S v Belebese (766/2005) [2005] ZAFSHC 92 (8 August 2005)

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[2005] ZAFSHC 92
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S v Belebese (766/2005) [2005] ZAFSHC 92 (8 August 2005)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review No. : 766/2005
In
the case between:
THE
STATE
versus
TSHILISO
TATELLO BELEBESE
_____________________________________________________
CORAM:
HANCKE
J
et
C.J. MUSI J
JUDGMENT:
C.J.
MUSI J
DELIVERED ON:
8
AUGUSTUS 2005
[1] This matter came
before me by way of automatic review in terms of section 302(1)(a)(i)
read with
section 304
of the
Criminal Procedure Act, 51 of 1977
.
[2] The
accused was convicted – after a plea of guilty – of housebreaking
with the intent to steal and theft. He was sentenced
to 12 months
imprisonment.
[3] I
was of the view that the proceedings were not in accordance with
justice and requested the magistrate to furnish me with reasons
for
the sentence. The magistrate has supplied me with reasons. After
considering the magistrates reasons I am still of the view
that these
proceedings were not in accordance with justice.
[4] The accused was 16
years old when the offence was committed. He left school in Standard
2. The magistrate requested a probation
officer’s report. From
the report it is clear that this accused’s background is pitiful.
He is an orphan. His elder brother’s
whereabouts are unknown. He
lives with his grandmother who receives an old age pension from the
state. His uncle receives a disability
grant. A family of seven
have to survive on the old age pension and the disability grant
because no one in the family is employed.
The family lives in a
three-roomed corrugated iron shack which the social worker describes
as “not conducive for the upbringing
of children.”
[5] The
accused pleaded guilty and informed the court that he and someone
else entered the premises through a window and stole a bicycle
and
two motorvehicle wheels to the value of R5 530,00.
[6] The magistrate
correctly states that housebreaking with the intent to steal and
theft is a serious offence. The magistrate however
misdirect himself
in firstly finding that: “counselling was attempted to no (avail).
An attempt to take care of the accused while
attempts were made to
establish a home for orphans, accused simply showed no interest and
absconded and went to commit crime.”
In the context of the social
workers report it is not clear when the accused stayed with Pastor
Graige or under what circumstances
he ran away. Neither is there
evidence that he “went to commit crime again”. Secondly, the
state did not prove previous convictions
against the accused. He was
therefore a first offender. The social worker in her report stated
that the accused is “
said
to be a sixth offender.” (my underlining). It is not clear form
the report where the social worker got her information from.
The
magistrate was clearly and wrongly influenced by this, because the
magistrate concludes that “Although the state did (no) prove
(the)
previous convictions the accused have ….”
[7] This
accused is clearly a member of the so called lost generation. He is
a victim of his socio economic circumstances. The magistrate’s
view that the accused circumstances are such that prospects of him
being rehabilitated outside prison are non-existent is devoid
of all
contexts. The magistrate should not have taken into consideration
the social worker’s evidence, which was in any event
based on
hearsay, that the accused have six previous convictions.
[8] In
my view a sentence of 12 months imprisonment for a 17 year old child
with no previous convictions is shockingly inappropriate
even for an
offence such as the present. I have considered sending this matter
back to the magistrate to reconsider sentencing in
the light of what
I said above but decided against it because the accused has already
been exposed to prison life and he will be
prejudiced by such an
order. A totally suspended sentence would be appropriate in this
matter.
[9] In
the circumstances the following order is made:
a) The conviction is
confirmed.
b) The
sentence of 12 months imprisonment is set aside and replaced by the
following sentence:
12
months imprisonment which is suspended for 5 years on condition that
the accused is not convicted of housebreaking with the intent
to
steal and theft committed during the period of suspension.
____________
C.J. MUSI, J
I
agree.
________________
S.P.B.
HANCKE, J
/em