S v B

• Jurisdiction: South Africa
• Citation: 2007 (2) SACR 489 (E)

S v B
2007 (2) SACR 489 (E)

2007 (2) SACR p489

Citation	2007 (2) SACR 489 (E)
Case No	CA&R404/04
Court	Eastern Cape Division
Judge	Erasmus J and Chetty J
Heard	October 25, 2006
Judgment	October 25, 2006
Counsel	D Geldenhuys for the appellant; N Henning for the State

Flynote : Sleutelwoorde B

Juvenile offenders — Sentence — Correctional officer's report — Despite recommendation that appellant suitable candidate for correctional supervision, sentence of 18 months' imprisonment imposed — Appearing that seriousness of offences, coupled with appellant's previous convictions, seen C as aggravating, to exclusion of any other viable sentencing option — However, to regard previous offences, committed when appellant a mere teenager, with little or no insight into his actions, as excluding non-custodial sentence a misdirection warranting interference with imposed sentence — On appeal, sentence set aside and matter remitted to trial court D for reconsideration of sentence in light of Court's comments on appropriateness of sentence of correctional supervision.

Appeal — In which cases — No appeal lying against order that suspended sentence be put into operation — Such order reviewable. E

Headnote : Kopnota

The appellant pleaded guilty to, and was convicted of, two counts of fraud and one of theft. He admitted two previous convictions for housebreaking with intent to steal and theft. Since he had been a juvenile at the time of the offence a correctional officer's report was obtained. This recommended that the appellant was a suitable candidate for correctional supervision in terms F of s 276(1)(h) of the Criminal Procedure Act 51 of 1977. Despite this, however, the appellant was sentenced to 18 months' imprisonment, of which six months were conditionally suspended for five years. A month later, the suspended sentence imposed after one of the appellant's previous housebreaking convictions was put into effect; this meant that he was effectively incarcerated for 21 months. The appellant subsequently appealed G against the sentence of 18 months, and against the putting into operation of the suspended sentence.

Held, that the seriousness of the offences was beyond question. They had been planned in an amateurish manner that demonstrated his naivety and immaturity. The correctional officer had recognised that the appellant H would benefit from the psychosocial and life-skills programmes envisaged in a sentence of correctional supervision, but this did not seem to have been properly considered by the trial court. (Paragraph [5] at 492c - e.)

Held, further, that the seriousness of the offences, coupled with the appellant's previous convictions, appeared to have been seen as aggravating, to the exclusion of any other viable sentencing option. However, when the I previous offences had been committed the appellant had been a mere teenager, with little or no insight into his actions. To regard them as excluding a non-custodial sentence was a misdirection warranting interference with the imposed sentence. (Paragraph [5] at 492d - f.)

Held, further, that counsel were ad idem that the sentence should be set aside and the matter remitted to the trial court for reconsideration of sentence in light J

2007 (2) SACR p490

of the Court's comments on the appropriateness of a sentence of correctional A supervision. (Paragraph [6] at 492i - j.)

Held, further, that the order whereby the suspended sentence had been put into operation was not appealable. Properly construed, it was reviewable, and counsel for the State had conceded that it ought to be set aside. (Paragraph [6] at 492g - i.)

Sentence set aside and matter remitted to trial court for reconsideration of B sentence. Order putting suspended sentence into operation set aside.

Annotations:

Cases cited

Reported cases

Gasa v Regional Magistrate for the Regional Division of Natal 1979 (4) SA 729 C (N): referred to

S v Venter 1970 (4) SA...