[2]
The magistrate sentenced the accused to 8 years imprisonment of which 3 years were suspended for
5 years on the usual condition. The sentence clearly exceeds the ordinary penalty jurisdiction of a magistrate's court in a case like this, which is, in the case of imprisonment, a maximum period of 5 years imprisonment. The sentences can therefore not stand.
[3]
The personal circumstances of the accused as stated by themselves are that accused no. 1, who was
about 28 years old, has a girl friend and four children. He volunteered information that he was serving a number of sentences totaling
seven years for various crimes, but no previous convictions were proved. Before he went to prison he had 10-11 goats. Accused no.
2, who was about 27 years old of age, had a girlfriend and two children. He was unemployed, had no money for a fine and no live stock.
The loss sustained by the complainant is considerable. The evidence also shows that a window, a door and burglar bars were broken
in order to gain access to the shop, thereby adding to his damages.
3
[4]
I agree with the trial magistrate that an appropriate sentence in the circumstances of this case
would be a substantial period of imprisonment of which part is suspended.
[5]
In the result the following order is made:
1.
The convictions of both accused are confirmed.
2.
The sentences of both accused are set aside and substituted by the following sentence:
4 (four) years imprisonment of which (one) year is suspended for 5 (five) years on condition that the accused is not convicted of
housebreaking with intent to steal and theft committed within period of suspension.
______________________________
VAN NIEKERK, J
.RTF of original document