IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE NUMBER: A417/2010
DATE:  15 OCTOBER 2010
In the matter between: 

and

LE GRANGE. J:

The definition of section 36 provides as follows:-

"Any person who is found in possession of any goods, other than stock or produce as defined in section 13 of the Stock Theft Act 26 of 1923, in regard to which there is reasonable suspicion that they have been stolen and is unable to give a satisfactory account of such possession, shall be guilty of an offence and liable on conviction to the penalties which may be imposed on a conviction of theft."

The following relevant facts were recorded in the plea-explanation of the first appellant, and I refer to paragraph 4 and 5 of his written plea-explanation.

"4.       Ek erken dat ek op 29 November 2009 en te St Helena,  Calitzdorp, in die distrik van Calitzdorp, wederregtelik en opsetlik in besit was van gesteelde goedere, te wete n laptop, vir welke besit ek nie in staat was om voldoende rekenskap te gee nie.
5. Die volgende het gebeur. Christiano Plaatjies het die skootrekenaar die betrokke dag daar gebring en my gevra om dit vir horn te verkoop. Alhoewel ek nie horn gevra het waar hy dit gekry nie. het ek geweet dat hy dit iewers moes gesteel het. Dit was dan ook die rede hoekom ek nie vir horn gevra het nie."

In my view, the admissions tendered by the first appellant, satisfied  essential   requirements  of  section   36.     The  first appellant admits that he was found in possession of the laptop He also admits that second appellant brought the laptop to his

Returning to the appeal against sentence. The first appellant, at the time of committing the offence, was 15 and 16 years old when sentenced. He resides with his mother and her partner He is the second eldest of five children and the family survives on the income of the mother, who earns approximately R250.00 per month. The appellant has six previous convictions, of which three are relevant, being housebreaking with the intent to steal and theft. The probation officer's report stated the following:

"Met inagneming van die SAP 69 van die beskuldigde. was hy reeds 12 jaar oud to hy by misdaad betrokke geraak het. Hy het reeds ses vorige veroordelings, maar nooit was daar oorweging gebied aan die verwysing van 'n jeugsorgsentrum om sodoende die beskuldigde se sterk punte uit te bou nie, ten einde positiewe gedragsverandering te weeg te bring. As daar gelet word na die datums wanneer die beskuldigde misdade gepleeg het, was dit ongeveer een jaar uitmekaar. Dit is 'n baie duidelike aanduiding dat die beskuldigde rehabiliteerbaar is in die gemeenskap met die nodige ondersteuning. Hy is nie n geharde kriminele nie en is ook geen gevaar vir die gemeenskap nie. Die beskuldigde is huidiglik 16 jaar oud en het 'n baie groot akademiese agterstand, dus sal die verwysing na n jeugsorgsentrum nie in die beskuldigde se guns tel nie. Vonnisopsie waaraan oorweging geskenk word is die van 'n opgeskorte vonnis, aangesien die beskuldigde nie n eerste oortreder is nie. Hy kan vir rehabilitasie inskakel by die lewensvaardigheidsprogramme, onder leiding van n assistant proefbeampte."

A sentence in the form of correctional supervision in terms of the provision of section 276(1)(h) of the Criminal Procedure Act, would have been a more appropriate sentence in the circumstances of this case. The first appellant is, however, in prison for almost 10 months to date. Taking into account all the relevant factors pertaining to sentence, I am of the view that a more just and equitable sentence is a term of 18 months imprisonment, of which a portion is suspended for a period on certain conditions.

With regard to the second appellant, his plea of guilty was essentially that he was under the influence of drugs when committing the offence. The second appellant's personal circumstances are as follows. He was 16 at the time of committing the offence and at date of sentence. 17 years old He is the eldest of two children and resides with his mother. It appears that his negative behaviour stems from the poor conditions at home and the absence of a father figure. It is apparent from the probation officer's report that the second appellant does not have a good relationship with his mother The appellant has a scholastic achievement of Grade 7. The appellant is dependent upon his mother for his basic needs and the only source of income is the R240.00 child's grant she receives in respect of the second appellant's younger sister The second appellant has two relevant previous convictions The probation officer recommended that he was capable of rehabilitation within the community, provided he has the necessary support and recommended that a suspended sentence be considered.

The aggravating factors in this matter are that the value of the items that the appellant took, being the laptop and the DVD player, amounted to R5 600,00. The complainant's privacy was invaded. The prevalence of such offences occurs on a regular basis, it appears, in the district of Calitzdorp, and it appears that the appellant's personal circumstances, in particular his previous convictions, are also an aggravating factor. It is true that serious offences merit severe punishment and that the community expects offenders to be punished, but the community also expects at the same time that mitigating circumstances will be taken into account and that an offender's particular position will be given thorough consideration.

With regard to the second appellant, I am also of the view that a sentence, in the form of correctional supervisions in terms of the provisions of section 276(1)(h) of the Criminal Procedure Act would have been a more appropriate sentence, having regards to the fact of this case. The second appellant is also in prison for almost 10 months to date. Taking into account all the relevant factors pertaining to sentence, I am of the view that a more just and equitable sentence is a term of 18 months imprisonment, of which a portion is suspended for a period on certain conditions. It follows that the appeal against the sentence must succeed.

In the result the following order is made:-
(a) The convictions of both appellants are confirmed
(b) The appeal against sentence succeeds and the opposed sentence is set aside and substituted with the following.

I agree.