S v Morris (CA 39/10) [2011] ZANWHC 39 (26 May 2011)
- Citation
- [2011] ZANWHC 39
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North West High Court, Mafikeng
- Panel
- A A Landman, R D Hendricks
- Case number
- CA 39/10
More details
- Court
- North West High Court, Mafikeng
- Panel
- A A Landman, R D Hendricks
- Case number
- CA 39/10
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the trial court's sentence of eighteen years imprisonment, with nine years to be served consecutively after the appellant's current sentence, was excessive and shockingly inappropriate. The respondent conceded that the sentence was imposed without mercy and was vitiated by anger. The appellate court determined that a sentence of six years imprisonment, to be served consecutively after the current fifteen-year sentence, would be more appropriate given the circumstances, including the appellant's guilty plea, age, family situation, and the partial recovery of stolen goods.
Court disposition
Appeal upheld. Sentence altered.
Orders
- The appeal is upheld.
- The sentence is altered to six years imprisonment, to run consecutively after the sentence of fifteen years imprisonment which the appellant is currently serving.
02
Material facts
Parties
Mohammed Joseph Morris
Appellant Counsel: Adv SkibiThe State
Respondent Counsel: Adv RasakanyaAmounts and remedies
- Total Market Value of Stolen Items: ZAR 10,230
- Value of Goods Recovered: ZAR 8,060
03
Procedural history
Posture
Criminal Appeal / Appeal Against Sentence
04
Questions and positions
Legal issues
- 01
Whether the conviction for housebreaking with intent to steal and theft was proper.
- 02
Whether the sentence imposed by the trial court was appropriate and reasonable.
- 03
Whether the appellate court should interfere with the sentence imposed.
Party arguments
- Applicant
- The appellant, through Adv Skibi, argued that although a direct imprisonment sentence was appropriate due to previous convictions, the sentence of eighteen years imprisonment was shockingly inappropriate and induced a sense of shock. He submitted that the trial court's sentence was excessive and that this court should intervene.
- Respondent
- Adv Rasakanya for the respondent acknowledged the seriousness and prevalence of housebreaking with intent to steal and theft, noting the public outcry for severe sentences. However, she conceded that the sentence imposed by the trial court was vitiated by anger and lacked mercy, and agreed that a high but not harsh sentence would be more appropriate.
05
Court’s reasoning
Legal principles
- 01
S v Obisi 2005 (2) SACR 350 (W)
An appellate court may only interfere with a sentence if the trial court did not exercise its discretion properly and reasonably, or if the sentence is manifestly inappropriate and induces a sense of shock.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the trial court's sentence of eighteen years imprisonment, with nine years to be served consecutively after the appellant's current sentence, was excessive and shockingly inappropriate. The respondent conceded that the sentence was imposed without mercy and was vitiated by anger. The appellate court determined that a sentence of six years imprisonment, to be served consecutively after the current fifteen-year sentence, would be more appropriate given the circumstances, including the appellant's guilty plea, age, family situation, and the partial recovery of stolen goods.
Obiter and limits
- The prevalence of housebreaking and theft in South Africa requires courts to impose sentences that reflect the seriousness of the offence, but sentences must not be harsh to the point of being unjust.
- Victims' reluctance to leave their homes unguarded or to purchase valuable property is a consequence of the high incidence of such crimes.
Court disposition
Appeal upheld. Sentence altered.
- The appeal is upheld.
- The sentence is altered to six years imprisonment, to run consecutively after the sentence of fifteen years imprisonment which the appellant is currently serving.
Source and reliance status
North West High Court, Mafikeng
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North West High Court, Mafikeng
Judgment
IN THE NORTH
WEST HIGH COURT
MAFIKENG
CASE NO.: CA 39/10
In the matter between:
MOHAMMED JOSEPH
MORRIS …..................................................................APPELLANT
and
THE STATE …................................................................................................RESPONDENT
CRIMINAL APPEAL
HENDRICKS J &
LANDMAN J
DATE OF HEARING : 13 MAY 2011
DATE OF JUDGMENT : 26 MAY 2011
FOR THE APPELLANT : ADV SKIBI
FOR THE RESPONDENT : ADV RASAKANYA
JUDGMENT
LANDMAN J:
[1] The appellant and one Zain Gail were charged with the offence of housebreaking with intent to steal and theft and were arraigned for trial in the Regional Court for the Regional Division of Lichtenburg.
[2] On 16 March 2009 the appellant pleaded guilty to the offence of housebreaking with intent to steal and theft. There was a separation of trials. The appellant was sentenced to eighteen (18) years imprisonment. Nine (9) years of the sentence were ordered to run concurrently with the sentence of fifteen (15) years which the appellant was serving. The remaining nine (9) years were to be served consecutively after the expiration of the fifteen (15) years imprisonment.
[3] During the hearing I inquired from Mr Skibi whether the conviction of housebreaking was in order. The plea statement set out that the appellant and his co-accused spotted an open window and climbed into the house. Mr Skibi submitted that if this court was not satisfied about the conviction we could resort to the inherent power of this court to alter the conviction. I am, however, satisfied that the appellant was, in spite of that part of the plea statement to which I have alluded, properly convicted. I say so because of the general tenor of the plea statement, the reference in the statement to a “breaking”, and the fact that the appellant was represented by a legal representative in the Regional Court who drafted the plea statement and appeared on behalf of the appellant.
[4] I turn to the appeal on sentence serves before us with leave of this court.
[5] The test, as regards an appeal against sentence, is not whether the appellate court would have imposed another punishment, but whether or not the trial court exercised its discretion properly and reasonably in imposing the sentence which it did. A discretion which is not based on a substantial misdirection, nor manifestly inappropriate, and which does not induce a sense of shock will have been exercised judiciously. See S v Obisi 2005 (2) SACR 350 (W).
[6] The following facts are relevant to sentence:
(a) The appellant and his co-accused broke into the house of Sharleen Mangadi and took items listed in the charge sheet with a total market value of R10 230.00. Goods to the value of R8 060.00 were recovered.
(b) The accused is 33 years old.
(c) He is married with two children.
(d) He passed grade twelve (12) at school.
(e) He has pleaded guilty to the charge.
(f) The accused is not a first offender.
(g) The complainant suffered a loss as a result of the incident.
[7] Mr Skibi submitted that:
(a) although the appropriate sentence could be one of direct imprisonment (because of the appellant’s of previous convictions) a sentence of 18 (eighteen) years imprisonment induces a sense of shock; and
(b) the sentence imposed by the court a quo is shockingly inappropriate and this court should interfere.
[8] Ms Rasakanya submitted that it is correct that innocent victims nowadays are reluctant to leave their houses unguarded or to buy valuable property because of criminals who break into their homes and steal their property. If sentence for serious crimes are lenient, the administration of justice may fall into disrepute and the injured persons may be inclined to take the law into their own hand.
[9] However, she submitted that although the offence of housebreaking with intent to steal and theft is very serious and prevalent in the Republic, and though there is a public outcry that perpetrators convicted of these offences should receive a high but not harsh sentence, the respondent concedes that the sentence which the trial court imposed was “vitiated with anger and without mercy”.
[10] The concession is well made. In my view a sentence even a sentence of 9 (nine) years, which it is intended the appellant must serve, is too harsh. A sentence of 6 (six) years imprisonment which must be served after the expiry of the appellant’s current sentence would be more appropriate.
[11] In the result I would:
1. Uphold the appeal.
2. Alter the sentence to read:
“Six (6) years imprisonment which is to run consecutively after the sentence of 15 (fifteen) years imprisonment which the appellant is currently serving.”
A A LANDMAN
JUDGE OF THE
HIGH COURT
I concur
R D HENDRICKS
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