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Onose v S (CA&R 276/2011) [2012] ZAECGHC 52 (25 June 2012)

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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE, GRAHAMSTOWN


CASE NO: CA&R 276/2011

Date Heard: 6 June 2012

Date Delivered: 25 June 2012


In the matter between:


THAMSANQA JOHANNES ONOSE …........................................................Appellant


and


THE STATE …..........................................................................................Respondent



JUDGMENT



GOOSEN, J:


  1. This is an appeal against the sentence imposed by a magistrate sitting in Uitenhage. The appellant was convicted of three counts of theft of tyres from motor vehicles. The offences were committed in April, August and October 2008, respectively. The appellant was sentenced to three years imprisonment of which one year was conditionally suspended for four years on each count, resulting in an effective sentence of six years imprisonment.


  1. Leave having been granted the appellant appeals against the sentences imposed on the basis that the magistrate erred in finding that the appellant’s previous convictions are aggravating since the last conviction was some ten years prior to the present conviction. It is also submitted that the cumulative effect of the sentences imposed is so harsh as to induce a sense of shock and that for this reason too the court should interfere with the sentences.


  1. The State, represented by Mr Els, is in agreement that the effective sentence is indeed shockingly inappropriate and accordingly supports the appeal.


  1. In his reasons for sentence the magistrate states that he indeed took into account the accused’s personal circumstances, namely that he is a 51 year old taxi driver who earned R300.00 per week. It was also considered that he is a father of six children all of whom live with him and his wife and that the accused supports them since his wife is unemployed. Against these factors the magistrate weighed the seriousness of the offences and the interests of the community. His conclusion was that the nature of the offence called for a period of direct imprisonment given the serious nature of the offences. In concluding his reasons for sentence the magistrate said the following:


My jurisdiksie op ‘n klagte is slegs 3 jaar gevangennistraf. Ek was van mening dat 3 jaar gevengennistraf vir die drie misdade hopeloos te lig sou wees. Ek het selfs oorweeg om die saak na die Streekhof te verwys vir vonnissoplegging. Ek was van ooordeel dat ‘n gepaste straf nege jaar sou wees en dat ‘n gedeelte daarvan opgeskort word. Die enigste manier hoe ek so vonnis kon oplê was om beskuldigte afsonderlik op elke klagte te straf. Die Streekhof was ek van mening sou dieselfde vonnis oplê. Om daardie rede is die saak nie na die Streekhof verwys nie. Indien ek kon, sou ek die klagtes saamgeneem het vir doeleindes van vonnis en sou ek die beskuldigde nege jaar gevonnis het, en drie jaar opgeskort het.”


  1. It is apparent from a consideration of the magistrate’s reasons for sentence that he indeed did over-emphasise the seriousness of the offence. This is not to suggest that theft is not a serious offence. It undoubtedly is. In my view however, the magistrate did not balance the scales of justice in relation to sentence and instead weighted factors in favour of harsh treatment by way of retribution for the offences committed.


  1. It is apparent too that the magistrate, notwithstanding the statement to the contrary, in fact approached the imposition of sentence by considering all of the offences collectively. The sentence result was indeed the imposition of nine years imprisonment of which a portion was suspended. In doing so the magistrate misdirected himself. In consequence a sentence was imposed which is shockingly inappropriate. No proper consideration was given to the cumulative effect of the individual sentences imposed in respect of the multiple offences for which the appellant was convicted.


  1. In the circumstances this court is at large to interfere with the sentences.


  1. Having regard to the nature and circumstances of the offences and considering that theft is indeed a serious offence, a sentence of direct imprisonment is warranted. However, due weight must be given to the personal circumstances of the appellant and the impact that a sentence of imprisonment will have upon the appellant and his family.


  1. The appellant was convicted following a change of his plea during the trial. Although it is indeed so that this followed production of fingerprint evidence which linked the appellant to the commission of the offences, the change in plea nevertheless signifies an acceptance of responsibility and therefore a measure of remorse. An expression of remorse, however induced, is an indicator of a prospect of rehabilitation and accordingly must be weighed in favour of the appellant.


  1. It follows from what is set out above that the appeal must succeed. In the result I would make the following order:


The sentences imposed upon the appellant in respect of each count of theft are hereby set aside and the magistrate’s order is substituted with the following:

On each of count 1, 2 and 3 the accused is sentenced as follows:

2 years imprisonment of which 1 year is suspended for a period of 4 years on condition that the accused is not again convicted of theft or attempted theft during the period of suspension.”





__________________________

G GOOSEN

JUDGE OF THE HIGH COURT





CHETTY J:


I agree. Such an order will issue.







__________________________

D CHETTY

JUDGE OF THE HIGH COURT



APPEARANCES:


FOR APPELLANT: Ms. H. McCallum

Justice Centre

Grahamstown


FOR RESPONDENT: Mr. D. Els

Director of Public Prosecutions

Grahamstown