JUDGMENT

(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

In the matter between:

ALFREDO VISSER							APPLICANT

and
THE STATE								RESPONDENT

The appellant in this case was found guilty in the regional court of Bredasdorp on 20 May 2008 on charges of housebreaking with the intent to steal and theft, in that during the period 19 December 2007 and 26 December 2007 and at or near number 3 Aster Avenue, Bredasdorp, he and his co-accused, Mr Jaco Dawids, accused number 1, broke into the home of Mr Peter John Appolis and stole one pair of shoes. The appellant was sentenced to 12 months imprisonment. He now appeals against the sentence.

The appellant pleaded guilty to the charge of housebreaking and theft and prepared a written plea in terms of section 112(2)   of  the   Criminal   Procedure  Act  51/1977. In   this statement the appellant contended that:

1. On 25 December 2007 he was walking with accused number 1, who told him to enter the premises of Mr Appolis, as it was not locked:

2.     Accused number 1 pushed the door open.

4. He gave the shoes to his uncle, but when the police came to look for the shoes, he went to fetch them and handed them over to the police.

On 12 June 2008 the appellant was granted leave to appeal against his sentence and was granted bail pending his appeal. The appellant did not testify in respect of the issue of sentence. He chose rather to address the Court regarding his personal circumstances, through his legal representative, as follows:

	
1.     The appellant was 18 years of age at the time of the crime.

3.	He resides with his mother and stepfather.
4	He completed Standard 8 at school

5.      He works at the vineyards at Strandveld Agri, for which he receives R70.00 per day.

10.    He has no previous convictions.

He did not own a firearm and was not planning to apply for the license to own a firearm.

There was no damage caused to the property of Mr Appolis and the shoes stolen by the appellant were returned to the complainant's possession.

rnative sentence.

I am satisfied that the magistrate did not consider the possibility of other sentencing options. Having regard to the paucity of information available to him at the time regarding the personal circumstances of the appellant, I am of the view that the magistrate ought, at the very least, to have requested the assistance of correctional officers, social workers or probation officers to help him decide on an appropriate sentence. The effect of the sentence handed down by the Trial Court is that the imprisonment of the appellant will seriously impact on his future reintegration into society.

The Trial Court found that the offence for which the appellant had been convicted was extremely prevalent in our time and that the Court had to take into account that the victims of housebreaking are becoming frustrated to the extent that they are prepared to take the law into their own hands. Notwithstanding the appellant's personal circumstances, the Court found that the only suitable sentence was direct imprisonment. Although the Trial Court held that the interests of justice dictate that the Court should not just hand out imprisonment sentences "left and right" this is precisely what the magistrate did. Undue weight was given to the seriousness of the offence and the interests of the community and accordingly the sentence is, in my view, flawed. The State correctly conceded that the sentence is  inappropriate and should be substituted with a lesser form of punishment.

of suspension.
BUIKMAN, AJ

I agree
ERASMUS, J