South Africa: Eastern Cape High Court, Grahamstown

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION – GRAHAMSTOWN

                                                                                      Case No: CA & R 439/2013

                                                                                      Date Heard: 30 July 2014

                                                                                      Date Delivered: 10-09-2014

In the matter between:

WAYNE PIENAAR                                                                                                  APPLICANT

And 

THE STATE                                                                                                        RESPONDENT

JUDGMENT

JACOBS AJ:       

[1] This is an appeal with leave from the Judge President on petition against the sentence of eight (8) years imprisonment imposed on the appellant pursuant to a conviction on housebreaking with intent to steal and theft. The approach of a court of appeal in considering an appropriate sentence is that it will be slow to interfere with a sentence imposed by a trial court.  It may interfere in exceptional circumstances where the interests of justice require it to do so: R v Ramanka 1949 (1) SA 417 (A) at page 419 – 420.

[2] The court of appeal will determine an appropriate sentence it would have imposed had it sat as a trial court and compare it with the actual sentence that the trial court imposed. If the difference between the two sentences is too great and the inference is capable to be drawn that the trial court had acted unreasonably court will be justified to interfere.

[3] The trial court indicated that the appellant was [….] years old at the time of the commission of the offence. He has been […..] for 12 years, has a two year old daughter and his [….] is unemployed. The appellant had been employed in the construction industry on a casual basis prior to his arrest earning an average income of approximately R3 000, 00 – R4 000, 00 per month. The appellant’s highest level of education is grade 10.  He pleaded guilty and exhibited remorse. He has been using drugs since the age of 16 years. The appellant has numerous previous convictions for dishonesty. The appellant was sentenced on 13 April 2000 for theft, and a suspended sentence was imposed. On 20 December 2012 a fine R150 of 100 days’ imprisonment was imposed for abuse of dependence-producing substances. On 14 July 2003 a sentence of 24 months’ imprisonment for housebreaking with intent to steal and theft which was suspended for a period of 5 years, was imposed. On 13 October 2003 a fine of R500 or 50 days’ imprisonment was imposed for his conviction for abuse of dependence-producing substances suspended for a period of five years. On 1 October 2007 a fine of R500 or 50 days’ imprisonment for possession of presumably stolen property was imposed, suspended for a period of five years.  On 1 October 2007 the appellant was also fined R1000 or 100 days’ imprisonment for theft. On 25 August 2008 a sentence of twelve months’ imprisonment for possession of presumably stolen property was imposed.  On 29 April 2009 a fine of R400 or 40 days’ imprisonment for theft was imposed, suspended for a period of five years. On 29 June 2009 a sentence of 3 years’ imprisonment for housebreaking with intent to steal and theft was imposed.  On 24 June 2010 a sentence of six months’ imprisonment for housebreaking with intent to steal and theft was imposed. On 18 June 2012 a sentence of twelve months imprisonment for housebreaking with intent to steal and theft was imposed.  On 26 April 2013 a sentence of 3 years’ imprisonment for housebreaking with intent to steal and theft was imposed.  On 7 August 2013 a fine of R500 or 25 days’ imprisonment for trespassing was imposed.

[4] The appellant conceded that the offence is serious. He however submits that the complainants were not injured, the property was recovered and the property was not damaged in any fashion. The trial court considered the interests of society and indicated that a sentence in terms of section 276 (1) (i) of the Criminal Law Procedure Act 51 of 1977 would only serve the interests of the appellant. The appellant is fully aware of his drug dependency and has not addressed it on his own volition.

[5] In S v Baartman 1997(1) SACR 304 E (at 305) Jones J held:

“(a)      The accused  should be sentenced for the offence charged and not for his previous record;

(b)       The public interest is harmed rather than served by sentences that are out of all proportion to the gravity of the offence”. The appellant must be punished for the offence he was convicted of and not for other crimes in the past. Previous convictions are relevant to sentence, but only in so far as they reflect upon the character of the accused.  A person with a record such as that of the appellant is obviously less deserving of mercy than is a first offender; he is also probably less amenable to rehabilitation. 

[6] The sentence imposed must always fit the crime.  A long list of previous convictions of a similar nature is indeed very important.  It could however never serve to extend the period of sentence to the extent that it is disproportionate to the seriousness of the crime for which such a person must be punished.  A sentence of eight (8) years’ imprisonment in circumstances where there was no actual loss suffered strikes me as unduly harsh.

In the light of what I have stated above I am of the view that this court is entitled to intervene and to substitute the sentence imposed by the court a quo.  In my view the proposed sentence of five (5) years’ imprisonment is appropriate and fair.

[7] In the result I make the following order:

1.         The accused is sentenced to five (5) years imprisonment.

2.         The commencement of the sentence is antedated to 20 September 2013.

_________________

S. JACOBS

ACTING JUDGE OF THE HIGH COURT

I agree.

_________________

C. MEY

ACTING JUDGE OF THE HIGH COURT

ADV C MTINI for the appellant instructed by Grahamstown Justice Centre, High Street, GRAHAMSTOWN

ADV ELS for the respondent instructed by Director of Public Prosecutions, High Street, GRAHAMSTOWN