South Africa: High Courts - Gauteng

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

Case No: A346/2007

High Court Ref.: 206

In the matter between:

THE STATE

and

SITHABISO PHUTI AND OTHERS Accused

REVIEW

VILAKAZI AJ:

1. This matter came before me by way of automate review.

2. The accuseds all females aged between 20 and 24were convicted of theft and sentenced as follows

Accused 1: 6 months imprisonment Accused 2: 24 months imprisonment Accused 3: 20 months imprisonment,

3. After perusing the record, I requested the office of the DPP to comment on the sentences imposed on the accuseds, in particular accuseds 2 and 3. The office of the DPP in the person of Stale Advocate Senoge responded and furnished me with his comments which were indeed poignant.

4. The fads of the matter are briefly that on or about the 29th March 2007 and at Checker's Hyper Van Der Biglpark the accuseds did unlawfully and intentionally still cosmetics valued at R 922.59. The accused pleaded guilty to the offence and were all legally unrepresented. After questioning by the magistrate a verdict of guilty was retained in respect of all 3.

5. In mitigation accused 1 stated that she was 21 years of age, unmarried
and exectant at the time of conviction and sentence. She was looking
after a sibling and a aunt who live in Natal, both her parents were
deceased, she does piece jobs She has two previous convictions

6 Accused 2 stated that she was 24 years of age, unemployed and has two children She lives with 1 child who was presently attending creche and the other lives with her mother She survives on state's grant. Her mother lives In Everton, the father of one child lives in Natal but visits his child from time to time. She has 6 previous convictions of theft.

7. Accused 3 is 20 years of age. She has a 2-year. She lives with her brother and sister as well as her minor child. She unmarried and unemployed. She asked the court for forgiveness.

8. In passing sentence, the magistrate pointed out that the value of the good stolen was negligible and that they committed the offence purely out of greed. However the magistrate overemphasised the interest of society, in particular the business community, as well as the gravity of the offence. He further emphasised their previous convictions and remarked that

'Not one of you has taken the chances offered by the court, in the past to you, at heart and stop stealing. And the sentences imposed upon to you being suspended sentences and small amounts of admissions of guilt fines and that just gave the impression that this is ok, I am getting away with it.'

He further said that'

'The court emphatically tells you today that you have extended your welcome in the courts by getting away with what you are doing; the buck stops hare today, which includes the mercy that has been overextended to you. The Only suitable sentence today for all 3 of you is direct imprisonment due to your previous convictions

9. In his comments Mr. Senogke argued that the magistrate gave proper and adequate consideration to the triad as set out in Zinn 1969 (2) SA E37 (A) in determining the terms of direct imprisonment. He also agreed with the magistrate that the courts have to act firmly in order to combat escalating levels of crimes and also emphasised the need to protect society from wanton criminals who show complete disregard and disrespect for law and order. He conceded that virtue of the previous convictions of accuseds 2 and 3 the magistrate could not resist the temptation of imposing direct imprisonment However, he conceded in the light of the disparity in the sentences imposed on accuseds 2 and 3 whose degree of participation in the commission of the crime was the same, it was perhaps appropriate that the sentence imposed in respect of accused 2 be interfered with He suggested that the sentence imposed on accused 2 be set aside and substituted with the sentence of 12 months imprisonment.

10. The Court agrees Mr Senogke, however the Court is of the view that there is need for the rehabilitation and reformation of accuseds 2 and 3 and that a sentence in terms of s276(h)(1) subject to appropriate conditions and coupled with a suspended sentence might have the desired rehabilitative and deterrent effect. I propose to make the following order:

1. Accused: Conviction and sentence confirmed,

1. Accuseds 2 & 3: conviction is confirmed.

2. Sentences of 20 and 24 months are set aside and substituted with the following; In terms of s276(h)(1) each of accused is sentenced to 3 years of which 2 years is suspended for 5 years on condition that accuseds are not convicted of theft committed during the period of suspension.

3. In addition it is ordered that accused 2 & 3: