CHEDA J: This appeal was
heard on 14 February 2011 and the following order was granted:
''The appeal succeeds to the
extent that the sentence of 5 years imprisonment of which 1½ years imprisonment was suspended on the usual
conditions imposed on the 18/5/10 be and is hereby set aside and is substituted
by the following:
2 years imprisonment of which
1 year imprisonment is suspended for 5 years on condition appellant does not
during that period commit any offence of which unlawful entry and/or dishonesty
is an element for which upon conviction is sentenced to imprisonment without
option of a fine''.
Effective: 1 year imprisonment
We undertook to give full reasons for the said decision. This judgment contains the said reasons. Appellant aged 19 at the time, together with
his three co-accused were charged with one count of unlawful entry and another
of theft. They pleaded guilty, were duly
convicted and sentenced as follows:
''Each accused persons count
(i) 2 years imprisonment. Count (ii) 3
years imprisonment, of the 5 years 1½ years is suspended for each accused
person for 3 years on condition that each within that period does not commit
any offence involving unlawful entry into premises/ dishonesty as an element
for which upon conviction. He is
sentenced to imprisonment without the option of a fine''.
The allegations against
them is that on the 16 May 2010 they broke into Eagle supermarket and stole an
assortment of groceries, R5 250 and $375 cash. Of the total goods stolen, $200,
R4 213-00 and all groceries were recovered.
It is appellant's argument
through his legal representative, Mr Khumalo that there was a misdirection by
the court a quo by its failure to
impose a non-custodial sentence in this matter.
His argument is premised on the ground that the trial magistrate should
have imposed a fine or community service.
It is a settled principle of our law that the appeal court will not
normally interfere with the sentence of a court a-quo unless the sentence imposed is manifestly excessive so as to
induce a sense of shock or is vitiated by irregularity or misdirection, see S v Ramushu SC 25/93. The fact that the appeal court would have
passed a different sentence is not good enough reason to justify the
substitution of a trial court's sentence.
The first question the court will ask is, whether or not the sentence
was in compliance with the general principles regarding sentence. To demonstrate that the court's approach is
not light, even if it is viewed as severe than that which would have been
imposed by the appeal court sitting as a court of first instance, the appeal court
will not interfere with it in the absence of it being manifestly excessive,
irregular or misdirected.
It, therefore, stands
to reason that the sentence must be such that it shakes the conscience of a
reasonable man. Count 2 is actually the
continuation of section 131 (1) of the Act, that is, the unlawful entry, of
which sub-section reads:
(2) For the purposes of paragraph (a) of sub-section (1) the crime of
unlawful entry into premises is committed in aggravating circumstances if, on
the circumstances on which the crime is committed, the convicted person-
(a) ---
(b) ---
(c) ---
(d) ---
(e) committed or intended to commit some other
crime.
Appellant committed this offence in aggravated circumstances as premised
under subsection 2 of the said act.
Appellant, though young
was in gainful employment, therefore, this offence was out of greed than
need. Further, despite his age he
engaged himself in an enterprise which is generally of adult domain and /
practice. He has been sailing too close
to the wind. His conduct therefore,
removes him from the non-custodial sentence category.
It is for that those
reasons that the appeal succeeded.
Ndou J ......................................
I agree
