IN THE HIGH COURT OF SOUTH AFRICA

In the matter between: 
DARRYL MULLER 
versus 
THE STATE

JUDGMENT

This is an appeal against sentence only imposed on the appellant in the Regional Court for the division Western Cape held at Beilville.

The sentence imposed arises out of conviction of the appellant at the Magistrate's Court, Beilville, on 11 December 2007, on two counts of theft, which the State alleged were committed at Sonstraal Super Spar, Durbanville, on 8 July 2003 and on 16 July 2004.

After conviction, the magistrate who presided at trial became of the view that in view of the appellant's previous convictions, the matter was of such a nature and magnitude that it warranted punishment in excess of his jurisdiction. In terms of Section 116 of the Criminal Procedure Act 51/77, the matter was then referred to the Regional Court for consideration and imposition of an appropriate sentence. The appellant was subsequently sentenced to five years imprisonment, both counts having been taken as one for purposes of sentence. In addition to the sentence so imposed, the appellant was warned in terms of section 286 of the Criminal Procedure Act.

convicted.

I shall now proceed to determine if there is merit in the appellant's contention.

It is, of course, trite law that a matter of sentence is always a matter which falls squarely within the discretion of the presiding judicial officer. A court of appeal will rarely, if ever, interfere with the exercise of such a discretion. It is only in those rare instances where the presiding judicial officer either has exercised his or her discretion injudiciously or has misdirected himself or herself, or where the presiding judicial officer has committed a material irregularity that a court of appeal will interfere with the exercise of such a discretion.

The magistrate ostensibly became of the view that the appellant could not be rehabilitated without imposition of a long-term imprisonment. In this regard I disagree. In my view, the element of warning in the sentence he imposed would not only act as a further deterrent, but could also well achieve the object striven for by ordering that the sentences run concurrently as opposed to a fong term of imprisonment as the magistrate seems to suggest in his judgment.

In view of what I have stated, I am of the view that there is justification to interfere with the magistrate's exercise of his discretion to the extent that the sentence of five years imprisonment imposed should be ordered to run concurrently with the sentences which the appellant was serving at the time of imposition of sentence in the current matter.

In the result, therefore, I would propose the following order, namely:-
1.	
2.	
3.	

It is so ordered.

I agree.