S v Vermaak (218/07) [2008] ZASCA 45 (31 March 2008)

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[2008] ZASCA 45
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S v Vermaak (218/07) [2008] ZASCA 45 (31 March 2008)

THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Not reportable
CASE NO: 218/07
In the matter between :
ALAN MICHAEL VERMAAK
...
Appellant
and
THE STATE
...
Respondent
__________________________________________________________________________
Before: STREICHER, HEHER JJA & KGOMO AJA
Heard: 3 MARCH 2008
Delivered: 31 MARCH 2008
Summary: Sentence – application to receive new evidence – no
case made out – no misdirection on the part of magistrate.
Neutral citation: Alan Vermaak v The State (218/07)
[2008] ZASCA
45
(31 March 2008)
__________________________________________________________________________
J U D G M E N T
__________________________________________________________________________
KGOMO AJA
KGOMO
AJA
:
[1]
The
appellant was convicted on four fraud charges in the Uitenhage
regional court pursuant to his plea of guilty. These counts were
taken together for purposes of sentence and he was sentenced to five
years’ imprisonment in terms of
s 276(1)(i)
of the
Criminal
Procedure Act, No 51 of 1977
. The High Court, Eastern Cape Division,
dismissed an appeal against the sentence imposed but granted the
appellant leave to appeal
to this court.
[2] The appeal was heard by us on Monday 3 March 2008.
On Friday 29 February 2008 the appellant delivered an application to
place
‘new evidence’ before us. The evidence is contained in two
unsigned letters on the letterhead of a Dr James Potts dated 1 June
2008 and 13 February 2008 respectively. According to the letter dated
13 February 2008 the following diagnosis had been made in respect
of
the appellant:
Diagnosis
:
(i) Coronary artery disease
(ii) Previous coronary bypass x2 (1998 and 2004)
(iii) Peripheral vascular disease (syptomatic
claudication)
(iv) Hypertension
(v) Left ventricular dysfunction (EF 30%)
(vi) Previous depression
(vii) Angina pectoris
[3] The general rule is that this
Court must decide the question of sentence according to the facts in
existence at the time when
the sentence was imposed and not according
to new circumstances which came into existence afterwards (see
S
v Immelman
1978 (3)
SA 726
(A) at 730H). It is not necessary to consider what exceptions
there may be to the general rule as no case has been made out by the
appellant that the evidence which he now wishes to place before us,
is new. The appellant’s health problems started before sentence
was
imposed by the magistrate, evidence of those health problems were
placed before the magistrate and he had regard to such evidence
in
imposing sentence. No case has been made out by the appellant that
there has been a material deterioration in his health. For
these
reasons the appellant’s application for the admission of ‘new
evidence’ is dismissed.
[4] The appellant and his co-accused were partners in a
used-car dealership. They jointly devised a scheme through which they
sold
several vehicles to unsuspecting different buyers and secured
financial backing from commercial financial institutions for each
duplicated
transaction. They achieved this by falsifying motor
vehicle registration documents. The partners would then share the
proceeds from
these ill-begotten gains.
[5] The appellant was 45 years old when he was sentenced
in 2003. He was married and had two young children one of whom was in
matric
and the other (no age given) a budding rugby player. The
appellant worked and maintained his family. He suffers from a chronic
heart
condition which led to a double heart by-pass operation. Due to
this disability he was boarded by Transnet for whom he worked for
a
considerable period.
[6] The trial court took into
consideration the appellant’s personal circumstances, that the
appellant pleaded guilty and displayed
a measure of remorse, that he
co-operated with the police and undertook to testify against his
partner. As a consequence of the appellant’s
co-operation with the
police the appellant’s partner also pleaded guilty to fraud
involving R400 000.
[7] Counsel for the appellant
submitted that the magistrate did not place enough, if any, emphasis
on the mitigating factors that
were present. He contended,
furthermore, that the magistrate misdirected himself in not regarding
the fact that the appellant had
initiated steps to resolve the
problem created by his fraud, as a mitigating factor. The magistrate
said in this regard:
‘
Skade is gely of deur die eienaars of deur
instansies en die bedrag is aansienlik. Dit is ook deur die Staat
aanvaar dat u in ‘n
stadium beoog het om dinge te probeer beredder
en inderdaad reëlings getref het met ‘n prokureur mnr Paul
Roelofse en hom kom
sien het en in ‘n proses was om ‘n verband op
u woning uit te neem om die
storie
te probeer uitsorteer. `n Hartaanval het dinge laat hande uitruk en
is u ten einde laaste gesekwestreer.
Of hierdie punt werklik versagtend is is by my ‘n vraagteken en of
dit nie werklik daaroor gegaan het dat dit ‘n poging was om
die
bedrag wat inderdaad gepleeg is verder te verdoesel nie.’
[8] In my view the magistrate did not misdirect himself
in any respect. There is no evidence as to when the steps to raise
money were
taken by the appellant, they could, therefore, well have
been taken in order to prevent detection. The magistrate, therefore,
was
entitled not to treat them as constituting a mitigating factor.
All the mitigating factors were taken into account by the magistrate
and the sentence imposed by him is an appropriate sentence. In the
circumstances this court is not at liberty to interfere with the
sentence.
[9] The appeal is dismissed.
________________________
F D KGOMO
ACTING JUDGE OF APPEAL
CONCUR
:
STREICHER JA)
HEHER JA)