Dlamini v S (A697/2012) [2014] ZAGPPHC 203 (5 February 2014)
The appeal court found that the trial court did not misdirect itself in any material respect. The appellant's substantial history of previous convictions, commission of the offence while under suspension and correctional supervision, and lack of remorse were aggravating factors justifying the sentence imposed. The...
Source-derived case information.
- Citation
- [2014] ZAGPPHC 203
- Parties
- Appellant: Mduduzi Dlamini; Respondent: The State
- Court
- North Gauteng High Court, Pretoria
- Jurisdiction
- South Africa
- Judgment Date
- 5 February 2014
- Case Number
- A697/2012
- Procedural Posture
- Criminal Appeal / Appeal Against Sentence
- Outcome
- Appeal dismissed.
- Judges
- C Cambanis, K E Matojane
- Legal Topics
- Housebreaking With Intent to Steal, Sentencing Principles, Aggravating Factors, Remorse, Previous Convictions
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mduduzi Dlamini
Appellant
The State
Respondent
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Legal Issues
- 1 Whether the sentence imposed by the trial court was startlingly inappropriate or induced a sense of shock.
- 2 Whether the trial court misdirected itself by failing to consider aggravating factors related to previous convictions and periods of suspension.
- 3 Whether the appellant established any grounds for interference with the sentence on appeal.
Ratio Decidendi
The appeal court found that the trial court did not misdirect itself in any material respect. The appellant's substantial history of previous convictions, commission of the offence while under suspension and correctional supervision, and lack of remorse were aggravating factors justifying the sentence imposed. The appellant failed to demonstrate that the sentence was startlingly inappropriate or induced a sense of shock. The court held that the circumstances of the cited cases were materially different and did not provide a basis for interference. Accordingly, the appeal was dismissed.
Court Disposition
Appeal dismissed.
Orders
- The appeal is dismissed.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG, PRETORIA)
CASE NO: A697/2012
DATE: 5 FEBRUARY 2014
NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
In the master between:
MDUDUZI DLAMINI……………………………………………………………Appellant
and
THE STATE…………………………………………………………………….Respondent
JUDGMENT
CAMBANIS AJ
[1] This is a criminal appeal against sentence only, the appellant having pleaded guilty to the charge of housebreaking with the intent to steal and theft committed on the 4th Auqust 2011. The court convicted him of this charge.
[2] Appellant was initially charged with another person but their trials were separated on 24th January 2011 when Appellant elected to plead guilty to the charge and submitted his statement in terms of section 112 (2) of the Criminal Procedure Act no 51 of 1977.
[3] Appellant admitted that he together with his friends broke a door, gained entry into the home of Ms. Yvette Ali and stole spare keys of a motor vehicle, one SAMUNG- DVD player, T-shirts, one HP laptop and a Sony DIGITAL Camera. They shared the stolen property amongst themselves. He does not name those persons nor does he disclose how the stolen items were divided up amongst themselves. He does not say how many friends were involved nor does he provide the names of the other people involved. In short, the Appellant, did nothing to assist the police in investigating this crime any further which in my view indicates that he does not have any remorse for having committed this crime. This is an aggravating factor.
[4] At the sentencing stage of the trial, the State proved six previous convictions for house breaking, one conviction for possession of reasonably suspected stolen property and one conviction of theft. He was twice previously declared unfit to possess a firearm. His history of previous convictions constitutes another aggravating factor.
[5] A perusal of his previous convictions reveals that the appellant was still on suspension until 9 November 2012 on the theft charge and still under correctional supervision until 9 October 2012 at the time that he committed the crime under discussion. This clearly did not in any way whatsoever deter the appellant from engaging once again in this criminal conduct.
[6] The trial court failed to consider this aspect when deciding an appropriate sentence and thus failed to consider the additional terms of imprisonment that ought to have come into effect once the appellant was again convicted during the periods of suspension on his previous convictions.
[7] The appellant did not call any witnesses in mitigation of sentence nor did he testify on his own behalf. His personal circumstances were placed on record by his legal representative, namely that he is single, he has two (2) children and a pregnant girlfriend at the time of sentence. He gained employment as a carpenter two months before his trial, he left school in standard 8 and was the bread winner.
[8] In considering whether to interfere with sentence on appeal, the Court of Appeal is mindful of established legal precedent that an Appeal Court will not lightly interfere with the lower court’s decision. It will only do so where the sentence imposes a sense of shock and is startlingly inappropriate or where there is a clear case of misdirection.
[9] The only possible misdirection by the lower court was to ignore further aggravating factors as already mentioned in paragraphs 5 and 6 above.
[10] This court was referred to a number of cases in which accused persons received lesser sentences for the offence of housebreaking. A reading of these cases reveals that the circumstances and personal history set out in those cases are remarkably different to the present case. They do not provide any useful guidance nor do they show that this sentence is inconsistent with sentences handed down by the court for the same offence.
[11] The Appellant has failed to persuade this court that any misdirection has taken place. He has also failed to establish that the sentence induces a sense of shock or that it is inappropriate.
[12] The court makes the following order:
1. The appeal is dismissed.
C CAMBANIS
ACTING JUDGE OF THE HIGH COURT
I agree
K E MATOJANE
JUDGE OF THE HIGH COURT
DATE OF HEARING : 9 SEPTEMBER 2013 DATE OF DELIVERY
FOR THE APPLICANT: MR J VAN ROOYEN (Attorney)
INSTRUCTED BY : PRETORIA JUSTICE CENTRE
FOR THE RESPONDENT : ADV S R SIBARA
INSTRUCTED BY : DIRECTOR OF PUBLIC PROSECUTIONS,
PRETORIA