IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT. CAPE TOWN)

In the matter between:

and

JUDGMENT

The magistrate further took into account, what the magistrate referred to as the nonchalant way in which the appellant committed the offence, a fact that in the magistrate's view, demonstrated that the previous suspended sentence did not have the desired effect on the appellant. The magistrate referred to the fact that appellant was at the time addicted to the drug TIK and that he received treatment at the Toevlug Treatment Centre for one month. The magistrate also took into account that the cell phone had not been returned to the complainant and that the accused did not offer to compensate the complainant for his loss.

The magistrate also considered it relevant that on a previous court date the appellant had not appeared in court and that when he next appeared he stated that he intended pleading guilty. It would appear, however, that on the occasion that he was not present in court, he was ill. There is a medical certificate in the record which says that he was ill on that occasion.
When the matter came before us on a previous occasion in February 2008, the appeal hearing was postponed for a report of a correctional officer to ascertain whether the appellant was a suitable candidate for correctional supervision. The report has now come to hand and the officer reports that the appellant voluntarily submitted to rehabilitation and he is now free of drugs and is employed as a trainee chef. He now expresses remorse and according to the report the appellant is a suitable candidate for correctional supervision. It must also be borne in mind that the appellant did spend approximately 14 days in prison, first after his arrest before he was granted bail and subsequently after his conviction and before he was granted bail pending the appeal.

We consider that in practice it will cause more problems if a period of house arrest is ordered. In our view it is more appropriate to impose a suspended sentence of imprisonment subject to appropriate conditions. We do not consider direct imprisonment as was ordered by the magistrate to be an appropriate sentence in this case. This is a young man who must be rehabilitated outside prison.

The order which I propose is as follows:

c)	That the appellant not use alcohol or drugs other than prescribed by a medical doctor.
That the appellant subject himself to alcohol and drug testing, should the Commissioner or his delegate order such test.

That the appellant pay R1 000,00 to the complainant, Douglas Smith, as compensation for the loss of his cell phone by no later than 30 April 2010.

LOUW, J

BRUSSER, AJ

LOUW, J:   It is so ordered.

LOUW, J