Court shows mercy to buyer of stolen generator

A LUTZVILLE resident has won an appeal against a sentence of a year behind bars for the possession of stolen property.

The Western Cape High Court suspended the sentence for three years on condition that he is not found guilty of a similar crime during thatperiod.

Mzimasi Phuthumani had originally been charged in the Vredendal Magistrate’s Court with receiving a stolen generator valued at R15 000, on July 14 last year.

According to Phuthumani’s statement, on the day in question he had been visited at his home by a person named Quinton who was accompanied by someone else.

Quinton and his companion had brought a generator with them which the companion sold to Phuthumani for R750.

Two weeks later, Quinton called Phuthumani and told him that his companion had stolen the generator from his family and that the family members were looking for it.

On giving the generator back Phuthumani decided to drive with Quinton so that he could demand a refund from the seller.

On the way, he was arrested by the police who demanded to know who was the owner of the generator.

Phuthumani told the police that when he bought the generator, he had no reasonable cause to believe that it was not the property of the person who sold it to him or that the person in question had no authority to dispose of such goods.

Nevertheless on October 28 last year he pleaded guilty and the court summarily convicted him of possession of stolen property.

After hearing argument on sentence the trial court sentenced him to direct imprisonment for 12 months.

Aggrieved by this result, Phuthumani applied for leave to appeal against the sentence.

He argued that the magistrate overemphasised the seriousness of the offence and failed to take into account his personal circumstances, in particular, that he was a first offender.

Another of his arguments against the sentence was that the trial court erred in disregarding the request by the prosecutor to impose a wholly suspended sentence, considering the fact that Phuthumani had shown remorse and that the items were recovered.

In his ruling Acting Judge James Lekhuleni said: “The accused was convicted of a serious crime that involves dishonesty. It is a pernicious and malignant offence that is inimical to the values and fibre of our society.

“However, it must be balanced against the personal circumstances of the accused.

“Society is looking at the courts for protection against people who commit crimes. If the courts fail to deal appropriately with criminals, society will lose confidence in the courts and this will prompt society to take the law into their own hands. It is therefore incumbent upon this court to impose a well-considered sentence.

“The court must also bear in mind that the appellant must not be sacrificed on the altar of deterrence. While deterrence and retribution are legitimate elements of punishments, they are not the only ones, or for that matter, even the overriding ones,” said Acting Judge Lekhuleni.