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[2012] ZAWCHC 319
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Landzela v S (A351/12) [2012] ZAWCHC 319 (21 September 2012)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NO:
A351/12
DPP
REF NO:
9/2/5/1-209/12
In
the matter between:
SIMPHlWE
LANDZELA
.....................................................................................................
Appellant
And
THE
STATE
...................................................................................................................
Respondent
JUDGMENT
DELIVERED ON 21 SEPTEMBER 2012
YEKISO,
J
[1]
This is an appeal against sentence only imposed on the appellant on
11 May 2011 by the regional court, sitting at the magistrate’s
court, Bellville. The allegation against the appellant at the time of
the commencement of the trial was that on 12 May 2010 and
at No 2
Wellway Park, Durbanville, the appellant wrongfully, unlawfully and
intentionally broke into the premises of the complainants,
a Mr
Willem Jongsma as well as his spouse, Mrs Jongsma, with intent to
steal and theft.
[2]
In an ensuing trial which commenced in the district court on 15
October 2010 the court, after hearing evidence, concluded that
the
state had succeeded to prove the
guilt
of the appellant beyond reasonable doubt and proceeded to convict the
appellant of housebreaking with intent to steal and
theft as charged.
[3]
Once the appellant was convicted and his previous convictions were
proved, the district court which convicted him was of the
view that
the matter before it, because the appellant’s previous
convictions, was of such a nature and magnitude that it
warranted
punishment in excess of its jurisdiction. The appellant was
subsequently referred to the regional court for consideration
of an
appropriate sentence in terms of the provisions of
Section 116
of the
Criminal Procedure Act, 51 of 1977
.
[4]
Once the regional court was satisfied that the proceedings in the
district court were held in accordance with justice, and after
hearing argument in mitigation and aggravation, it determined that a
sentence of (12) years direct imprisonment was: an appropriate
sentence in the circumstances of the matter before it and proceeded
to impose that punishment. The appellant was legally represented
both
at the proceedings before the district court, Bellville as well as
the proceedings in the regional court. This appeal, which
is against
sentence only, is by leave of this court.
[5]
The merits of the allegations against the appellant were that the
incident of housebreaking occurred at night at the private
residence
of the complainants, the said Willem Jongsma as well as his spouse,
Mrs Jongsma. Entry into the premises was gained by
breaking a window
which set the burglar alarm off. The appellant was apprehended at the
scene of the commission of crime.
[6]
In considering what an appropriate punishment ought to be in the
circumstances of this matter, the regional magistrate took
into
account all those factors that are normally taken into account by
courts in the determination of what ought to be an appropriate
sentence. These factors related to the appellant’s personal
circumstances, which included a list of his previous convictions,
the
gravity of the offence as well as the interest of the community. The
appellant’s personal circumstances are on record
and these
relate, amongst others, that the appellant grew up in the Eastern
Cape and that he came to Cape Town at the age of 12;
that at the time
the sentence was imposed on him he was 50 years of age; that he is
unmarried and that he had two minor children
who he had to support
and who, it appears, reside with a member of his family in the
Eastern Cape. There was placed before the
magistrate a probation
officer’s report which recommended that the appellant complete
a certain number of hours of community
service and be placed under
the supervision of a probation officer. However, the magistrate
rejected the probation officer’s
report on the basis that it
did not take into account the accused’s previous convictions.
[7]
It is trite that a matter of sentence is always a matter which
inherently is within the discretion of the presiding judicial
officer
at any sentencing proceedings. A court of appeal will rarely, if
ever, interfere with the exercise of such a discretion.
It is only in
those rare instances where the presiding officer, charged with a
responsibility of imposing an appropriate sentence,
exercises his or
her discretion injudiciously, that a court of appeal will interfere
with the exercise of such a discretion.
[8]
As has already been pointed out elsewhere in this judgment, the
regional magistrate, in considering what an appropriate punishment
ought to be in the circumstances of this matter, took into account
all those traditional factors which, courts normally take into
account in the determination of an appropriate sentence. I have
thoroughly considered the judgment of the regional magistrate
regarding sentence and, in my view, there is no indication at all in
the record of these proceedings that the magistrate either
exercised
her discretion injudiciously or over-emphasized any one of thfe
factors she had to take into account in the determination
of an
appropriate sentence over other relevant factors or under-emphasized
any such factors. In doing so, the magistrate was mindful
of the fact
that the appellant was, as far back as 31 July 1998, : warned in
terms of
section 286
of the
Criminal Procedure Act of a
potential to
be : declared a habitual criminal in the event of any subsequent
conviction.. As at the date of imposition of punishment
the appellant
had no less than 10 previous convictions relating to housebreaking
with intent to steal and theft over and above
several other previous
; convictions which involved an element of dishonesty. Although the
regional magistrate ' was urged, during
argument in aggravation, to
declare the appellant a habitual criminal, she nonetheless declined
to do so and became of the view
that a sentence of 12 years direct
imprisonment is an appropriate punishment in the circumstances of
this matter.
[9]
Ms
Van der Westhuizen
,
both in her submissions and in argument before us, made a point that
all the forms of sentences imposed on the appellant in the
past did
not achieve the object striven for and that perhaps a non-custodial
punishment as recommended in the probation officer’s
report
might well achieve the desired results in the sense of rehabilitating
the appellant. We have seriously considered the submissions
by Ms
Van
der Westhuizen
as well as her
argument in court when she sought to persuade us to seriously
consider to substitute the punishment imposed on the
appellant with
non-custodial punishment but we are not persuaded that non-custodial
punishment will be an appropriate punishment
in the instance of this
matter.
[10]
I am not persuaded that the sentence, as imposed by the regional
magistrate, is either inappropriate or induces a sense of
shock as
the appellant’s counsel would seek to suggest in her
submissions and in argument before us.
[11]
In my view, the regional magistrate cannot be faulted in the approach
she adopted in the determination of an appropriate sentence
in this
matter and, in view thereof, I am of the view that the appellant’s
appeal against sentence ought to fail,
[12]
In the result I would propose the following order, namely:
That
the appeal against sentence be dismissed and the convictions and the
sentence imposed be confirmed.
N
J Yekiso, J
I
agree
L
M Buikman, AJ
It
is so ordered