S v Lesenyeho (1188/2005) [2005] ZAFSHC 108 (6 October 2005)

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[2005] ZAFSHC 108
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S v Lesenyeho (1188/2005) [2005] ZAFSHC 108 (6 October 2005)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case
No.: 1188/2005
In
the case between:
THE STATE
and
ELLIOT
LESENYEHO
_____________________________________________________
CORAM:
H.M. MUSI, J
et
MOLEMELA, AJ
JUDGEMENT:
MOLEMELA, AJ
_____________________________________________________
DELIVERED
ON:
6 OCTOBER 2005
_____________________________________________________
[1] This is an automatic
review in terms of
Section 302(1)(a)
of the
Criminal Procedure Act,
1977
.
[2] The
accused was, pursuant to his plea of guilty, convicted in the
Theunissen Magistrate’s court on a charge of theft of items
of
clothing to the value of R700,00. He was sentenced to 4 (four)
months imprisonment.
[3] It is trite law that
the main purposes of punishment are deterrent, preventive,
reformative and retributive. It is also trite
law that in determining
a suitable sentence for a convicted accused, the following factors
should be taken into account: the nature
and seriousness of the
offence, the interests of the community as well as the accused’s
personal circumstances. In recognition
of the above principles, it
was laid down in the famous judgment of Holmes JA in
S
v RABIE
1975(4)SA855 (A), that "punishment should fit the criminal and
the crime, be fair to society and be blended with a measure of
mercy
according to the circumstances."
[4]
In
casu
,
direct imprisonment was not appropriate due to the following reasons:
the accused readily pleaded guilty, from which it could be
inferred
that he was remorseful about his actions. He is a first offender and
more importantly a youth who was still attending school.
In my view,
he deserved to be given a chance to complete the current school year.
The items that were stolen have all been recovered
and their value
was not that high. Moreover, courts have in the past discouraged
imposition of short-term imprisonment especially
for first offenders.
[5]
It is indeed so that the factors mentioned in paragraph 3 above are
intertwined and that none should be emphasized at the expense
of the
other. It cannot be denied that theft is a serious offence with a
high prevalence and that members of the community ought
to be
protected against its incidence. However, the accused's personal
circumstances also play a role in determining a proper sentence.
Mercy is indeed an element of justice and must never be ignored when
sentence is imposed. I am of the view that in sentencing the
accused,
the learned magistrate did not have sufficient regard to the
mitigating factors presented to him and imposed too harsh a
sentence
under the circumstances. Such a sentence ought to be set aside.
[6] I
therefore make the following order:
[6.1] The
conviction is confirmed.
[6.2] The
sentence is hereby set aside and substituted with the following
sentence: 4 (Four) months’ imprisonment wholly suspended
for 3
(three) years on condition that the accused is not convicted of theft
or any offence involving dishonesty committed during
the period of
suspension.
___________________

M. B. MOLEMELA,
AJ
I
agree.
____________
H.
M. MUSI, J
/em
4