THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No:       064/11

In the matter between:

SHELDON PATRICK FURLONG                                              Appellant

and

THE STATE                                                                                Respondent

Neutral citation: Furlong v State (064/11) [2011] ZASCA 103 (1 June
2011)

Coram:
NAVSA, SERITI JJA and PETSE AJA

Heard:
24 May 2011
Delivered:
1 June 2011

Summary: Criminal Law ─ sentence ─ accused charged with a
contravention of section 36 of the General Law Amendment Act 62 of 1955
─ magistrate equating offence with more serious offences ─ sentence set
aside and substituted with a lesser sentence.

_____________________________________________________________________

ORDER

On appeal from: North Gauteng High Court (Pretoria) (Mavundla J and
Van Zyl AJ sitting as a court of appeal):

1.
The appeal is allowed.
2.
The order of the court a quo is set aside and in its place the
following is substituted:
‘1.
The appeal is upheld.
2.
The sentence imposed by the magistrate is altered to read as
follows:
“The accused is sentenced to three years’ and two days’ imprisonment.”
3.
The substituted sentence set out in 2 above is antedated to 18 May
2007.’
___________________________________________________________

JUDGMENT

PETSE AJA (NAVSA and SERITI JJA concurring)

[1] The appellant stood trial in the regional court, Musina, on a charge
of contravening s 36 of the General Law Amendment Act 62 of 1955.1

[2] It was common cause at the trial that on or about 24 October 2006
the appellant was, at or near Beit Bridge in the regional division of

1 S36 provides:
‘Failure to give a satisfactory account of possession of goods. Any person who is found in possession
of any goods, other than stock or produce as defined in section one of the Stock Theft Act, 1959 (Act
57 of 1959), in regard to which there is reasonable suspicion they have been stolen and is unable to
give a satisfactory account of such possession, shall be guilty of an offence and liable on conviction to
the penalties which may be imposed on a conviction of theft.

Limpopo, found in unlawful possession of an Audi Q7 four-wheel drive
motor vehicle (the vehicle) valued at R750 000. There was a reasonable
suspicion that the vehicle had been stolen as the appellant was unable to
proffer a satisfactory account of such possession.

[3] Having pleaded guilty to the charge he was duly convicted as
charged and sentenced to imprisonment for a period of seven years.

[4] The appellant unsuccessfully appealed against his sentence to the
Pretoria High Court. Aggrieved by this result the appellant applied to the
Pretoria High Court for leave to pursue a further appeal against sentence
to this court, which was granted.

[5] The owner of the vehicle, Mr Hlanigani Joseph Maluleke testified
in relation to sentence only. A summary of his evidence is set out
hereunder. On 14 October 2006 at about 19h00 he was driving the vehicle
on Klagobela Street in Atteridgeville when he realised that there was a
white motor vehicle driving behind him. When he reached the end of the
street, which was a cul-de-sac, a white motor vehicle parked behind him,
rendering it impossible for him to execute a u-turn. Suddenly someone
was pointing a gun at him alongside the driver’s window of his vehicle,
demanding that he alight. He complied and at that stage saw two other
men opening the rear passenger door of his vehicle. Then he was shoved
into the vehicle and instructed to lie face down as they drove from the
scene.

[6] The hijackers searched Mr Maluleke and seized his automated
bank teller cards. He was compelled to disclose the personal identity
numbers of his bank cards under threat of death should the numbers

disclosed turn out to be false. Later he was ejected from the vehicle,
pushed down a slope and bushy area, with both his hands tied behind his
back. He managed to walk to a toll plaza on the N4 road between
Rustenburg and Atteridgeville from where the police were summoned.

[7] Mr Maluleke subsequently learnt, on making enquires from
Standard Bank and ABSA Bank, that a total of R18000 had been
withdrawn from his bank accounts. When his motor vehicle was
recovered by the police on 24 October 2006 his laptop, digital camera,
bank cards and cheque book were missing. Due to the fact that he was
robbed of his motor vehicle at night he could not identify his assailants.
So much then for his evidence.

[8] It is apposite at this stage to mention that in his written statement in
substantiation of his guilty plea in terms of s 112(2) of the Criminal
Procedure Act 51 of 1977, the appellant admitted all the essential
elements of the offence charged including admitting that at the time of his
arrest he was in no position to give a satisfactory account of his
possession of the vehicle and that his dealings with the vehicle were at all
material times intentional and unlawful.

[9] The circumstances in which an appellate court would be justified in
interfering with a sentence of the trial court have been restated in a long
line of judgments of this court. In S v Mtungwa & ‘n ander 1990 (2)
SACR 1 (A) this court held that once it is shown that one, some or all of
the following factors exist the appellate court would be justified to
interfere, namely: if the sentence is, for example, (i) disturbingly
inappropriate; (ii) totally out of proportion to the magnitude of the
offence; (iii) sufficiently disparate; (iv) vitiated by misdirection showing

that the trial court exercised its discretion unreasonably and (v) is
otherwise such that no reasonable court would have imposed it. (See also
S v L 1998 (1) SACR 463 (SCA); S v Salzwedel & others 1999 (2) SACR
586 (SCA); S v Giannoulis 1975 (4) SA 867 (A) at 868G-H; S v
Kgosimore 1999 (2) SACR 328 (SCA) at para 10)

[10] On appeal before us the severity of the sentence imposed on the
appellant was assailed on a number of bases. It was contended that the
trial court paid little or no regard to the moral blameworthiness of the
appellant; failed to give due weight to the fact that by pleading guilty the
appellant had thereby expressed contrition; and committed a material
misdirection by imposing ‘an exemplary sentence’ that had the effect of
‘dramatically altering the existing sentencing patterns’.

[11] The critical issue for determination in this appeal therefore is
whether the trial court committed a material misdirection of the nature
alleged or there is otherwise justification warranting interference with the
sentence imposed by the trial court. Allied to that issue is the question
whether the court a quo should have come to a conclusion different to the
one reached by it.

[12] The magistrate based his reasoning for the sentence imposed on the
following factors: (a) the seriousness of the offence that the appellant was
convicted of, aggravated by the fact that the vehicle concerned had been
hijacked; (b) the alertness of the police that led to the recovery of the
vehicle meant that their ‘good work’ was deserving of appreciation to be
reflected by imposing a sentence that ‘would encourage them to combat
crime in the future as they have in this case’; (c) that car-hijackers and
thieves would continue relentlessly with their nefarious activities for so

long as there were people such as the appellant who hold themselves
ready to dispose of hijacked and stolen vehicles; (d) the prevalence of the
offence in the area of jurisdiction of the trial court.

[13] In making these observations on reaching a decision on an
appropriate sentence the trial court was in fact equating the offence that
the appellant was charged with with the offence of robbery and/or theft.
Put differently he was being punished for more serious offences than the
one he was being charged with. In particular the magistrate appeared
intent on punishing the appellant for the actions of the hi-jackers. This is
a material misdirection which is inextricably linked with the trial court’s
decision on an appropriate sentence. There is no doubt that it is that view
that resulted in a more severe sentence. This court is thus at large to
interfere.

[14] Although the learned magistrate was at pains to point out that he
would take care not to sacrifice the appellant on the altar of deterrence, I
am satisfied that, given the severity of the sentence that he ultimately
imposed on the appellant, he in fact only paid lip service to this laudable
principle.

[15] It remains to consider what, in the circumstances, is an appropriate
sentence in substitution of the one imposed by the trial court and
confirmed by the court a quo.

[16] We were informed by counsel for the appellant at the hearing of
the appeal ─ following inquiries made by him from correctional services
at the behest of this court ─ that the appellant had been released under
correctional supervision on 20 May 2010. The appellant was sentenced to

seven years’ imprisonment on 18 May 2007, which then means that he
had served three years of his seven year sentence. Prior to his conviction
he was in police detention for four months awaiting trial. He was at the
time of his conviction a first offender and 40 years of age. It must be
mentioned that, although he pleaded guilty to the charge, it is not possible
to discern, on the evidence before us, whether his guilty plea can be taken
as an expression of genuine remorse or was rather provoked by a stark
realisation on his part that the State had ‘an open and shut’ case against
him, in which event his guilty plea would be a neutral factor.2 The
appellant also had two minor children then aged 11 and 15 years who, it
would appear, were solely dependant on him for their livelihood. He had
just found employment as a despatch clerk from which he would have
earned a salary of R2000 per month.

[17] The appellant’s counsel submitted on his behalf that the appellant’s
role was merely to deliver the vehicle to someone in Zimbabwe. This
submission appears well founded.

[18] There are aggravating factors that are deserving of due
consideration. The appellant was convicted of a serious offence. It is thus
perfectly understandable that the learned magistrate gave the appellant’s
plea for an option of a fine short shrift. As stated before he had been
found in possession of a relatively new motor vehicle, worth almost R800
000, which was on the verge of being whisked away beyond the borders
of this country.

[19] There is no doubt that a sentence of 7 years’ imprisonment is more
appropriate in the case of theft of a motor vehicle. And as pointed out

2 See S v Barnard 2004 (1) SACR 191 (SCA) at 197g-h.

before the magistrate in sentencing the appellant appeared intent on
punishing the appellant for the acts of the hi-jackers. The period spent in
jail by the appellant awaiting trial and the fact that he has already been
released under correctional supervision are relevant factors in a decision
concerning an appropriate sentence.

[20] In my view the state rightly conceded that a suitable sentence in all
the circumstances of this case is the period of imprisonment already
served. The effect of the order below is that there will be no further
period of imprisonment to be served by the appellant. Thus the sentence
will be antedated.

[21] In the result the following order is made:
1.
The appeal is allowed.
2.
The order of the court a quo is set aside and in its place the
following is substituted:
‘1.
The appeal is upheld.
2.
The sentence imposed by the magistrate is altered to read as
follows:
“The accused is sentenced to three years’ and two days’ imprisonment.”
3.
The substituted sentence set out in 2 above is antedated to 18 May
2007.’

___________________

XM Petse

Acting Judge of Appeal

APPEARANCES

APPELLANT:
HL Alberts
Instructed by Pretoria Justice Centre, Pretoria;
Bloemfontein Justice Centre, Bloemfontein.

RESPONDENT: SR Sibara
Instructed by Director of Public Prosecutions,
Pretoria;
Director of Public Prosecutions, Bloemfontein.
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
1 June 2011
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.
* * *
FURLONG V THE STATE

The Supreme Court of Appeal (SCA) today upheld an appeal against an order of the North
Gauteng High Court, Pretoria dismissing Mr Furlong’s appeal against a sentence of seven
years’ imprisonment imposed upon him by a regional court for the unlawful possession of a
motor vehicle in contravention of section 36 of the General Law Amendment Act 62 of
1955.

The vehicle had been robbed from its owner at gunpoint. Due to the fact that the robbery
took place at night the owner of the vehicle could not identify his assailants, hence the
appellant was charged with a contravention of section 36. He pleaded guilty to the charge
and, as stated above, was sentenced to seven years’ imprisonment. The question before the
SCA was whether the trial court had committed a material misdirection by imposing such a
sentence.

The SCA held that the appellant was punished for more serious offences than the one he
was charged with. The magistrate appeared intent on punishing the appellant for the actions
of the robbers. This, the SCA held, was a material misdirection which was inextricably
linked with the magistrate’s decision on an appropriate sentence. This material
misdirection, the SCA further held, entitled it to interfere with the sentence imposed by the
magistrate. It substituted the sentence of seven years’ imprisonment with a sentence of
three years’ two days’ imprisonment, antedated to the date on which the appellant was
sentenced by the magistrate, which is the sentence that the appellant had served before
being released under correctional supervision.