned before
the magistrateâs court at Ficksburg
on 23 May 2005 on a charge of
housebreaking with intent to steal and theft. He had allegedly
broken into a bottle store and removed
a quantity of liquor valued at
R1 095,00. The accused pleaded guilty to the charge and following
questioning by the court in terms
of section 112 of the Criminal
Procedure Act, he was found guilty as charged. He was sentenced to
18 months imprisonment of which
8 months was suspended for 4 years on
certain conditions.
[2] The conviction is
clearly in order. However, the sentence imposed was, in my view, so
shockingly inappropriate that it warranted
the unusual step of
setting it aside without first seeking the magistrateâs reasons for
it. Granted that the offence of which
the accused has been convicted
is serious and is also generally prevalent in the Free State,
nonetheless there are weighty reasons
in this matter that rendered
direct imprisonment wholly inappropriate.
[3] Firstly, the accused
readily acknowledged his wrong doing and pleaded guilty. This
signifies that he is a good material for rehabilitation,
for
acknowledgement of oneâs guilt is a good foundation for
rehabilitation. The complainant has not sustained any serious damage
in that entry into the premises was obtained without any serious
damage thereto and the bulk of the stolen liquor was recovered.
The
recovery was in large measure thanks to the co-operation that the
accused gave to the police. He led them to the places where
the
liquor had been stored. Most importantly, the accused is a youth who
was still attending school. He informed the court that
he was in
standard 9 and there is nothing on the record to show that this was
not so. It was in the interests not only of the accused
but also of
society as a whole that he should be allowed to further his
education. Direct imprisonment holds the potential not only
of
destroying his chances of becoming a useful member of the community
but would also expose him to negative influences that may
destroy his
future. Finally, the accused is a first offender and I can find no
reason why he should not have been spared direct
imprisonment.
[4] This is a typical
case where a wholly suspended sentence should have been imposed. The
following order is made:
The conviction is
confirmed. The sentence imposed is set aside and substituted with a
sentence of 18 months imprisonment which is
wholly suspended for 4
years on condition that the accused is not convicted of housebreaking
with intent to steal and theft, or theft,
committed during the period
of suspension.
___________
H.M. MUSI, J
I concur.
_____________
G.F. WRIGHT, J
/sp