Furlong v The State

On 24 October 2006, the appellant was found in unlawful possession of an Audi Q7 motor vehicle valued at R750,000 near Beit Bridge. The vehicle had been hijacked from the owner, Mr Maluleke, on 14 October 2006 in Atteridgeville when he was held at gunpoint, forced into his vehicle, robbed of bank cards from which R18,000 was withdrawn, and then pushed out of the vehicle with his hands tied behind his back. The appellant was unable to give a satisfactory account of his possession of the vehicle when arrested. He pleaded guilty to contravening section 36 of the General Law Amendment Act 62 of 1955 (failure to give satisfactory account of possession of goods reasonably suspected to have been stolen). He was a first offender, aged 40, with two minor children (aged 11 and 15) dependent on him, and had just found employment earning R2,000 per month. He had been in police detention for four months awaiting trial before conviction.

• Whether the sentence of seven years' imprisonment imposed by the magistrate was disturbingly inappropriate or vitiated by misdirection
• Whether the trial court committed a material misdirection by equating the offence charged (possession of goods reasonably suspected to have been stolen) with more serious offences of robbery and/or theft
• Whether the trial court placed undue emphasis on deterrence at the expense of individual circumstances of the accused
• What would constitute an appropriate sentence in the circumstances

The appeal was allowed. The order of the court a quo was set aside and substituted with an order upholding the appeal against sentence. The sentence imposed by the magistrate was altered to three years and two days' imprisonment, antedated to 18 May 2007 (the date of original sentencing). The effect of the order was that there would be no further period of imprisonment to be served by the appellant.

An accused person must be sentenced for the offence with which he or she is charged and convicted, not for more serious offences committed by others. Where a trial court equates an offence under section 36 of the General Law Amendment Act 62 of 1955 (possession of goods reasonably suspected to have been stolen) with the more serious offences of robbery or theft, and in effect punishes the accused for the actions of hijackers or thieves rather than for the possession offence, this constitutes a material misdirection which is inextricably linked with the sentence imposed. Such misdirection justifies appellate interference with the sentence. An appellate court will interfere with a sentence where it is shown that the sentence is: (i) disturbingly inappropriate; (ii) totally out of proportion to the magnitude of the offence; (iii) sufficiently disparate; (iv) vitiated by misdirection showing the trial court exercised its discretion unreasonably; or (v) otherwise such that no reasonable court would have imposed it.

The court observed that it is not always possible to discern whether a guilty plea represents genuine remorse or is simply a pragmatic response to overwhelming evidence against the accused, in which case it would be a neutral factor in sentencing. The court noted that the appellant's role appeared to be merely to deliver the vehicle to someone in Zimbabwe. The court also remarked that a sentence of seven years' imprisonment would be more appropriate for the actual theft of a motor vehicle rather than for possession of stolen property. The court commented that while the magistrate stated he would take care not to sacrifice the appellant on the altar of deterrence, the severity of the sentence imposed indicated this was mere lip service to the principle.

This case is significant in South African criminal law as it reinforces important sentencing principles: (1) An accused must be sentenced for the offence charged, not for more serious offences committed by others; (2) Courts must not punish an accused for the actions of co-perpetrators or other criminals involved in antecedent crimes; (3) While deterrence is a legitimate sentencing consideration, it must not overwhelm individual circumstances and result in a sentence that is disturbingly inappropriate; (4) The sentence must be proportionate to the moral blameworthiness and culpability of the specific accused for the specific offence charged; (5) A sentence of seven years' imprisonment for contravening section 36 of the General Law Amendment Act 62 of 1955 (possession of goods reasonably suspected to have been stolen) is excessive and disturbingly inappropriate, even where the goods are of high value and were obtained through violent crime by others. The case provides guidance on the appropriate sentencing range for possession offences under section 36 and distinguishes such offences from the primary offences of theft or robbery.