S v Bocheli (619/2004) [2004] ZAFSHC 134 (1 July 2004)

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[2004] ZAFSHC 134
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S v Bocheli (619/2004) [2004] ZAFSHC 134 (1 July 2004)

IN THE HIGH
COURT OF SOUTH AFRICA
(ORANGE FREE STATE PROVINCIAL DIVISION)
Review
No.: 619/2004
In
the review between:
THE STATE
and
MPHO BOCHELI
___________________________________________________________
CORAM:
MALHERBE
JP
___________________________________________________________
DELIVERED ON:
1
JULY 2004
___________________________________________________________
The accused in this case is a 20-year old first offender
who was arraigned in the Magistrate’s Court at Odendaalsrus on 4
counts
of housebreaking with intent to steal and theft. He conducted
his own defence and pleaded guilty on all 4 counts. He was duly
convicted
as charged. Counts 1 and 2 were taken together for
purposes of sentence and 3 years’ imprisonment was imposed. The
same was done
in respect of counts 3 and 4. The result is an
effective sentence of 6 years’ imprisonment. When the case was
placed before my
brother Rampai on review, he requested the
Magistrate to furnish reasons for sentence. This has now been done.
I quote paragraph
2-5 of those reasons:
“2. The sentence will send a clear and unambiguous message to
person(s) of accused’s age that crime does not pay. These
offence(s)
are mostly committed by person(s) of accused’s age, is
serious and prevalent in our district.
3. The sentence will prevent accused from making crime a hobby. The
dates on which he committed these offences shows that he was
on a
housebreaking spree and made it a hobby, if not a sport.
In respect of count 2 and 4, the complainant is same person. The
complainant left the key of the home at accused’s place. This
is
according to accused’s plea explanation. The complainant trusted
accused’s family which include accused. Accused breached
the
position of trust complainant had on his family. Accused disgraced
his family. He deserve effective sentence of 6 (six) years.
4. The sentence will restore and maintain the faith of complainant
and member of society to criminal justice system and courts. The
sentence will debars the victims from deciding to take law into their
own hands.
5. The offences, in most instances, are justiciable (sic) in Regional
Court wherein possibility exist that accused could have been
meted
with term of imprisonment exceeding six years on four counts of
housebreaking with intent to steal and theft.
In S v Olivier en Andere
1996 (2) SACR 387
(NC), the Regional Court
imposed a sentence of effective ten years on three counts of
housebreaking with intent to steal and theft.
On appeal, the
sentence was reduced to effective five years imprisonment.
I did consider other options of sentences available but found that
effective sentence of 6 (six) years is the only suitable sentence
in
the circumstances. I was very merciful and lenient to the accused.”
It appears from the record that the offences were
committed on 26 January, 3 March, 19 March and 20 March 2004
respectively. On counts
1 and 3 the accused opened the unlocked
doors of the dwellings in question and on counts 2 and 4 he gained
entrance to the same house
by using a key that the complainant had
left in his custody. All the stolen goods were recovered and
presumably returned to the
rightful owners. The stolen goods were
household goods and according to the accused he intended to use some
of the clothes that
he stole but wanted to sell the more valuable
goods …
“I wanted to use the money to go to school in Gauteng. My parent
is unemployed and did not have money to pay at Wits Technikon.”
There is nothing on record to gainsay this.
The
OLIVIER
-decision
upon which the Magistrate relies, is readily distinguishable from the
facts of the present case. The 3 appellants in that
case were 33, 34
and 42 years old respectively. They were convicted on 3 counts of
housebreaking with intent to steal and theft
which are described as
follows in the judgment:
“Die omstandighede waaronder die misdade gepleeg is, is soos volg:
‘n Sekere mnr Visagie, ‘n wewenaar, is die eienaar van
die plaas
Witteboom in die Prieskadistrik. Op 23 September 1993 is hy
Citrusdal toe en het sy huis op die plaas onbeset verlaat.
Toe hy
teruggekeer het as gevolg van ‘n berig wat hy gekry het, het hy
gevind dat daar by sy huis ingebreek was en ‘n aantal
goedere
vermis was. Die totale waarde van die goedere wat gesteel was, is
ongeveer
R40 000.
Die inbrekers het ook probeer om die bankkluis en geweerkluis wat
daar was oop te sny, met die klaer se sweistoestel. As
gevolg van ‘n
verkeerde koppeling was die ligtestelsel van die gebou beskadig, die
matte was swart gebrand en volgens die klaer
was sy hele huis
‘pikswart van die rook’. Bo en behalwe voormelde was al die
kaste se goed uitgegooi en die huis was in ‘n
chaotiese toestand
gelaat.
Buite die huis in die werf was ‘n waenhuis waarin die klaer sy
Isuzu bakkie geparkeer het. Daar was ook ‘n stoor waarin ‘n
Ford
Cortina bakkie was. Beide die waenhuis en die stoor is oopgebreek,
die voertuie se sleutels is in die kantoor gekry en die
twee voertuie
is ook gesteel. Die voertuie is eintlik deur die beskuldigdes
gebruik om die gesteelde goedere te verwyder. Die waarde
van die
Isuzu bakkie is
R54 000.
Toe dit teruggekry is, was daar R900 se skade daaraan. Die
versekeringsmaatskappy het ‘n bybetaling van R500 vereis.
Die Ford
Cortina bakkie se waarde was R15 000. Dit was nie verseker nie en
was waardeloos toe dit teruggekry is.
Wat die huis betref, het die assuransie R2 400 uitbetaal vir skade
aan die gebou. Sekere teruggevonde goedere is aan die klaer
teruggegee
en vir die verlies aan die inhoud van die huis het die
assuransie R48 500 uitbetaal. Die klaer moes self ook klaarblyklik
uit sy
eie sak sekere skades herstel.”
In
my view the accused’s youth in the present matter and the fact that
he is a first offender should have been accorded more weight
than the
Magistrate appears to have done. His plea of guilty is an indication
of remorse and the reason why he stole,
viz
.
to pay for his studies, cannot be rejected. Although I agree that
imprisonment should be imposed, I think that the total period
is
disturbingly long. Furthermore, this is a case where suspension of
part of the sentence can only have a salutary effect on the
young
accused.
There
is no good reason why counts 1 and 2 were taken together and also
counts 3 and 4. Each of the offences was a separate offence
and for
that matter any 2 of the counts could have been taken together for
purposes of sentence. I propose to take all 4 of them
together.
In
the result the conviction is confirmed. The sentences imposed are
set aside and replaced by the following:
“
The 4 counts are taken together for purposes of
sentence. Accused is sentenced to 5 years’ imprisonment of which 2
years are suspended
for 3 years on condition that the accused is not
convicted of housebreaking with intent to steal and theft, committed
during the
period of suspension.”
___________________
J.P. MALHERBE, JP
/scd