IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE DIVISION) CA&R No: Review No: Date Delivered: In the matter between: JUDGMENT

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1 1 IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE DIVISION) CA&R No: Review No: Date Delivered: In the matter between: The State and Nataniel Mondo JUDGMENT PLASKET AJ: [1] On 16 October 2002, the accused walked into Livingstone Hospital in Port Elizabeth, stole a weed eater and accessories worth R and left. Shortly thereafter, and in the vicinity of the hospital, he was arrested and the stolen property was recovered. He was unrepresented at his trial and pleaded guilty to a charge of theft. He was duly convicted on his plea. He was sentenced to 18 months imprisonment. [2] The magistrate elicited the following information from the accused in mitigation: that he was unmarried, had no dependants, that his mother did not work and nor was she paid a social grant, that he earned money intermittently from odd jobs to support his mother and himself, that at the time of being sentenced he had not worked for about three months and that he had a standard seven education. Both the accused and his mother, who also testified, asked for mercy. Both testified about their difficult economic and

2 2 other circumstances. [3] The accused expressed remorse and asked that he be given a sentence that did not involve incarceration. It appears (from the magistrate s questioning of the accused in terms of s112 of the Criminal Procedure Act 51 of 1977) that the offence was committed on the spur of the moment: the accused stated that he had gone to Livingstone Hospital to visit his mother and when he saw the weed eater toe dink my gedagte maar nou eintlik hier is geld, ek kan die ding vat en hom maar gaan verkoop by n pawn shop dan sal ek geld in die hande kry en geld huis toe vat dat daar kos in die huis wees. [4] Although no evidence was led to this effect and the magistrate never asked the accused or his mother about this, it appears from the charge sheet that the accused was 19 years old at the time of his trial. It appears too that he is a first offender. [5] In his judgment on sentence the magistrate stated that he had taken into account the personal circumstances of the accused but then negated any impact that they could have had on sentence by saying the following: Die feit dat u moeder en u alleen daar by die huis is en dat u eintlik na u moeder omsien, sy kry op die oomblik sielkundige behandeling, maar meneer aan hierdie dinge moes u gedink het voordat u hierdie misdryf gepleeg het. He found that a suspended sentence would not be appropriate because if the court was to impose suspended sentences vir hierdie tipe van misdade dan kan die ander voornemende diewe dink hulle kan ook by plekke instap, hospitale se goeder steel en dan word hy gevang en kom voor die hof en kry n opgeskorte vonnis, hy stap eintlik n vry mens hieruit, want wat u hier gedoen het is eintlik baie, baie vermetel. After finding that a fine would not be appropriate, the magistrate held that because of the seriousness of the offence, but [s]onder om nou die misdaad en die gemeenskap se belange oor

3 3 te beklemtoon, the only appropriate sentence was one of imprisonment, despite the fact that the accused was a first offender. [6] In his reply to queries directed to him by Liebenburg J, he stated that he had taken the personal circumstances of the accused into account properly, that he had considered correctional supervision despite not mentioning it in his judgment and had rejected it as a sentencing option because of the value of the stolen items. He stated that what made the offence more serious was the fact that the accused stole the weed eater and accessories with a view to converting them into money, rather than to use them to earn money through work. Even if the accused had followed the latter path, however, the magistrate stated that he still would have regarded the offence as being too serious for correctional supervision. He re iterated that, in his view, a suspended sentence would be inappropriate because it would have no deterrent effect on potential offenders, but that, in any event, the offence was too serious for such an option to be followed. Finally, he stated that indien daar net na die persoonlike omstandighede van n beskuldigde gekyk word, niemand ooit na behore gestraf sal kan word nie, en daarom moet n balans gevind word tussen die faktore wat by vonnisoplegging oorweeg moet word. [7] The real issue is whether the magistrate achieved a proper balance of the factors that are to be taken into account by judicial officers when they sentence offenders. In this instance, I am of the view that the magistrate erred. He relegated to insignificance those personal circumstances that were before him and over emphasised the seriousness of the offence. I agree, in this respect, with Van Heerden J when, in S v Kwalase 1 (a case involving the review of a sentence of three years imprisonment, half of which was suspended, imposed on a 15 years and 11 months old youth with a previous conviction who had been convicted on a charge of robbery) she held: I am also of the view that the sentence imposed is too severe. In (2) SACR 135 (C), 141d g.

4 4 addition to the youth of the accused it must be borne in mind that the accused pleaded guilty and that the stolen property was immediately recovered by the police. Robbery is clearly a serious offence. However, while it is true that serious offences merit severe punishment, the Court must guard against an over eager imposition of exemplary sentences and must not over emphasise the gravity of the offence and the interests of the community at the expense of the interests and the personal circumstances of the particular offender. Every individual case must be judged on its own particular facts. The community expects that serious crimes will be punished, but also expects at the same time that mitigating circumstances will be taken into account and that the accused s particular position will be given thorough consideration. [8] The magistrate s rejection of correctional supervision as a sentence on account of the seriousness of the offence in the circumstances of this case is yet another irregularity. In the first place, he failed to deal with correctional supervision in his judgment, as he should have, because on the face of it, it was an obvious sentence to consider, especially when the accused had pertinently requested that he be sentenced to n buitekant straf and the magistrate had considered and rejected the option of a suspended sentence and a fine. I would, in these circumstances, have expected the magistrate to deal with correctional supervision expressly and thereby to show that he had truly considered it. His failure created the impression that he had, in fact, closed his mind to sentencing options other than imprisonment. 2 [9] Secondly, the magistrate took the view in his reply to Liebenburg J s queries that correctional supervision was inappropriate omdat die waarde van die gesteelde items hoog is naamlik R This is an incorrect approach because correctional supervision is a sentence that can be imposed 2 See S v Kotze 1994 (2) SACR 214 (O), 225i 226c.

5 5 for any offence, even serious ones, 3 has, in fact been imposed in cases of theft and fraud when amounts far in excess of R have been involved, 4 and can be a severe sentence achieving the object of deterrence. 5 [10] On account of these irregularities, this court is entitled to intervene. In the light of the limited facts on record, it is my view that the magistrate should not have sentenced the accused to a term of imprisonment. His age, the fact that he is a first offender, his circumstances of being unemployed and responsibility for his unemployed and ill mother, the opportunistic nature of the crime and the reason for its commission all are strong indications that a prison sentence was not appropriate. The accused has been in prison since his arrest on 6 October 2002 as he was apparently unable to pay the bail of R that was set. He was sentenced on 29 October He has thus spent some four months in prison. Little point would be served if the sentence was to be set aside, the matter remitted to the magistrate for him to call for a pre sentencing report (which would be essential for the purposes of determining whether the accused is a candidate for correctional supervision), the mitigation case to be heard again and sentence to be imposed again. In all likelihood, some months would elapse and this would prejudice the accused who, after all should not have been incarcerated in the first place. Instead of following that course, the immediate release of the accused has been ordered. [11] In the result, the sentence imposed on the accused on 29 October 2002 is set aside and replaced with a sentence of four months imprisonment antedated to 29 October See generally, S v R 1993 (1) SACR 209 (A), also reported at 1993 (1) SA 476 (A). See further Du Toit et al A Commentary on the Criminal Procedure Act Cape Town, Juta and Co: 1987, 28 10F 28 10H (revision service 28) and the cases there cited. 4 See Du Toit et al, op cit, 28 10H 28 10J (revision service 28) and the cases there cited. See in particular, S v Kruger 1995 (1) SACR 27 (A), in which the accused had stolen meat to the value of R from his employer, and S v Kasselman en n ander ) SACR 429 (T), in which two policemen had stolen R of which R had been recovered. 5 S v R supra, 221d 223b. See too Du Toit et al, op cit, 28 10E (revision service 28).

6 6 C. Plasket Acting Judge I agree J Pickering Judge