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South Africa Judgment

North Gauteng High Court, Pretoria

Venter v S (A686/15) [2016] ZAGPPHC 121 (29 March 2016)

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Research organized from the available case record

Source document

01

Holding and result

The appeal court found that the sentence of five years' direct imprisonment was unduly severe given the appellant's age, expression of remorse, guilty plea, and the absence of violence or damage in the commission of the offence. The court noted that the appellant was already serving a sentence for a similar offence and that the cumulative effect of both sentences would result in a total of nine years' imprisonment, which was disproportionate to the circumstances. The court held that the magistrate failed to give sufficient weight to the mitigating factors and the principle of concurrent sentencing. Accordingly, the appeal was upheld, and the sentence was reduced to two years' imprisonment, with one year suspended for two years on condition that the appellant is not convicted of an offence involving dishonesty during the suspension period.

Court disposition

Appeal upheld; sentence reduced.

Orders

  • The appeal is upheld.
  • The appellant's sentence is reduced to two years' imprisonment, one year of which is suspended for two years on condition that the appellant is not found guilty of an offence involving dishonesty.

02

Material facts

Parties

Marko Ludewikus Venter

Appellant

The State

Respondent

Amounts and remedies

  • Value of Stolen Washing Machine: ZAR 2,631

03

Procedural history

  1. Posture

    Criminal Appeal / Appeal Against Sentence

04

Questions and positions

Legal issues

Party arguments

Applicant
The appellant argued that the sentence of five years' direct imprisonment was unduly harsh, especially considering his age, expression of remorse, guilty plea, and the fact that he was already serving a sentence for a similar offence. He contended that the magistrate failed to adequately consider these mitigating factors and that the sentences should have been ordered to run concurrently.
Respondent
Counsel for the State conceded that the sentence of five years' direct imprisonment was on the heavier side and acknowledged that the appellant was already serving a four-year sentence for a similar offence. However, the State did not strongly oppose the appeal and did not provide substantial argument against reducing the sentence.

05

Court’s reasoning

  1. 01

    S v Zinn 1969 (2) SA 537 (A)

    Sentences should be proportionate to the circumstances of the offence and the offender, taking into account mitigating factors such as age, remorse, and prospects of rehabilitation.

  2. 02

    Section 280(2) of the Criminal Procedure Act 51 of 1977

    Where an accused is serving a sentence for a similar offence, the court should consider ordering sentences to run concurrently to avoid cumulative harshness.

06

Ratio, limits and disposition

Ratio decidendi

The appeal court found that the sentence of five years' direct imprisonment was unduly severe given the appellant's age, expression of remorse, guilty plea, and the absence of violence or damage in the commission of the offence. The court noted that the appellant was already serving a sentence for a similar offence and that the cumulative effect of both sentences would result in a total of nine years' imprisonment, which was disproportionate to the circumstances. The court held that the magistrate failed to give sufficient weight to the mitigating factors and the principle of concurrent sentencing. Accordingly, the appeal was upheld, and the sentence was reduced to two years' imprisonment, with one year suspended for two years on condition that the appellant is not convicted of an offence involving dishonesty during the suspension period.

Obiter and limits

  • The court observed that young offenders who show remorse and plead guilty should not be deprived of the opportunity to rehabilitate.
  • It was noted that the absence of violence and damage in the commission of the offence further mitigated the seriousness of the crime.

Court disposition

Appeal upheld; sentence reduced.

  • The appeal is upheld.
  • The appellant's sentence is reduced to two years' imprisonment, one year of which is suspended for two years on condition that the appellant is not found guilty of an offence involving dishonesty.

Source and reliance status

North Gauteng High Court, Pretoria

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Judgment reading view

Judgment text

The complete available source text.

Source document

North Gauteng High Court, Pretoria

Judgment

[2016] ZAGPPHC 121

IN

THE HIGH COURT OF SOUTH AFRICA

[GAUTENG DIVISION, PRETORIA]

CASE NO: A686/15

DATE: 29 MARCH 2016

MARKO LUDEWIKUS VENTER..........................................................................................Appellant

And

THE STATE...........................................................................................................................Respondent

JUDGMENT

SKOSANA AJ

[1] The appellant in this case has brought an appeal only against the sentence imposed on him by the judgment of the learned magistrate, Mr Le Roux.

[2] The appellant pleaded guilty and was found guilty of house breaking with intend to steal and theft. She was then sentenced to five years direct imprisonment.

[3] The relevant facts are that the appellant went to the property of one Anne Smith on 09 March 2015 at 15h00. He had gone to visit the complainant and discovered that there was no one at the house, he noticed that there was a washing machine in the garage and decided to steal it.

[4] He opened the garage door took out the machine and sold it at a nearby pawn shop. After being arrested, the machine was recovered from the pawnshop and returned to the complainant. The value of the machine was R2 631-00.

[5] The appellant was 21 years of age at the time of the commission of the offence, he was unmarried but had impregnated his girlfriend and had one previous conviction for a similar charge where he had been sentenced to 4 years imprisonment and had already started serving the sentence at the time of the judgment under consideration. 4 years’ imprisonment he received for the other offence was being served under correctional supervision in terms of section 276(1)(l) of the Criminal procedure Act no. 51 of 1997.

[6] It appears that after the appellant had been given the sentence of 5 years’ imprisonment, the correctional services informed him that the total number of years he has to serve is now 9 years and the correctional supervision has fallen away. In other words, he must serve 9 years direct imprisonment

[7] In paragraph 1.6 of her heads of argument, counsel for the State also regards the sentence of 5 years direct imprisonment to be uon the heavier side”. He also submits that the appellant was already serving a 4 year sentence on a similar charge but that does not seem to have played a significant role in the reasoning of the magistrate when imposing the 5 years imprisonment sentence.

[8] It seem to me that, though the circumstances of the previous similar conviction are unknown, they may either be similar or less severe than the circumstances of the present case. In fact, in the absence of information in this regard, one has to assume in favour of the appellant or give the appellant a benefit of doubt in this regard.

[9] Further there was a clear expression of remorse on the part of the appellant in that he not only pleaded guilty but disclosed all circumstances under which the offence was committed. He was also only 21 years of age at the time and in my view, he should not be completely deprived of the opportunity to repent or rehabilitate. It must also be noted that there was no force used in committing the offence and apparently no damage was caused either to the stolen item or through forced entry at the complainant’s house.

[10] In my view, it could not be said that the appellant was non-repentant in the light of the previous conviction. Such conviction clearly took place after the commission of the present offence. To me it seems appropriate to have ordered that the sentence in the present case or a portion thereof should run concurrently with the sentence imposed in the previous similar conviction.

[11] In the circumstances it is my view that the sentence of 5 years imprisonment is so severe that it warrants interference by this appeal court, taking into account that the appellant will otherwise have to serve a sentence of 9 years in total as indicated above.

[12] In the circumstances, I suggest that the following order be made:

[a] The appeal is upheld.

[b] The appellant’s sentence is reduced to 2 years imprisonment, one year of which he is suspended for two years on condition that the appellant is not found guilty of an offence involving dishonesty.

DT SKOSANA

Acting Judge of the High Court

I concur and it is so ordered.

N JANSE VAN

NIEWENHUIZEN

Judge of the High Court

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

S v Zinn 1969 (2) SA 537 (A)

Case cited

Criminal Procedure Act 51 of 1977

Legislation

Legislation referenced in the available case record.

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