S v Demele (CA&R 153/2013) [2013] ZAECGHC 64 (5 June 2013)

S v Demele (CA&R 153/2013) [2013] ZAECGHC 64 (5 June 2013)

The magistrate imposed a fine of R30,000, with an alternative of 36 months imprisonment, and suspended a portion of the sentence. The accused's ability to pay such a large fine was not properly investigated, despite clear indications of financial hardship. The effect of the sentence was that the accused would inevitably serve a prison term, contrary to the magistrate's stated intention to avoid direct imprisonment. The High Court found the sentence to be disturbingly inappropriate and substituted it with a wholly suspended sentence, conditional on the accused not being convicted of a similar offence during the suspension period.

Citation
[2013] ZAECGHC 64
Parties
Respondent: The State; Applicant: Pikisile Demele
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
5 June 2013
Case Number
CA&R 153/2013
Procedural Posture
Review Application / High Court Review of Magistrate's Sentencing
Outcome
The sentence imposed by the magistrate is set aside and substituted with a wholly suspended sentence.
Judges
J M Roberson, C M Plasket
Legal Topics
Sentencing Principles, Housebreaking With Intent to Steal, Suspended Sentence, Ability to Pay Fine
Criminal Law Sentencing Principles Housebreaking With Intent to Steal Suspended Sentence Ability to Pay Fine

Case Brief

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Parties

The State

Respondent

Pikisile Demele

Applicant

Procedural Posture

Review Application / High Court Review of Magistrate's Sentencing

Legal Issues

  1. 1 Whether the fine imposed by the magistrate was appropriate given the accused's financial circumstances.
  2. 2 Whether the magistrate properly considered the accused's ability to pay the fine before imposing an alternative of imprisonment.
  3. 3 Whether the sentence should be substituted with a wholly suspended sentence.

Ratio Decidendi

The magistrate imposed a fine of R30,000, with an alternative of 36 months imprisonment, and suspended a portion of the sentence. The accused's ability to pay such a large fine was not properly investigated, despite clear indications of financial hardship. The effect of the sentence was that the accused would inevitably serve a prison term, contrary to the magistrate's stated intention to avoid direct imprisonment. The High Court found the sentence to be disturbingly inappropriate and substituted it with a wholly suspended sentence, conditional on the accused not being convicted of a similar offence during the suspension period.

Court Disposition

The sentence imposed by the magistrate is set aside and substituted with a wholly suspended sentence.

Orders

  • The sentence imposed by the magistrate is set aside and substituted as follows: The accused is sentenced to twelve (12) months’ imprisonment, suspended for three (3) years on condition that the accused is not convicted of housebreaking with intent to steal and theft, committed during the period of suspension.
  • The sentence is ante-dated to 21 February 2013.