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FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

PARTIES:

MPHUMELELO MONK NONKONYANA APPELLANT

and

THE STATE RESPONDENT

• Case Number: CA&R 7/07

• High Court: EASTERN CAPE DIVISION

HEARD: 24/10/07

DATE DELIVERED: 25/10/07

JUDGE(S): PLASKET J

LEGAL REPRESENTATIVES -

Appearances

• For the Appellant(s): Mr C.A. Renaud,

• for the respondent(s): Ms H. Pienaar

Instructing attorneys:

• Appellant(s): Legal Aid Board

• Respondent(s): Director of Public Prosecutions, Grahamstown

CASE INFORMATION -

• Nature of proceedings : Appeal

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

CASE NO: CA&R 7/07

DATE HEARD: 24/10/07

DATE DELIVERED: 25/10/07

REPORTABLE

In the matter between:

MPHUMELELO MONK NONKONYANA APPELLANT

and

THE STATE RESPONDENT

______________________________________________________________

Appeal against sentence – The appellant had pleaded guilty to, and had been convicted of theft and fraud in that he had stolen a credit card and then used it to purchase goods such as clothes and a DVD player at six shops. The sentence of an effective three years imprisonment was set aside as the magistrate had overemphasised the seriousness of the offences at the expense of the appellant’s personal circumstances. These sentences were replaced with an effective sentence of two years imprisonment made subject to s 276(1)(i) of the Criminal Procedure Act 51 of 1977.

JUDGMENT

PLASKET J

[1] The appellant pleaded guilty, in the Magistrates Court, Port Elizabeth, to one count of theft and one of fraud. He was convicted on the basis of his plea. He was sentenced to 18 months imprisonment, of which six months was conditionally suspended for five years for the theft conviction and 24 months imprisonment for the fraud conviction, an effective sentence of three years imprisonment. He appeals against this sentence.

[2] In a statement in terms of s 112(2) of the Criminal Procedure Act 51 of 1977, the appellant admitted to having stolen the complainant’s credit card when he was in the complainant’s house doing tiling and building alterations. He also admitted having committed fraud by then using the credit card to buy goods valued at R5 079.81 from six shops in Central and North End in Port Elizabeth. These goods included clothing, a DVD player and goods purchased at a sports shop.

[3] The appellant is not a first offender. On 15 September 1998, he was convicted of theft and sentenced to five months imprisonment conditionally suspended for three years.

[4] In imposing sentence, the magistrate took this previous conviction into account. He also took into account that the complainant was the appellant’s ‘employer’, that he used the credit card to buy luxury items such as clothes and a DVD player, that the value of the items that the appellant bought fraudulently was R5 079.81 and that the goods were not recovered

[5] The magistrate also found that a measure of planning went into the fraud, in the sense that all of the purchases were made on one day in a short space of time, and that the appellant did not commit the offence out of need. He concluded:

‘In die lig van die beskuldigde se vorige vonnis vir ʼn oneerlikheidsmisdryf, die feit dat hy van sy werkgewer gesteel het wat as ʼn verswarende faktor moet geld, die feit dat hy luukse items gesteel het, is die beskuldigde gevonnis soos wat weerspieël word in die rekord. Die feit dat die goedere nie teruggevind is nie, het ook ʼn rol gespeel by vonnisoplegging.’

[6] As far as the appellant’s personal circumstances were concerned, his legal representative placed on record that he was 28 years old and single, that he had no children, that he had a standard 10 education, that he was self-employed and a carpenter, and that he lived with his parents.

[7] It is noteworthy that no mention is made by the magistrate in his reasons for sentence of any of these personal circumstances, all of which taken together, are broadly mitigatory in nature. It is of course so that the mere fact that no mention is made in a judgment of a particular factor does not mean automatically that it was not taken into account.

[8] It appears to me, however, that the magistrate has overemphasised the seriousness of the appellant’s offences at the expense of his personal circumstances. This has led him to impose sentences that cumulatively are excessive to such a degree that interference by this court is warranted.

[9] In respect of the theft conviction, it is clear that the credit card has, like the cheque forms stolen in S v Kwatsha 2004 (2) SACR 564 (E), little intrinsic value but its theft had the potential for great prejudice for the complainant. The fraud that the appellant then committed constituted that prejudice. In this sense, the theft and the fraud are connected. They are also connected by the fact that by taking the credit card and then using it the appellant committed a grave breach of trust: he had been engaged to do work, for which he was to be paid, in the complainant’s house and abused the trust placed in him when inside the house.

[10] I do not lose sight of the fact that, as Scott JA reiterated in S v Salcedo 2003 (1) SACR 324 (SCA), para 3, fraud is a ‘grave and ugly offence’ that has a ‘corrosive impact on society’.

[11] As in the Salcedo matter, the appellant in this matter, once he had stolen the credit card, went on a shopping spree, using the credit card six times during the course of one day. A further similarity between the cases is that in Salcedo all except the final purchase was not recovered, while in this case, none of the goods that the appellant purchased were recovered. In Salcedo the appellant was a first offender who was unemployed and an illegal immigrant who had found, rather than stolen, the credit card. He had been sentenced to a total of four and a half years imprisonment, made up of six months imprisonment for each occasion on which he used the card. That sentence was reduced to an effective sentence of 18 months imprisonment.

[12] In this case, I am of the view that the harshness of the cumulative effect of the sentences needs to be mitigated to take into account the fact that the appellant, apart from an eight year old conviction for theft, appears to be an economically active member of society and that the two offences are intimately connected. I propose to do this by reducing the sentence for both offences and by making these sentences subject to s 276(1)(i) of the Criminal Procedure Act.

[13] In my view, the sentence for the theft must be reduced to 12 months imprisonment of which six months is suspended on the conditions stated in the order that appears at the end of this judgment. The sentence for the fraud must be reduced from 24 months imprisonment to 18 months imprisonment. Both will be made subject to s 276(1)(i) of the Criminal Procedure Act. This will mean that the appellant is sentenced to an effective two years imprisonment and that he has the chance of being released earlier if the Commissioner considers him to suitable for correctional supervision, after a proper enquiry has been made.

The following order is made:

1. The appeal succeeds and the sentences imposed by the magistrate are set aside.

2. The following sentences replace the sentences that have been set aside:

   1. In respect of count 1, that of theft, the appellant is sentenced to 12 months imprisonment of which six months is suspended for five years on condition that the appellant is not convicted of theft committed during the period of suspension.

   2. In respect of count 2, that of fraud, the appellant is sentenced to 18 months imprisonment.

   3. The sentences in respect of both count 1 and count 2 are made subject to s 276(1)(i) of the Criminal Procedure Act 51 of 1971.

   4. The sentences set out above are back-dated to 4 August 2006

_________________

C. PLASKET

JUDGE OF THE HIGH COURT

I agree:

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J. SMITH

ACTING JUDGE OF THE HIGH COURT

APPEARANCES:

For the appellant: Mr C.A. Renaud, instructed by the Legal Aid Board

For the State: Ms H. Pienaar of the Office of the Director of Public Prosecutions, Grahamstown

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