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NORTH WEST HIGH COURT, MAFIKENG

CASE NO.: 21/2012

In the matter between:-

SIBUSISO JOHANNES MKHIZE APPELLANT

And

THE STATE RESPONDENT

JUDGMENT

GURA J

Introduction

[1] The appellant was convicted of theft of a motor vehicle by the Regional Court and sentenced to ten years imprisonment. With leave of the Supreme Court of Appeal, he appeals against sentence.

[2] The duty to impose sentence is the prerogative of the trial court and a court exercising appellate jurisdiction will not lightly interfere in this domain. A court of appeal will interfere however where the trial court exercised its discretion improperly or unreasonably or where there is a material misdirection (on the part of the court a quo) or where as it was stated in S v Malgas 2001 (1) SACR 469 (SCA) the disparity between the sentence of the trial court and the sentence which the court of appeal would have imposed had it been the trial court is so marked that it can properly be described as shocking, startling or disturbingly inappropriate.

Factual Background

[3] The following facts were taken into account by the trial court when considering sentence: the appellant is a police officer whom the complainant trusted; he showed no remorse; when the vehicle was recovered it was damaged and he did nothing to assist its owner to repair it; the value of the motor vehicle is always too high; the complainant was using the car for important family matters and not for pleasure; the complainant did not only suffer financially but also psychologically and the appellant has two previous convictions, one of which is for theft.

[4] Mr Skibi, for the appellant, submitted that the trial court erred in the following respects: failure to consider the appellant’s personal circumstances; it overemphasized the seriousness of the offence and although there was no evidence regarding the psychological effect of the crime on the complainant, the court found that the theft had an adverse psychological effect on him. Mr Nontenjwa, for the respondent, conceded correctly in my view, that the trial court took into account irrelevant considerations and sacrificed the appellant’s personal circumstances on the altar of the seriousness of the offence. Both counsel submitted that this Court had to interfere with the sentence of ten years taking into account recent comparable cases such as S v Koutandos and Another 2002 (1) SACR 219 (SCA); Sassman v The State [2006] JOL 18325 (SCA) and S v Gerber [2006] ZASCA 27; 2006 (1) SACR 618 (SCA).

[5] Every sentencing judicial officer is obliged to take into account at least three competing interests at sentencing stage: they are the offence, the interests of society and the personal circumstances of the accused (S v Zinn 1969 (2) SA 537 (A)). Any approach to sentence which seeks to bypass or disregards any of these three elements is fraught with pitfalls. Throughout the sentencing stage, the trial court never alluded to the personal circumstances of the appellant. This leaves any reasonable reader of the record with the impression that the court totally overlooked his personal circumstances. How else will one know that the court had this element in mind unless it (court) mentions it expressly or by necessary implication? This omission, on the part of the trial court, is a serious misdirection which vitiates the sentence. See S v Pillay 1977 (4) SA 531 (A) at 535 E-G.

[6] In my view, the trial court further misdirected itself by attaching weight on matters which were either irrelevant or not proved. There was no evidence relating to the psychological adverse effect of the crime on complainant. The State has to prove the value of the stolen car. If it fails to do so, the court is only justified to infer what its value could be based on the two cardinal rules of logic, see R v Blom 1939 AD 188. In the present matter, it was rather speculative for the court to state that the value of the vehicle “is always too high.”

[7] In S v Gerber [2006] ZASCA 27; 2006 (1) SACR 618 (SCA) the court conducted a survey of sentences which had been imposed in the past for motor vehicle theft. The court emphasised that there is a need for uniformity in sentences for different crimes. The court further recognised that as the prices of motor vehicles keep on increasing, it was necessary that sentences should also keep pace with the incidence of crime. The court found in its survey of past sentences that the latest sentence which was imposed for motor vehicle theft was one of seven years’ imprisonment. In Gerber, the accused was convicted of theft of one motor vehicle and sentenced to ten years’ imprisonment of which three years were suspended on appropriate conditions. The appeal against sentence to the Provincial Division was unsuccessful. When the matter served before the Supreme Court of Appeal, the sentence was altered to seven years’ imprisonment, of which two were conditionally suspended. The SCA remarked that

“…the appellant certainly deserved a sentence at the high end of those currently being imposed …“

(at 623f-g)

[8] The only mitigatory factor in favour of the appellant, who was a panelbeater was that he was a first offender where offences involving dishonesty were concerned. However there were aggravating features in the case:

“the offence had involved careful planning and the use of his particular skills; the evidence he had given in mitigation of sentence revealed a complete lack of insight and remorse; and when the police investigation began he had done his best to protect his co-perpetrators.” (at 619I)

[9] In S v De Ruiter 2004 (1) SASV 332 (W) the appellant had several previous convictions for offences involving dishonesty. He was convicted of stealing a luxury vehicle and sentenced to ten years’ imprisonment. On appeal, three years of this sentence were suspended. In another case, the appellant was convicted of theft of a truck and 1500 tyres. He earned for himself fifteen years’ imprisonment in the Regional Court which was reduced to twelve years’ imprisonment on appeal (S v Govender (TPD) case No. A1127/03, 3 May 2004)

[10] The personal circumstances of the appellant in the present matter are as follows: He is married and has three minor children. His wife is unemployed and he was working at Blue Ribbon. He was 32 years old at the time of sentence but he is presently 36 years old. Prior to release on bail, he was an awaiting trial prisoner for about four months. The appellant took the vehicle keys from the table under the pretext that he was going to fetch something from the complainant’s car, he then vanished with the car. That is how it was stolen.

[11] He is a police officer and the complainant trusted him. He has two previous convictions. On 25 February 1997 he was convicted of a statutory offence for using another’s property without permission for which he was sentenced to six months’ imprisonment which was entirely suspended. On the date of sentence in the present matter (17 March 2010) the 1997 record was thirteen years old. It has to be disregarded for the purpose of sentence. On 6 June 2000 he was convicted of theft (what he stole is not clear from the SAP 69) and sentenced to serve four years in gaol. This relevant previous conviction coupled with the fact that the appellant was a law enforcement officer whom the complainant trusted will aggravate the situation. The value of the vehicle was not proven. When it was recovered, it was damaged – again the value of the cost of repairs is not part of the evidence before us.

[12] Having considered all these facts, the Court is of the view that the sentence of ten years is rather on the heavy side. I am saying this quite aware that motor vehicle theft is on the increase.

[13] In the result, the following order is made:

1. The appeal is upheld.

2. The sentence of ten years’ imprisonment is set aside and replaced with “seven (7) years’ imprisonment.”

3. The sentence is ante dated to 17 March 2010.

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SAMKELO GURA

JUDGE OF THE HIGH COURT

I agree

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R.D HENDRICKS

JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING: 19 OCTOBER 2012

DATE OF JUDGMENT: 07 FEBRUARY 2013

COUNSEL FOR THE APPELLANT: ADV. N.L SKIBI

COUNSEL FOR THE RESPONDENT: ADV. M.C NONTENJWA

ATTORNEYS FOR APPELLANT: LEGAL AID SOUTH AFRICA

ATTORNEYS FOR RESPONDENT: STATE ATTORNEYS

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