S v Trichart

• Jurisdiction: South Africa
• Citation: 2014 (2) SACR 245 (GJ)

S v Trichart
2014 (2) SACR 245 (GJ)

2014 (2) SACR p245

Citation	2014 (2) SACR 245 (GJ)
Case No	A 441/2013
Court	Gauteng Local Division, Johannesburg
Judge	Moshidi J and Vally J
Heard	April 1, 2014
Judgment	April 2, 2014
Counsel	EA Guarneri for the appellant, instructed by Legal Aid Board.; AM Persad for the state.

Flynote : Sleutelwoorde

Sentence — Habitual criminal — Declaration as in terms of s 286 of Criminal Procedure Act 51 of 1977 — When declaration should be made — Only after all facts carefully scrutinised — Crimes must have been committed F out of habit and of such nature society required protection from offender for at least seven years — Court still retained discretion not to declare habitual criminal — Long list of previous convictions did not automatically result in declaration — Necessary to give careful attention to nature of actual crime for which accused convicted.

Sentence — Pre-sentence report — Importance of — Courts to take such G reports seriously and give rational, albeit brief, reasons for rejecting recommendations contained therein — Probation officers, who were officers of court and who compiled these reports, performed valuable task, one that was of huge assistance to judicial officers.

Headnote : Kopnota

The appellant was convicted in a magistrates' court of the theft from a H supermarket of a block of cheese to the value of R66. His list of previous convictions indicated that he had 13 previous convictions for crimes of dishonesty. The matter was then transferred to the regional court, by which stage the appellant was legally represented, and information was supplied to the court that he was 39 years old, had two dependants, and skilled as an I upholsterer. The prosecutor requested that the appellant be declared a habitual criminal in terms of s 286 of the Criminal Procedure Act 51 of 1977. The matter was then postponed for a probation officer's report. When the matter came before the court again, it was placed on record that the appellant was a drug addict and the probation officer held the view that sending the appellant to prison was not in the interests of either the appellant or society. She stated that sending him for treatment for his drug J

2014 (2) SACR p246

A addiction served both his and society's interests. She was available at the hearing, approached the magistrate for direction but he referred her to the prosecutor and the representative of the appellant. They took the view that they had no questions for her and accordingly decided to excuse her from further participation in the hearing. The magistrate did not believe it necessary to intervene and did not query any aspect of her report or raise B any questions with her. Both the state and the appellant agreed that the magistrate should accept the report and make his decision on the basis of its contents. The magistrate took note of the facts in the probation officer's report, namely that the appellant was unemployed at the time of the offence and eked out a living collecting scrap metal. He dismissed her recommendation that he should be sent for drug rehabilitation and made patronising C remarks about her alleged inexperience and idealism. The magistrate's view was that the appellant's drug dependency could end simply by him curbing his desire for drugs.

Held, that it was important for courts to take the reports of probation officers seriously and to give rational, even if only brief, reasons for rejecting the D recommendations contained in those reports. The probation officers, who were officers of every court established under the Magistrates' Courts Act 32 of 1944 and who compiled these reports, performed a valuable task, one that was of huge assistance to judicial officers. The roles performed by the two enjoyed a symbiotic relationship. Judicial officers considered factors such as the interests of the convicted individual, the nature and gravity of E the crimes and the interests of society. In considering the interests of the individual, the judicial officer receives invaluable information gathered by the probation officer and has the benefit of the probation officer's expertise regarding the psychosocial and other conditions and circumstances concerning the offender. (Paragraph [10] at 250b – d.)

Held, further, that for the magistrate to conclude that it was for the appellant to F 'curb his behaviour', was to fail to give due recognition to the severity of the appellant's problem of drug dependency. The probation officer's opinion was that it was so severe that it could only be addressed by 'professional intervention'. Not only did the magistrate disregard the report and its recommendation but he drew a conclusion that was the complete antithesis G of that of the probation officer. This was done without having any regard to the evidence upon which the probation officer drew her conclusion and without having any evidence to the contrary before him. The magistrate had accordingly committed a material irregularity by irrationally dismissing the report. (Paragraphs [17] at 252e – g and [18] at 252h.)

Held, further, that the courts had emphasised that a declaration as a habitual H criminal should only result after all the facts had been carefully scrutinised. The crimes had to have been committed out of habit and had to have been of such a nature that society required protection from the offender for a period of at least seven years. Even if these two requirements had been met, the court still retained a discretion not to declare the offender a habitual criminal where this would be inappropriate. Therefore a long list of I previous convictions did not automatically result in the offender being declared an habitual criminal. It was also necessary to give careful attention to the nature of the actual crime for which the accused had been convicted. It had to be noted that such a declaration could lead to an unduly harsh punishment for a minor misdemeanour. (Paragraph [20] at 253d – 254a.)

In the circumstances, the court set aside the declaration of the appellant as an J habitual criminal and sentenced him to a period equivalent to the period

2014 (2) SACR p247

that he had already served and ordered that he be detained at a rehabilitation A centre for a period of three months for the treatment of his drug dependency, which period could be extended upon application to the court. (Paragraph [24] at 255d – g.)

Annotations:

Cases cited

Case law

S v Brophy and Another 2007 (2) SACR 56 (W): applied B

S v Chetty 2013 (2) SACR 142 (SCA): compared

S v Cornick and Another 2007 (2) SACR 115 (SCA) ([2007] 2 All SA 447): applied

S v Kubheka [2012] ZAGPPHC 120: referred to C

S v Malgas 2001 (1) SACR 469 (SCA) (2001 (2) SA 1222; [2001] 3 All SA 220; [2001] ZASCA 30): applied

S v Nawaseb 1980 (1) SA 339 (SWA): referred to

S v Ngomane 2007 (2) SACR 535 (W): referred to

S v Niemand 2001 (2) SACR 654 (CC) (2002 (1) SA 21): applied

S v Stenge 2008 (2) SACR 27 (C): applied D

S v Stephen and Another 1994 (2) SACR 163 (W): followed

S v Van Eck 2003 (2) SACR 563 (SCA): applied

S v Wayi 1994 (2) SACR 334 (E): applied.

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, s 286: see Juta's Statutes of South Africa 2012/13 vol 1 at 2-408 E

The Magistrates' Courts Act 32 of 1944: see Juta's Statutes of South Africa 2012/13 vol 1 at 2-17.

Case Information

EA Guarneri for the appellant, instructed by Legal Aid Board.

AM Persad for the state. F

An appeal from a declaration in a regional court as a habitual criminal in terms of s 286 of the Criminal Procedure Act 51 of 1977.

Order

Sentence imposed by the court a quo is set aside and replaced with the following sentence: G

(1)

The accused is sentenced to 2 years, 10 months and 7 days in prison.

(2)

In terms of s 282 of the Criminal Procedure Act 51 of 1977 (as amended) the sentence is antedated to 14 November 2011.

(3)

The period of detention served by the accused as an awaiting trial H prisoner, from 25 May 2011 – 14 November 2011, must be treated as time served in terms of the sentence referred to in para 1 above.

(4)

The accused is declared unfit to hold a firearm licence in terms of s 103 of the Firearms Control Act 60 of 2000.

(5)

The accused is to be housed at the Dr Fabien and Robeiro Centre I (the Centre) for a period of three months for treatment of his drug dependency. Should the authorities of the Centre be of the view that the period should be extended they may, upon giving notice to the accused, apply through the offices of the Directorate of Public Prosecutions to this court for the necessary extension of the time period. J

2014 (2) SACR p248

Judgment

Vally J (Moshidi J concurring):

Introduction

[1] The appellant was indicted at the magistrates' court of Johannesburg on a charge of theft in that he on or about 25 May 2011 unlawfully and B intentionally stole one 900 g piece of cheese to the value of R66,99 which was the lawful property of Shoprite. Upon being indicted, the appellant who was not legally represented pleaded guilty. The magistrate who presided over the matter satisfied herself that the plea of guilty was competent and thereafter convicted the appellant. Prior to imposing a C sentence upon the appellant, the court adjourned in order for the prosecution to obtain what is generally referred to as the SAP 69, which is a list of previous convictions of the appellant. The list is extrapolated from the records of the Department of Justice. At the next hearing the list was furnished. It revealed that the appellant had 13 previous convictions, dating from as far back as 1988. This revelation resulted in the matter D being transferred to the regional court for sentencing.

[2] The previous convictions of the appellant as...