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1994
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[1994] ZASCA 140
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S v Coales (228/94) [1994] ZASCA 140; [1995] 1 All SA 467 (A) (29 September 1994)
Case no: 228/94
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
ADAM COALES
Appellant
and
THE STATE
Respondent
Coram:
E M GROSSKOPF, KUMLEBEN et
F H GROSSKOPF JJA
Heard:
20 September 1994
Delivered:
29
September 1994
2
J U D G M E N T F H GROSSKOPF JA:
The appellant was convicted in
the regional court, Cape Town, after pleading guilty to one count of
housebreaking with intent to steal
(count 1), eight counts of housebreaking with
intent to steal and theft (counts 2 to 7 and 9 to 10), and one count of theft of
a
motor vehicle (count 8). He was sentenced to nine months imprisonment in
respect of each of the nine housebreaking counts, and to
three years
imprisonment on count 8 for the theft of the motor vehicle. The cumulative
sentence on all ten counts amounted to nine
years and nine months imprisonment.
The trail court ordered that in the event of a suspended sentence of 40 months
imprisonment imposed
in 1990 being put into operation, two of the three years
imposed in respect of count 8 were to run concurrently with the suspended
term
of imprisonment. The suspended sentence was in fact brought into operation, with
the result that the effective sentence in respect
of the present convictions
amounted
3
to seven years and nine months imprisonment.
The appellant's appeal
against his sentence was dismissed by the Cape Provincial Division. Leave to
appeal to this court was granted
on petition to the Chief Justice.
The appellant's wife was charged as accused no 2 in the regional court. She
also pleaded guilty and was convicted of the same offences
as the appellant. In
her case the magistrate took all the counts together for the purpose of sentence
and imposed a sentence of three
years imprisonment which was conditionally
suspended for five years.
Before dealing with the salient facts and the mitigating factors on which the
appellant seeks to rely, I have to refer to an important
aggravating feature, ie
the appellant's criminal record. He has two previous convictions for
housebreaking with intent to steal and
theft, and one for theft. He was first
convicted in 1984 for housebreaking with intent to steal and theft of car radios
and tools
to the value of R7 500 from a service station. He was sentenced to
three years imprisonment
4
conditionally suspended for five years. In 1989 the appellant was convicted
of theft of a television set valued at R450 and sentenced
to a fine of R400 or
four months imprisonment. In June 1990 he was again convicted of housebreaking
with intent to steal and theft.
On this occasion he stole tools to the value of
Rl 000 from a flat, and was sentenced to 40 months imprisonment which was
conditionally
suspended for five years. The present crimes were committed less
then two years later. One notes that prior to the present convictions
he never
served any period of imprisonment.
The crimes were committed over a period of about three months from
approximately 14 February to 10 May 1992. The appellant was then
28 years old
and his wife 30. They had been married for six years. She was pregnant at the
time and has since given birth to a baby.
It is common cause that they forcibly
broke into a number of business premises in and around Cape Town. They stole
cash, a radio
with tape deck, a radio and casette player with speakers, two
electric kettles, an
5
electric drill, a bottle of brandy, a bottle of wine, a bottle of champagne,
and groceries such as coffee, tea and sugar. The total
value of the stolen
goods, with the exception of the motor vehicle, amounted to less than R3
000.
Counsel for the appellant conceded that housebreaking with intent to steal is
a serious crime, but submitted that the trial court
overemphasised the
seriousness of the offences in the particular circumstances of this case. He
sought to draw a distinction between
breaking into a private dwelling, where the
sanctity of a person's home is violated, and breaking into business premises. I
do not
think in this case the distinction is a significant one. Each case must
depend on its own facts and be considered in the light of
its own particular
circumstances. The fact remains that in the present case each housebreaking,
with the exception of count 10, involved
an actual breaking causing damage.
Either a door or burglar proofing had to be forced upon, or a window had to be
cut or broken for
the appellant to gain entry.
6
It was further submitted that the appellant really committed a series of
petty thefts, and that he could have stolen more on most
if not on every
occasion. It is true that the total amount involved in these thefts was not
large, but the fact that the appellant
did not steal more can hardly be regarded
as mitigatory. Had he taken more it may well have been an aggravating
feature.
The undisputed evidence was that the appellant and his wife were destitute at
the time. They were both unemployed; he could not find
any employment, while she
was in an advanced state of pregnancy. They stayed in a shack in Salt River at
the back of a garden. The
appellant is a British subject whose parents had
returned to England two years previously, and he had no family in South Africa
to
whom he could turn for help. The appellant went to see the welfare
authorities twice, but got no assistance from them.
Counsel submitted that the appellant committed the crimes out of sheer
desperation and necessity, and in order to supply them with
7
food. I shall assume in the appellant's favour that the items other than
edibles and cash were stolen in order to be converted into
cash. While the
appellant's dire need may have prompted the series of thefts which were coupled
with the housebreakings, it can certainly
not account for the theft of the motor
vehicle. The appellant told the trial court that he stole the Datsun light
delivery van in
Claremont late one night when it started to rain. He and his
wife used it for transport to get to their home in Salt River. Once
there he
abandoned the vehicle. It appears, therefore, that the appellant did not intend
to deprive the owner permanently of the
use of his vehicle. The appellant,
however, failed to explain why they could not have made use of public transport
to get to Salt
River. The Datsun, which was valued at R5 000, was unfortunately
never recovered by the police. Moreover, if the appellant resorted
to theft only
when driven by need, as he maintained, why was it necessary for him to commit
three burglaries in quick succession
between 27 and 31 March 1992?
8
It was submitted that the trial court misdirected itself by not taking into
account the fact that the appellant and his wife had stolen
to subsist. The
desperate plight in which this couple found themselves is certainly a factor
which ought to be taken into account.
The magistrate specifically referred to
these circumstances in his reasons for sentence and said that he would take them
into account.
There is no reason to suggest that he did not do so. There was
accordingly no misdirection. It should also be borne in mind, as was
pointed out
by the court a quo, that there are unfortunately many indigent people in our
country who live under similar or even worse
conditions, and yet they manage to
remain law-abiding citizens.
Counsel further submitted that the magistrate misdirected himself in failing
to have regard to the fact that the appellant showed
remorse. The magistrate did
take this aspect into account, and it cannot properly be said that he
misdirected himself. The question
is whether he gave sufficient weight to it. In
his reasons for sentence the magistrate
9
made the following observations in this regard:
"It is true as you have indicated that you went to
the police, that you reported the matter to them, because you did not want to go
on the way you did. The court will take that into
account."
What happened was the following. About 10
May 1992 the appellant and his wife broke into the premises of SA Scale (Pty)
Ltd in Salt
River with intent to steal. While they were still inside the
building they were suddenly overcome by remorse. They left the premises
without
taking anything and voluntarily handed themselves over to the police. Thereupon
they confessed to every crime they had committed.
They assisted the police in
their further investigations and pleaded guilty at the trial. By doing so the
appellant clearly demonstrated
that he was truly remorseful. In my judgment his
contrition and remorse were material mitigating factors to which more weight
should
have been given. S
v Seegers
1970(2) SA 506(A) at 511G-H.) The
fact that the appellant had a change of heart and was truly remorseful also
makes him a better
10
candidate for rehabilitation.
I am further of the opinion that the magistrate paid insufficient regard to
the cumulative effect of all the sentences imposed.
R v Abdullah
1956(2)
SA 295(A) at 299G-300A;
S v Whitehead
1970(4) SA 424(A) at 238F-439H;
S v Young
1977(1) SA 602(A) at 610E-H.) In my judgment the aggregate
sentence of almost ten years imprisonment is startlingly inappropriate
in the
particular circumstances of this case. It is true that the magistrate referred
to the cumulative effect of the sentences and
ordered two of the three years
imprisonment imposed for the theft of the motor vehicle to run concurrently with
a suspended term
of imprisonment. The total effective period of almost eight
years imprisonment nevertheless remains unduly harsh in my opinion, also
bearing
in mind that the appellant has to serve the additional 40 months in respect of
the suspended imprisonment.
Having regard to the various considerations I have mentioned above 1 am of
the view that this court should reduce the total
11
effective period of the sentences imposed by the trial court. This can be
done by directing that certain sentences run concurrently
with others.
(
Abdullah's
case,
supra
, at 300 A;
Whitehead's
case,
supra
, at 439G-H.) In the present case the trial court has already
ordered that two years of the sentence on count 8 should run concurrently
with
the 40 months suspended sentence of imprisonment. A further direction that the
sentences on some of the housebreaking counts
run concurrently with the
sentences on other housebreaking counts appears to me to be impractical, and
would in any event not reduce
the effective period of imprisonment
sufficiently.
The cumulative effect of all the sentences imposed can also be curtailed by
reducing the individual sentences (
Young's
case,
supra
, at
611D-G), but any meaningful reduction of the individual sentences in the present
case would in my view lead to inappropriate
sentences.
This court held in
Young's
case,
supra
, at 610E-H, that the
practice of taking closely connected or similar counts together for the
12
purpose of imposing one sentence thereon may be undesirable when adopted by
lower courts, but that the objection does not apply to
this court inasmuch as
any sentence imposed by this court is definitive. In the present case the
appellant was sentenced to a total
period of six years and nine months
imprisonment in respect of the nine counts of housebreaking. The cumulative
effect of all these
sentences could be lessened by taking the nine counts of
housebreaking together for the purpose of sentence, and by reducing the
overall
sentence in respect of those nine counts; but any significant reduction in the
overall sentence would in my opinion again
lead to a sentence which is too
lenient in the particular circumstances of this case.
Another method of reducing the effective period of the sentences is to
suspend portion of the overall sentence. I propose to adopt
this method and to
suspend four years of the total sentence of nine years and nine months
imprisonment.
The appeal against sentence accordingly succeeds. The
13
following order is added to the sentence of the trial court:
"The court further orders that four years of the total sentence of nine years
and nine months imprisonment be suspended for five
years on condition that
accused no 1 is not again convicted of theft or housebreaking with intent to
commit a crime, which is committed
during the period of suspension, and in
respect whereof he is sentenced to imprisonment without the option of a
fine."
F H GROSSKOPF JA.
E M Grosskopf JA Kumleben JA Concur