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Mazula v S (A484/11) [2011] ZAWCHC 536 (2 December 2011)

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JUDGMENT

LE GRANGE, J

The appellant in this matter after pleading guilty was convicted in the District of BellviIle on one count of theft. He was sentenced to a term of three years imprisonment of which 18 months was suspended for a period of five years under normal conditions.

The appellant, with leave of the court a quo, now appeals against the imposed sentence. The appellant's main ground of appeal is that the magistrate failed to properly consider his personal circumstances and over emphasized the seriousness of the offence and the interest of society. The basic governing principle concerning a decision by an appeal court regarding sentence is that punishment is pre-eminently a matter for the direct discretion of the trial court, and should be careful not to erode such discretion. Hence the further principle that sentence should only be interfered with if the discretion was not judicially and properly exercised. Put differently, the test here is here whether the sentence is vitiated by an irregularity or misdirection or is disturbingly inappropriate. In this regard see S v Rabie 1975(4) SA855 (A) at 857 d-f and S v Sadler 2000(1) SASV 331 (HHA) at 334 at para 6.

Stripped to its essentials therefore the enquiry in this appeal turns on the following questions, whether the sentence is vitiated by irregularity or misdirection or was the extent of the sentence disturbingly inappropriate. The magistrate, after considering the mitigating and aggravating circumstances and taking into account the interests of society, was of the view that the only suitable sentence in this case is one of direct imprisonment.

There is little doubt in my mind that the crime the appellant committed is very serious. What is aggravating in this instance is that the appellant was in a position of trust. The public on a daily basis make use of air transport. The majority of them are obliged to book their luggage in at the airport's departure terminals and expect their luggage to arrive safely at their point of arrivals and are therefore extremely vulnerable and at the mercy of people like the appellant. The theft of personal belongings will ordinarily create havoc and discomfort in travelling passengers. The Courts are therefore obliged to consider appropriate sentences and having regard to the well established guidelines on sentencing to discourage these types of theft.

Despite the aggravating factors in this case, the magistrate in my view, erred in overemphasizing these factors at the expense of the appellant's personal circumstances. Mercy is the hallmark of a civilised society, and should always be contained within a balanced and humane approach in considering an appropriate sentence.

The personal circumstances of the appellant can be summarised as follows. At the time of committing the offence, he was 21 years of age. He passed grade 10, and he is a first offender. The appellant was employed at Swiss Port as a luggage attendant and earned approximately R2 100 per month. He pleaded guilty to the crime of theft and admitted that he stole a camera to the value of R3 000 from the complainant's luggage at the airport. As a result of this offence, the appellant lost his job. He is presently employed on a casual basis at County Fair Chickens as a cleaner and earns approximately R60 per day.

The appellant pleaded guilty, he admitted taking the complainant's camera to the value of R3 000 out of an open bag. In pleading guilty the appellant did show some remorse for the offence he committed. The complainant's camera was recovered and no loss was suffered.

In my view, the magistrate in considering an appropriate sentence, failed to properly consider the element of mercy and to temper the sentence with the basic factors of letting the punishment fit the criminal, as well as the crime, and being fair to society. The imposed sentence, in my view, is disproportionate to the crime, interest of society and the appellant's personal circumstances. I am satisfied that this type of crime warrants an appropriate response by our courts, but consideration should have been given to correctional supervision in the form of the provisions of Section 276(1)(h) or (i) of the Criminal Procedure Act, Act 51 of 1977.

In the present instance, the appellant did spend a short period of time in prison before being released on bail pending this appeal. In view of this, the term of 18 months' imprisonment which is wholly suspended for a period of five years on certain conditions is, in my view, a more just and equitable sentence.

It follows that the APPEAL MUST SUCCEED. In the result the following order is proposed.

a) The SENTENCE IMPOSED BY THE MAGISTRATE IS SET ASIDE and substituted with the following;

b) 18 (EIGHTEEN) MONTHS OF IMPRISONMENT WHICH IS WHOLLY SUSPENDED FOR A PERIOD OF 5 (FIVE) YEARS on condition that the accused is not again convicted of theft or attempted to committed during the period of suspension.

LE GRANGE, J

I agree, and it is so ordered.

NDITA, J