S v Kwenamore (383/2002) [2003] ZASCA 125 (27 November 2003)

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[2003] ZASCA 125
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S v Kwenamore (383/2002) [2003] ZASCA 125; 2004 (1) SACR 385 (SCA) (27 November 2003)

THE
SUPREME COURT OF APPEAL
OF SOUTH
AFRICA
CASE NO:
383/2002
Reportable
In the matter between
CHINA
ANDREW KWENAMORE APPELLANT
and
THE
STATE RESPONDENT
CORAM: SCOTT,
LEWIS JJA and MLAMBO AJA
HEARD:
17
NOVEMBER 2003
DELIVERED: 27
NOVEMBER 2003
Summary:
Cumulative effect of sentences imposed on young offender
excessive; reduced from 22 to 7 years’ imprisonment.
JUDGMENT
LEWIS
JA
[1] The appellant was
charged and convicted on ten counts of housebreaking and theft, and
one count of housebreaking with the intent
to commit a crime unknown
to the State, in a Regional Court. He pleaded guilty on all 11 counts
and was sentenced to two years’
imprisonment on each count. He
appeals now against the effective sentence of 22 years’
imprisonment imposed by the trial court.
An appeal to the High Court,
Pretoria, was unsuccessful. This appeal lies, however, with the leave
of that court.
[2] The basis of the
appeal is that the cumulative effect of the sentence is excessive.
The appellant argues that this is especially
so since he was not yet
18 when the last of the offences charged were committed. It is also
of note that he has no previous convictions.
[3] It is not necessary,
for the purpose of this appeal, to deal in any detail with the
individual offences committed. Suffice it
to say that the appellant
committed the first crime of housebreaking and theft when he was just
16 years old, and that he continued
to commit such offences over a
period of some 16 months. He worked in concert with two other
offenders, and stole goods, including
weapons, to the value of R150
000 over that period (there was some dispute as to the value of the
goods stolen, but nothing turns
on this).
[4] The sentences were
imposed after the report of a probation officer was received by the
court. It emerged from the report that
although the appellant was
impoverished, he had a stable family life, living with his parents
and his siblings. He had committed
the thefts in order to enhance his
lifestyle and compete with his peers. He knew that what he had done
was wrong, but claimed that
he had been influenced to commit the
crimes by friends.
[5] The appellant argues
that his conduct was rash, but asserts that his youth had made him
vulnerable to temptation. He had admitted
guilt and claimed to have
shown remorse; and he was susceptible to rehabilitation, especially
since he has the support of a family.
He does not deny the
seriousness of the crimes he committed, but contends that his youth
is a powerful mitigating factor.
[6] Evidence was led in
aggravation of sentence by the State (one of the complainants
testified about the vandalism in his home perpetrated
by the
appellant and his cohorts). Indeed there can be no question but that
the crimes committed by the appellant are very grave
indeed and
warrant serious punishment. But there is nothing to suggest that a
very lengthy period of imprisonment is justified.
[7] Indeed, 22 years’
imprisonment imposed on a very young man (he was 18 when convicted
and sentenced), even absent considerations
of rehabilitation, is in
my view so excessive that it warrants interference. (See
S v
Koutandos & another
2002 (1) SACR 219
(SCA).) I consider
that an appropriate sentence would be seven years’ imprisonment in
total.
[8] The appeal against
sentence is thus upheld. The order of the trial court that the
appellant is declared unfit to possess a firearm
in terms of s 12(2)
of the Arms and Ammunition Act 75 of 1969 remains in place.
[9] The sentence of the
trial court is set aside and replaced with the following:
‘
The accused is
sentenced to seven years’ imprisonment.’
C H Lewis
Judge of Appeal
Concur:
Scott JA
Mlambo AJA