Court name
High Court
Case name
S v Coetzee
Media neutral citation
[1994] NAHC 6
















W.H.
COETZ
EE
-
VS-
THE STATE
1994/05/1





Strydom,
j.p
.
et Frank,






CRIMINAL
PROCEDURE:











Sentence
- Factors applicable - Way in which defence was conducted not a
factor to be taken into consideration when determining appropriate
sentence.













w.h.coetzee


APPELLANT





versus




the
state


RESPONDENT











CORAM:


strydom,
j.p.
et
frank,
j.













Heard
on: 1994/05/16 Delivered on: 1994/05/16






judgment


strydom,
j.p.
:
The
appellant was convicted in the Magistrate's Court, Gobabis, of the
crime of theft and sentenced to three (3) years imprisonment. He
applied for and was granted a judge's certificate in respect of the
sentence imposed.






The
appellant, when he appeared in the Court below, pleaded not guilty.






The
Complainant testified that the accused on the day in question was
working for him in his yard. At a stage the daughter of the
complainant missed a wallet containing credit cards and some R3 00
cash. The Complainant stopped the taxi with which the appellant was
on his way to Epaku and after a body search the money and cards were
found in the pocket of the Appellant.









During
cross-examination of the Complainant the Appellant admitted the
theft. It further transpired that the Appellant gave his
co-operation and everything that was stolen was recovered. He also
apologized to the Complainant and asked his forgiveness. When the
Appellant testified he admitted the theft. His evidence however,
that he told the taxi driver to take him back to the Complainant so
that he could return the stolen goods cannot be accepted. In
mitigation the Appellant told the Court that he is married with
three children. He did not have any regular work and that he
attended school up to standard
8.
The
Appellant has four previous convictions which are not related to
theft or any crime involving dishonesty. These are two previous
convictions for possession of dagga, one for assault and one for
driving a motor vehicle with an excessive quantity of alcohol in his
blood namely a contravention of Section
140(2)(a)
of Ordinance
30
of
1967.
In
none of these instance was the Appellant sent to prison. He was
either given a suspended sentence or a fine or, in respect of the
assault charge, he was cautioned and discharged. The last offence
committed by the Appellant was in the beginning of
1989.






The
Magistrate availed himself of the opportunity to give reasons and
stated that he
inter
alia

considered the following factors:







"
(a) The personal circumstances of the accused and his family.




  1. The
    amount stolen.



  2. The
    frequent occurrence of crimes of this nature in
    Gobabis."







As
regards the demeanour of the Appellant the Court found that he did
not show remorse and that he wasted the time of the Court by not
pleading guilty and wanted to mislead the Court. Although the
previous convictions are not related to theft they showed that the
appellant had previous clashes with the law and that he did not want
to reform. The Magistrate further mentioned that he had often warned
that harsher sentences would be meted out to people committing
theft.









Mr
Mouton, who drew up the heads of argument and who was supposed to
appear
amicus
curiae

and is now replaced by Mr Heathcote, on behalf of the Appellant,
submitted that the Magistrate misdirected himself in various
respects and only paid lip service to the personal circumstances of
the Appellant. In any event, so counsel submitted, the Magistrate
did not exercise his discretion judicially as the sentence is in all
the circumstances too heavy.






Mr
Small, on behalf of the State, conceded that the sentence is not a
proper one and that the Court should in the circumstances interfere
therewith.








The
Court is indebted to both counsel for their assistance in this
matter.



The
crime of theft is a serious one and where prevalent the Court is
entitled to take sterner measures even to the extent of imposing
exemplary sentences. This does however not mean that a Court is
entitled to ignore the personal circumstances of a particular
accused and the other factors relevant to sentencing. See
S
v Khulu

1975(2) SA 518 (N). It is also correct that the Court can have
regard to previous convictions which are not related to the offence
for which the accused must be sentenced, but such convictions will
carry much less weight than a related previous conviction.






In
the present instance the Appellant was a first offender in regard to
a crime of which dishonesty was an element. The value of the goods
stolen was relatively low and everything was recovered. To impose in
these circumstances the maximum sentence which the Magistrate can,
under his jurisdiction, impose, is by itself proof that the
discretion exercised by the Court a
quo
was not judicially exercised. Even if the prevalence of the crime of
theft in this area is taken into consideration the sentence is in my
opinion so disturbingly inappropriate











"that
it can be said that the judicial discretion had not been properly
exercised warranting appellate interference".









See
S
v Rabie

1975(4) SA 855 (A) at 864.









I
agree with Counsel for the Appellant that the Magistrate
over-emphasized the deterrent effect of sentence at the cost of the
personal circumstances and other mitigating factors in favour of the
Appellant. Both counsel were also agreed that the Court a
quo
misdirected itself by considering as relevant to sentence that the
Appellant -











"wasted
the time of the Court by pleading not guilty while he knew that he
had committed the alleged offence. He wanted to mislead the
Court."






In
this regard Mr Small referred the Court to Article 12(1) (a) of the
Constitution. It is perhaps necessary to repeat what was stated in
R
v Klein

1942 TPD 263 at 266 in this regard, namely:











"The
manner in which the defence is conducted, even if it is immoderate
and mistaken and is culpable in that improper motives and purgery
are alleged however much one may disprove of it has nothing to do
with the crime or the circumstances in which the crime has been
committed and is in no way to be considered in arriving at the
penalty".






See
also
S
v K

1975(3) SA 446 at 451 D - H.






The
fact that an accused pleaded guilty may, in certain circumstances be
a mitigating factor. The fact that an accused did not plead guilty
is not an aggravating circumstance to be taken into account in the
determining of an appropriate sentence. Although the accused in this
instance pleaded not guilty he admitted having taken the stolen
articles with his very first question put in cross-examination. He
even illicited the fact that he apologized and asked for
forgiveness. The lie he told, namely, that he




still
wanted to return the money and cards, is so transparent that not even
a child would have been taken in by it.









In
all the circumstances this Court is entitled to interfere with the
sentence imposed by the Magistrate. Taking into consideration all the
circumstances and accepting that the crime of theft is prevalent in
the Gobabis area I am of the opinion that a sentence of one (1) year
imprisonment would be appropriate.









In
the result the appeal succeeds and the sentence of three (3) years
imprisonment is set aside and substituted with a sentence of one (1)
year imprisonment.




STRYDOM,
JUDGE PRESIDENT





I
agree










The
sentence is back-dated to the 3rd May 1993.