About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2015
>>
[2015] ZAWCHC 52
|
|
Thorne v S (5/1595/2015) [2015] ZAWCHC 52 (23 April 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
REPORTABLE
High
Court Ref No: 15248
Magistrate
Case No: 5/1595/2015
Review
No: 07/2015
DATE:
23 APRIL 2015
In
the matter between:
DENVER
THORNE
..................................................................................................................
Applicant
And
THE
STATE
............................................................................................................................
Respondent
REVIEW
JUDGMENT: 23 APRIL 2015
Henney,
J:
[1]
This is a matter that is subject to review before this court in the
ordinary course in terms of Section 302 of the Criminal
Procedure Act
(“the Act”) 51 of 1977. The accused, a 42 year old male
appeared before the Magistrate’s Court,
Mitchell’s Plain
on a charge of theft, committed on 12 December 2014 at Pick ‘n
Pay, where it was alleged that he stole
7 blocks of cheddar cheese
valued at R287,75. He was not legally represented and elected to
conduct his own defence. He pleaded
guilty to this charge and after
the Magistrate questioned him in terms of Section 112(1)(b) of the
Act, he was convicted on the
offence charged. The prosecutor
thereafter proved a list of previous convictions against him. The
court thereafter, after eliciting
information from the accused about
sentence and after having given the prosecutor an opportunity to
address the court sentenced
the accused to a period of twelve (12)
months imprisonment and an additional twelve months imprisonment that
was suspended for
a period of five (5) years on condition that the
accused is not convicted of theft or attempt thereto during the
period of suspension.
When the review was presented to me, I directed
the following query to the Magistrate.
“
The
Magistrate is requested to furnish reasons for sentence, especially
in the light of the fact that the previous convictions of
the
accused, except for the recent one to which he was sentenced on 19
December 2014 to a term of 6 months imprisonment that was
suspended
on certain conditions, the other convictions were respectively
committed in 1996 and 1997 which was 17 and 18 years ago
respectively
.”
The
Magistrate gave a comprehensive set of reasons to which I will refer
to where necessary at a later stage.
[2]
THE FACTS
The
accused in his answers to the Section 112(1)(b) questions to the
Magistrate admitted that he stole 7 blocks of cheese at Pick
‘n
Pay, Town Centre, Mitchell’s Plain on 12 December 2014.
He did this by taking the blocks of cheese and putting
it into his
pocket, whereafter he walked out of the shop. He was
apprehended by the security guard and thereafter arrested.
He
further stated to the Magistrate that he would have sold the cheese
to get some money. He was unemployed and had no income
and also
did not receive any grant from the government. In mitigation of
sentence he said to the Magistrate that he is unmarried
and the
father of two children, 11 years of age and 16 years. He
further said that he managed to pass standard 7 at school.
He
further told the Magistrate he wants to sort out his life and that he
will stop stealing.
[3]
THE ACCUSED PREVIOUS CONVICTIONS
The
accused has the following list of previous convictions:
YEAR
OFFENCE
SENTENCE
1.
1996
Theft
R1 600,00 or
4 months imprisonment which is suspended for a period of three (3)
years on condition that he is not convicted
of theft or any
attempt thereto, committed in the period of suspension.
2.
1997
Theft
12 months
correctional supervision and in addition a further 16 hours
community service per month.
3.
2011
Possession of
Drugs
in contravention
of
Section 4(b) of
Act 140
of 1992
R1000 or 10 days
imprisonment which is wholly suspended for a period of 3 years on
condition that the accused is not convicted
of contravening
Sections 4(A) or 4(B) Act 140/92 committed during the period of
suspension.
4.
8 May 2012
2 x charges
Contravention of
Section 170 of Act 51 of 1977. Failure to attend court
R100 or 5 days
imprisonment on each count.
5.
13 November 2013
3 x charges
Contravention of
Section 17 of Act 116 of 1998 Contravening Domestic Violence Court
Order
Charges taken
together for purposes of sentence. R1 500,00 or 3
months imprisonment and in addition the accused
is sentenced to a
further 2 months imprisonment suspended for a period of 5 years on
condition that he is not convicted of
contravening Section 17(A)
of Act 116 of 1998 and which is committed during the period of
suspension.
6.
9 December 2014
Theft
(Six)
6 months imprisonment which is wholly suspended for (three) 3
years.
[1]
[4]
Magistrate’s Reasons
The
Magistrate in his reasons with respect did not directly address the
pertinent issue that was raised in the query, but instead
made
generalized statements about the aims of punishment, the so-called
triad and referred to the relevant case law on these aspects
which
the court would regard as trite. He said much about the offence
and the prevalence of the so-called crime of shoplifting
[2]
.
He also made some general remarks about the interests of society. In
his reasons he further states the following in about
seven sentences
about the accused.
“
Mnr
Thorne se persoonlike omstandighede is deur homself op rekord geplaas
dat hy ‘n 37 jarige manlike persoon is wat ongetroud
is.
Hy (sic) slag st 7. Hy het 2 kinders. Sy kinders is 11 en
16 onderskeidelik. Hy is werkloos.
Volgens sy pleit is sy
houding dat hy nie toelaes van die staat kry nie en werkloos is en
voel die staat behoort vir hom te sorg.
In die hof blameer hy
sy misdaad op die staat wie vir ander mense toelaes betaal maar hy
kwalifiseer nie en hy weet nie hoekom
nie want hoe moet hy vir
homself sorg as hy nie werk het nie. Hy is glad nie berouvol
vir sy optrede nie
.”
[5]
Regarding the accused’s previous convictions, the Magistrate
says that the previous convictions of the accused started
in 1996
until 2014 and that he had the benefit of a suspended sentence for
the crime of theft. He further stated that as a second
offender for
the crime of theft even though he was sentenced to correctional
supervision, such sentence did not deter him.
Thereafter he
committed a drug related offence, contempt of court and offences
relating to domestic violence. He persisted
with his criminal
conduct and committed a further theft on 9 December 2014. Three
days thereafter he committed the current
offence.
[6]
The Magistrate further remarked that due to his persistent criminal
conduct he was of the view that the accused should be taught
a
lesson. The Magistrate further stated that retailers like Pick
‘n Pay is entitled to protection by the court against
repeated
offenders. The court should therefore impose strong enough
sentences to deter persons like the accused from committing
offences
like theft of this kind. Lastly, he was of the view that the
accused has three previous convictions which is relevant
to the
charge of theft. It is for these reasons therefore that a
sentence of direct imprisonment is the only appropriate
sentence.
ANALYSIS
[7]
This sentence imposed by the Magistrate in my view is clearly
disproportionate. He failed to take into account that after
the
two previous convictions for theft committed respectively in 1996 and
1997, a period of between 17 and 18 years had lapsed.
Thereafter, after a period of 14 years had lapsed, he was convicted
on an unrelated offence of possession of drugs on 10 August
2011.
[8]
In 2012 and 2013 he was once again convicted of unrelated offence of
not as the Magistrate put it contempt of court, but a failure
to
appear in court in contravention of Section 170 of the Act.
Thereafter in 2013 he was once again sentenced to an unrelated
offence after he was convicted of contravening Section 17 of the
Domestic Violence Act.
[9]
Only in December 2014, after a period of 17 years, he once again
committed the crime of theft. The Magistrate in finding
that
the accused has three previous convictions for theft, which he took
into account before sentencing the accused clearly misdirected
himself. This is not how I understand the law to be. Section
271A says the following:
“
Certain
convictions fall away as previous convictions after expiration of 10
years
Where
a court has convicted a person of—
(a)
any offence in respect of which a sentence of imprisonment for a
period exceeding six months without the option of a fine, may
be
imposed but—
(i)
has postponed the passing of sentence in terms of section 297(1)(a)
and has discharged that person in terms of section 297(2)
without
passing sentence or has not called upon him or her to appear before
the court in terms of section 297(3); or
(ii)
has discharged that person with a caution or reprimand in terms of
section 297(1)(c); or
(b)
any offence in respect of which a sentence of imprisonment for a
period not exceeding six months without the option of a fine,
may be
imposed,
that
conviction shall fall away as a previous conviction if a period of 10
years has elapsed after the date of conviction of the
said offence,
unless during that period the person has been convicted of an offence
in respect of which a sentence of imprisonment
for a period exceeding
six months without the option of a fine, may be imposed.”
[10]
This provision was first inserted by Sec 12 of Act 5 of 1991 and was
later amended by Sec 6 of Act 4 of 1992 and later substituted
by Sec
2 of Act 65 of 2008 in its present form. Clearly, the previous
convictions for the theft committed in 1996 and 1997
automatically
lapsed respectively in 2006 and 2007 after a period of 10 years had
lapsed. The accused further was not convicted
of any offence
during this period in respect of which a sentence of imprisonment for
a period exceeding six months without the
option of a fine, could be
imposed.
[11]
Clearly the first offence after the 1997 theft conviction, he
committed was of a relatively minor nature, which was committed
after
a period of 14 years had elapsed after his last conviction for
theft. It was also unrelated and not an offence which
was
committed during the period of 10 years. The only conviction
that could have been taken into consideration was the one
committed
in December 2014. The Magistrate’s finding that he had
three previous convictions was clearly wrong and a
misdirection.
See
S v Zondi
1995 (6) SACR 18(A)
.
[12]
Apart from the Magistrate having clearly misdirected himself about
the fact whether the 1996 and 1997 convictions should have
been
considered he also placed undue weight on the fact that the accused
has previous convictions. Even in the ordinary course
of events
where a past conviction can be considered as a previous conviction
that would play a part in influencing a sentence a
court would impose
our courts has warned against a practise, where previous convictions
as has happened in this case should be
used to justify the imposition
of ever increasing sentences. See
S
v Stenge
2008 (2) SACV 27
at 30 c – d
.
Especially in cases where an accused person’s due to dire
socio-economic conditions and poverty commit petty theft
offences in
order either to feed themselves or their families. In
S
v Baartman
1997 (1) SACR 304
(E) at 305 e – f,
the
learned judge said the following:
“
Thus,
a thief who steals a loaf of bread should not have to go to gaol for
10 years because he has stolen countless loaves of bread,
one at a
time, in the past. His sentence should never escalate with the
passage of time from a few weeks for initial offences,
to a few
months, eventually to years, and then to many years; the offence
remains a petty offence no matter how often it is repeated.”
[13]
In this particular case the offence committed by the accused was not
out of pure greed or to enrich himself, but it was in
an attempt to
get money to feed his family. He was also not characterized as
a dangerous criminal against whom society needed
protection and who
had to be removed from society.
[14]
Most of the offences he had committed even those unrelated were of a
minor nature that would not ordinarily have justified
the imposition
of a term of imprisonment. Therefore even if those two
convictions could have been taken into consideration,
given the
relative minor nature of the offence, the fact that there was no
pressing need for the accused to have been removed from
society and
the personal circumstances of the accused, it did not justify the
imposition of a sentence of direct imprisonment.
[15]
The Magistrate in my view also over-emphasized the seriousness of the
offence when he sentenced the accused to a period of
twelve (12)
months direct imprisonment as a second offender, without having
considered other sentencing options. He also over-emphasized
and
improperly took into consideration the lapsed previous convictions
for theft of the accused. This is a harsh sentence given
the fact
that the accused had been convicted of theft of 7 blocks of cheese.
[16]
He was previously sentenced to correctional supervision 17 years ago
for theft, which seem to have had the desired effect.
Unlike
the view of the Magistrate it seems that after this sentence was
imposed, the accused did not after the imposition of this
sentence up
to at least 2011 where he was convicted and sentenced to an unrelated
offence and only after a period of 14 years,
had any run-ins with the
law. This could have been an appropriate sentencing option for
the court once again to consider,
and was clearly not considered by
the Magistrate. The accused it seems has been incarcerated since 25
February 2015 in this matter,
which is a period of 1 month and 26
days. In my view in the light of the reasons given above, such
period of incarceration
should serve as adequate punishment.
[17]
In the result, I make the following order:
1.
That the sentence of twelve (12) months
imprisonment imposed by the
Magistrate
on 25 February 2015 is set aside.
2.
The accused is to be released from prison
forthwith unless there is a lawful reason for his further
incarceration.
3.
That the accused is sentenced to a term of
one (1) month and 26 days antedated to 25 February 2015. The accused
is sentenced to
an additional eight (8) months imprisonment which is
suspended for a period of five (5) years on condition that the
accused is
not convicted of theft or any attempt thereto and which is
committed in the period of suspension.
HENNEY,
J
Judge
of the High Court
I
agree, it is so ordered.
STEYN,
J
Judge
of the High Court
[1]
This
previous conviction was proved by means of a J14 and the Clerk of
the Court it seems did not fully state the conditions of
the
suspended sentence.
[2]
Colloquially
referred to theft from a supermarket or retailer.