APPEAL
JUDGMENT
STRYDOM, J.P.: This
is an appeal against sentence in
terms
of a judge's certificate issued by two judges of this Court. The
accused was convicted of housebreaking and theft of goods valued at
N$l 616.00. The accused pleaded guilty but after questioning by the
magistrate a plea of not guilty was recorded because the value of
the articles stolen was disputed. After evidence was led the accused
was convicted as charged. The sentence imposed by the magistrate was
one of three years imprisonment of which one year imprisonment was
suspended on the usual conditions.
At
the time of sentence the accused was a first offender of 3 8 years,
he is married with three children of whom two were at school at the
time. At the time the accused was also employed as a driver for
Langpad Transport and was earning
N$800.00
per month. He informed the Court that he could pay a fine of
N$300.00. It is common cause that the accused broke into the farm
store of his employer during the latter's absence from the farm. In
evidence the accused said that the crime was motivated by hunger
because the employer left the farm without properly providing for
his employees.
I
agree with Mr Miller for the State that this claim cannot be
accepted. Many of the items stolen such as the keyboard, soap,
ointment, etc were inedible. Although all the articles were
recovered the accused, after his arrest by the complainant, escaped
and took with him the keyboard valued at some N$l 300.00. It is
trite law that sentencing is preeminently the duty of the trial
Court and that the Court of Appeal will only interfere with the
exercise of such discretion in certain limited instances.
Mr
Coetzee who appeared amicus
curiae
for the accused and whom the Court wants to thank for his assistance
in this matter, submitted that the magistrate misdirected himself by
over-emphasizing the interest of society and the nature of the crime
at the expense of the personal circumstances of the accused.
A
reading of the reasons supplied by the magistrate shows that the
interest of society played an important role when the magistrate
considered sentence. There is no doubt that the magistrate
emphasized factors such as the deterrent effect of sentence to try
and curb in some way the spate of crimes that have become
commonplace in our society. The reasons, however, also demonstrate
that the magistrate was alive to the 'personal circumstances of the
accused and the fact that he was a first offender.
The
many reviews that this Court is dealing with every day and the
outcry from the society are all proof of the prevalence of crime and
more particularly crimes such as housebreaking and theft. Those who
commit this crime overlook nobody. No distinction is made between
the rich and the poor. All levels of society have fallen victim to
thieves and housebreakers alike. Whether we want to believe it or
not we are involved in a war against crime which at present shows no
sign of abating. The situation calls for exceptional measurements
and in this process the Courts play an important role. In this
regard the imposing of a prison sentence for housebreaking and
theft, even in the case of a first offender, has become more or less
the general rule. Because of the prevalence of the crime the shoe is
now on the other foot and it is only in exceptional circumstances
where a non-custodial sentence is imposed by the Courts.
Being
a first offender is in our present-day situation generally speaking
not such a circumstance. What I have said must not be seen as an
attempt to circumvent or to do away with the general principles of
sentencing in our law and more particularly the principle of
individualisation of punishment. It is only that the circumstances
justify that in sentencing the emphasis is now shifted more to
factors such as deterrence and even retribution in the sense of an
appropriate
punishment for the crime committed. It is only when Courts of Law
recognise this situation and act upon it that we will; together with
others such as the police and the vigilance and co-operation of the
community itself, become an effective tool in the combatting of
crimes such as housebreaking and theft.
Reverting
back to the present case. Although the sentence imposed can be
described as robust considering the fact that the accused was a
first offender with a family and the other factors relied upon by Mr
Coetzee, I find myself unable to agree that the sentence is one
which creates a sense of shock. Concerning the circumstances of the
particular case the imposition of a custodial sentence was, in my
opinion, appropriate. That in the circumstances the factor of
deterrence and retribution and public influence were brought more to
the fore and were particularly emphasised by the magistrate, can in
my opinion, not be faulted.
In
the result the appeal is dismissed.
S v Jacobs (CA 7.96) [1996] NAHC 3 (22 April 1996);