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1997
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[1997] ZASCA 67
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S v Andrews and Others (415/96) [1997] ZASCA 67 (9 September 1997)
REPUBLIC
OF
SOUTH AFRICA
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
Case No 415/96
/mb
In the matter of:
ANDREW ANDREWS
FIRST APPELLANT
MORN
STURGEON
SECOND APPELLANT
LEON HARWOOD
THIRD APPELLANT
GREGORY HARWOOD
FOURTH APPELLANT
ALLAN HALL
FIFTH APPELLANT
and
THE STATE
RESPONDENT
CORAM
: : HARMS, SCOTT JJA et STREICHER AJA
HEARD
: : 4 SEPTEMBER 1997
DELIVERED
: : 9 SEPTEMBER 1997
JUDGMENT
SCOTT JA/
...
2
SCOTT JA
:
The appellants pleaded guilty in the
Regional Court
to a charge
of theft of motor car parts. They were duly convicted and each was
sentenced to 6 years imprisonment of which 3 years were conditionally suspended for 5 years. Their appeal against sentence to the
Transvaal
Provincial Division was unsuccessful. Leave to appeal was refused by the
court o quo but was subsequently granted pursuant to a petition to the Chief
Justice.
The circumstances in which the theft was committed were
common cause. The parts in question comprised some 70 items and
included parts such as wheels, mudguards, bumpers, seats, direction-
indicators, radio speakers and the like. Their market value was
approximately Rll 000 and their replacement value was estimated to be in
the region of R40 000. The parts were removed from 11 motor vehicles
3
which together with a large number of other vehicles had been impounded
by the police and were being kept in a police storage-yard situated in
Benoni. The yard was surrounded by a fence 1,8 metres high and
reinforced with razor-wire. In the early hours of the morning of
16 November 1994 the appellants gained access to the yard through a hole
which had previously been made in the fence but subsequently repaired.
After removing the parts they were apprehended by the police as they were
attempting to leave the yard.
Captain Venter, who was the officer in charge of the yard,
described in evidence the difficulties he experienced protecting the vehicles
in the yard from thieves. He said that subsequent to him assuming control
in June 1994 the prevalence of theft from the vehicles was such that an
amount of R125 000 had been spent reinforcing the original fence with
razor-wire and creating partitions within the yard. The thefts had
4
nonetheless continued and there were complaints virtually daily from
members of the public that parts had been removed from their vehicles
while in police custody. The police as a consequence were obliged to pay
out relatively large sums of money as compensation.
None of the appellants gave evidence; nor were any witnesses
called on their behalf to give evidence in mitigation or offer any
explanation for their conduct. All were represented by the same attorney
who addressed the court in mitigation. It appears that the first and second
appellants were 19 years of age, the fourth and fifth appellants 18 years,
and the third appellant 20 years of age. None were married or had
children. All were in fixed employment earning between Rl 500 and
R2 000 per month. The first and third appellants each had a previous
conviction for theft. The first appellant's conviction related to the theft of
a 'plug' for which he was cautioned and discharged. The third appellant
5
had been convicted of stealing a 'multimeter' and sentenced to a juvenile
whipping. The regional magistrate was of the view that these convictions
were not sufficiently serious to justify a different sentence. It was not
contended that he erred in adopting such an approach.
It does not appear from the record of the proceedings that the
attorney representing the appellants requested a report in terms of
s 276 A(l)(a) of the
Criminal Procedure Act, 51 of 1977
, regarding the
suitability of the appellants for correctional supervision; nor is any
reference made in the magistrate's judgment to this sentencing option. Both
in this court and in the court below it was contended that the magistrate
erred in not considering the imposition of correctional supervision and the
various advantages of this form of punishment were pressed upon us in
support of this submission.
The fact that no mention was made in the judgment of
6
correctional supervision does not mean, of course, that the magistrate
overlooked it as one of the sentencing options open to him. What is clear is that he was of the view that the circumstances were such
as to require
the imposition of direct imprisonment. This in itself is no justification for
the inference that he misdirected himself in the exercise of his discretion to
impose an appropriate sentence; nor was counsel for the appellants able to
suggest any other basis, apart from the severity of the sentences, for holding
that there had been a misdirection.
The sentences imposed were undoubtedly severe. But that does not mean this court can interfere. It has been said time without measure
that a court of appeal has no general discretion to ameliorate the sentences
of trial courts. Where it is sought to have a sentence set aside on appeal
solely on the ground of its severity, what must be shown is that the
sentence is so severe that the inference can be drawn that the trial court
7
failed to properly exercise its discretion when imposing it.
The theft of spare parts involving the removal of those parts
from a motor vehicle, like the theft of a motor vehicle itself, is regarded by
the courts in a particularly serious light. Not only is it a crime which is
prevalent throughout the country but by the very nature of things is difficult
to guard against. The courts have issued countless warnings that they will
take strong action against those who are convicted of crimes of this nature
and generally the severity of the sentences imposed in such cases has
increased in recent times. This much must be known to all. It is so that
the appellants are relatively young. But this was not a crime committed on
the spur of the moment. It was carefully planned and indeed one is struck
by its audacity. The parts were removed from vehicles in the custody of
the police and virtually from under their noses. As I have indicated,
something in the region of 70 parts were removed from no fewer than 11
8
vehicles. All this is indicative of a sophisticated criminal operation on a
relatively large scale.
It may well be that the sentence imposed in each case is more
severe than one which I myself might have imposed sitting as a court of
first instance. But the difference relates more to the period of imprisonment
which was suspended than to the period which was made effective. In
these circumstances I am unpersuaded that there is any sound basis for
holding that the magistrate failed properly to exercise his discretion. This
court is accordingly not at large to interfere with the sentences imposed and
the appeal cannot succeed.
The appeal is therefore dismissed.
D G SCOTT
HARMS JA ) - concur
STREICHER AJA )