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[2017] ZAGPPHC 248
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Maimela v S (A785/2016) [2017] ZAGPPHC 248 (25 April 2017)
GAUTENG
DIVISION, PRETORIA
Case
No. A785/2016
REPORTABLE:
NO
OF
INTEREST
TO
OTHERS
J
UDGES: NO
Date:
25/4/2017
In
the matter between:
COLLEN
MAIMELA
Appellant
and
THE
STATE
Respondent
JUDGMENT
MIA
AJ:
[1]
The appellant appeared in the district court on a charge of
housebreaking with intent to steal and theft on 30 May 2014. The
matter was transferred to the Regional Court, Vereeniging on the 22
August 2014. The accused pleaded guilty to the charge and was
convicted accordingly and sentenced to six years imprisonment. The
value of the items stolen was reflected in the charge sheet
as R4300.
The appellant applied for leave to appeal against sentence. This
was dismissed by the trial court. The appellant
petitioned the
Judge President and was granted leave to appeal against sentence. The
appellant is therefore before us on appeal
against sentence.
[2]
Ms Masete appearing on behalf of the appellant contends that the
sentence of six years imprisonment is inappropriate and that
the
learned magistrate erred in imposing this sentence by over
emphasizing the seriousness of the offence and the interests of
society and underemphasising the personal interests of the appellant.
Ms Masete further contends that imposing such a lengthy period
of
imprisonment is harsh in that the court failed to give adequate
weight to the fact that the complainant's goods were recovered
and no
loss was suffered other than the damage to the roof. Notwithstanding
this, the concession is made that the offence is serious
and is
usually met with a term of imprisonment.
[3]
I have considered the submission made in the appellant's heads of
argument that the sentence was out of proportion to the facts
of the
case, the personal circumstances of the appellant and that the
accused spent time in custody awaiting trial in this matter.
Further
that the court erred in over-emphasising the previous convictions of
the appellant and in doing so misdirected itself in
imposing a
sentence which was disturbingly inappropriate. It was contended that
the court erred in failing to take into account
that the appellant
committed the offence out of his dire and impoverished circumstances
rather than greed.
[4]
Mr Molatudi stood by his heads of argument. I have had regard to his
submissions therein. The appellant spent five months in
prison
awaiting trial which is a normal part of the criminal justice system
process when an accused chooses not to apply to be
released on bail.
There were no submissions or indication on the record to suggest that
the trial or proceedings were unreasonably
delayed or that any delay
was attributable to the State.
[5]
Mr Molatudi submitted that that the trial court considered that
impact of the previous convictions and considered a sentence
that
would have a deterrent impact. He requested this Court to consider
that the appellant was afforded previous opportunities
to
rehabilitate his conduct outside of prison and instead graduated to
committing more serious offences. He argues that much like
in the
matter of
S v Matyityi
2011(1) SACR 40 SCA at para 10 the appellant 'appears to
have spurned the mercy shown him by the court'.
[6]
The function of the court of appeal against sentence is to decide
whether or not the trial court exercised its discretion judicially
and properly. It is generally accepted that an appeal court should
only interfere with the sentence imposed by a trial court if
the
trial court has misdirected itself in the imposition of sentence,
resulting in a sentence which is disturbingly inappropriate
that it
induces a sense of shock. In S
v
Pillay
(1977]
4 All SA 713
(A);
1977 (4) SA 531
(A) the correct approach to an
appeal is expressed as follows by Trollip JA at p 535E
G:
"As the essential inquiry in an
appeal against sentence, however, is not whether the sentence was
right or wrong, but whether
the Court in imposing it exercised its
discretion properly and judicially, a mere misdirection is not
by itself sufficient
to entitle the Appeal Court to interfere
with the sentence; it must be of such a nature, degree,
or seriousness
that it shows, directly or inferentially, that the
Court did not exercise its discretion at all or exercised it
improperly or unreasonably.
Such misdirection is usually and
conveniently termed one that vitiates the Court's decision on
sentence."
[7]
Similarly, in
S
v
Rabie
1(1975]
4 All SA 723(A)
724;
1975 (4) SA 855
(A)
Holmes JA observed that sentencing was pre-eminently a matter
for the discretion of the trial court and emphasised
that such
discretion should only be altered if the trial court's discretion had
not been judicially and properly exercised. At
page 857 E-F the court
set out the following guiding principles with regard to interference
with a sentence on appeal:
"1.1n every appeal against
sentence, whether imposed by a magistrate or a Judge, the Court
hearing the appeal -
(a)
should be guided by the principle that punishment is "pre-eminently
a matter for the discretion
of the trial Court"; and
(b)
should be careful not to erode such discretion: hence the further
principle that the sentence should
only be altered if the discretion
has not been "judicially and properly exercised".
2.
The test under (b) is whether the sentence is
vitiated by irregularity
or misdirection or is disturbingly
inappropriate."
[8]
In this matter the trial court considered whether there was a
realistic possibility of a success on appeal and whether
a court of
appeal could reasonably arrive at a different conclusion. In coming
to that determination the trial court considered
a number of High
Court judgments. The first being
S
v Dials
2013(2) SACR 665 wherein the accused was convicted
of three counts of housebreaking with intent to steal and theft. It
is apparent
from the reasons for sentence that the trial court also
took into account the appellant's personal circumstances the
seriousness
of the offence and the interests of the community.
[10]
I cannot find that that the court over-emphasised the seriousness
of the offence and under-emphasised or attached
too
little weight, to the personal circumstances of the
appellant, as argued by Ms Masete. The sentence imposed
in the
present matter fits the circumstances of the particular case. In my
view, the trial court, properly balanced the seriousness
of the
offence, the interests of society and the interests of the appellant.
I cannot find any misdirection on the part of the
trial court which
warrants the interference of this Court in the sentence that it
imposed.
[11]
In the circumstances, I propose the following order: The appeal
against sentence be dismissed.
___________________
SC
MIA
Acting
Judge of the High Court
I
agree
IT
IS SO ORDERED.
___________________
PM
MABUSE
Acting
Judge of the High Court
On
behalf of the Appellant:
Ms Masete
Instructed
by:
Legal Aid Board
Pretoria
On
behalf of the Respondent:
Mr Molatudi
Instructed
by:
The State
Pretoria