IN THE HIGH COURT OF SOUTH AFRICA - saflii

IN THE HIGH COURT OF SOUTH AFRICA(EASTERN CAPE HIGH COURT: MTHATHA)REVIEW CASE NO : 214107In the matter betweenTHE STATEAndZILINDILE MADUNAREVIEW JUDGMENTNHLANGULELA J :[1] This matter comes before this Court on automatic review in terms of s304 of the Criminal Procedure Act No. 51 of 1977.[2] On 09 November I found that a sentence of six months imprisonmentimposed for the crimes of housebreaking with intent to steal and theft was

2inappropriate, and therefore not in accordance with justice. The query Iraised was the following:1. Is the sentence of imprisonment not disproportionateto the crimes of which the accused was convicted.?2. Should the following factors not have been adequatereasons to impose a non-custodial sentence, namely:(a)(b)(c)(d)(e)(f)(g)(h)(i)First offendership.Show of genuine remorse by pleading guilty.Recovery of groceries.Engagement into reconcilliation betweenfamilies.Steps taken on behalf of the accused tocompensate for lost goods (morvite and eggs).Toiletries lost were neither identified norvaluated.Groceries lost were neither identified norvaluated.The cellphone and DVD unit were not stolenby the accused.Housebreaking was mitigated by absence ofdamages.(j) Money lost could not have been R600,00because it was not quantified. See page 6,lines 12 – 13 of the record.(k)(l)(m)That the accused had a newly born child is amitigating factor rather than an aggravatingfactor.There was a possibility, expressed by thesentencing court at page 23, lines 12 – 17, thata fine, could be paid by the mother of theaccused.There is no evidence to suggest that theaccused is not a candidate for rehabilitation.3. Please give comments on the above factors whichare relevant to sentence.

3[3] In essence I was of the view that a non-custodial sentence should havebeen imposed.[4] The learned magistrate replied to the query in the following terms:“ In response to the query to by the HonourableJudge:In imposing of sentence the court took into accountthe seriousness of the offence.The court also noted that the relationship between theparties is a close and personal they are uncle andnephew.Court further took stock of the fact that accusedplanned the offence well knowing he had access toinformation of the complaints movement.Court does consider that other forms of punishmentsuch as sec 276 punishment could be considered butwas found guilty of 2 offence House breakingand theft,There is lastly the aspect of the offence being veryprevalent in our district.With regard to the plea with respect accused seemedto put up a defence.

5accused.Nevertheless, the little advantage of two months remainingunserved could still be given to him. It will be proper to suspend thatportion to lessen the hardship the accused had had to endure. Due to timeconstraints and the fact that pre-sentence report cannot be made available onsuch short notice of sentence of correctional supervision cannot be explored.[7] In the circumstances four of the six months imprisonment sentenceshould be served and one remaining two months suspended on conditions.[9] In the result, the sentence of six months imprisonment is set asidereplaced with the following sentence; antedated to 20 October 2009:1. The accused to undergo six (6) imprisonment of which twomonths imprisonment is suspended on condition that theaccused is not

6_____________________________Z. M. NHLANGULELAJUDGE OF THE HIGH COURTI agree :MAQUBELA AJ___________________________JUDGE OF THE HIGH COURTDELIVERED ON : 17 DECEMBER 2009