About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 96
|
|
Brass v S (A109/2015) [2016] ZAGPPHC 96 (23 February 2016)
OFFICE
OF THE CHIEF JUSTICE
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION:
PRETORIA
CASE NO: A109/2015
Not reportable
Not of interest to other
judges
Revised
In the matter
between: DATE:
23/2/2016
SHELDON
BRASS APPELLANT
And
THE
STATE RESPONDENT
JUDGMENT
VUKEYA AJ
[1] The appellant was
convicted in the Vereeniging Magistrate’s court on his plea of
guilty to a charge of contravening Section
4 (b) of Act 140 of 1992 –
possession of 0, 4 grams of the Methamphetamine drug. He was
sentenced to three years imprisonment
in terms of Section 276 (1) (i)
of Act 51 of 1977, without an option to pay a fine.
[2] His application for
leave to appeal was only on sentence and it was granted by the court
a quo.
[3] The appellant
contends that the Magistrate had no regard to the triad as well as
the principles of punishment and that he approached
the sentence in a
vindictive manner as opposed to an objective one.
[4] As the basis of his
appeal, the appellant contends further that despite the Magistrate’s
acknowledgement of the fact that
the appellant was a candidate for
rehabilitation, he still passed a sentence of imprisonment without an
option of a fine.
[5] The respondent argued
that the sentence was justified and proportionate to the offence
committed by the appellant.
[6] The duty of sentence
falls within the judicial discretion of the trial court. The appeal
court will only interfere if the trial
court has misdirected itself
or has committed an irregularity during the sentencing process which
is prejudicial to the accused
and requires interference or the
sentence is so disturbing that it induces a sense of shock. See
S
v De Jager and Another
1965 (2) SA 616
(A).
[7] This court must first
determine if there are any grounds that justify interference in the
case at hand before deciding whether
the sentence can be altered.
[8] It is trite law that
when a court passes sentence, it has to consider the triad which
comprises of the accused’s personal
circumstances, the nature
and seriousness of the offence he has committed as well as the
interests of the society. It is required
of the court to weigh and
balance those elements and strive to accomplish and arrive at a
well-judged counterbalance between them
in order to ensure that one
element is not unduly accentuated at the expense of and to the
exclusion of the others.
[9] The primary bone of
contention in the case at hand is whether a sentence of direct
imprisonment was a suitable sentence compared
to one where the
appellant would be rehabilitated at an institution other than prison
and get professional help for his drug problem.
[10] When determining
sentence the Magistrate asked the appellant a few questions and the
answers thereto did nothing but show that
he was a person as
described in Section 33 (1) of Act 70 of 2008. He extracted from the
appellant information that showed that
he had a drug problem but did
not deem it just to intervene.
[11] The Magistrate made
the following remarks in his judgment:
“
Daar word
genoem, ja jy was by ‘n Rhema Kerk en jy het daarso behandeling
gekry. Hoe lank het jy die kursus gevolg? Het jou
ooit die kursus
gevolg? Die hof word nie in kennis gestel nie. Daar is FAMSA, daar is
SAMCA, jy kan na die hof toe stap. Hier is
klerke maatskaplike
werkers wat hier sit wat jou kan stuur vir rehabilitasie. Dit sal jou
nie ‘n sent kos nie”
[12] It is clear from the
above statement that the Magistrate was not interested in considering
other forms of punishment than the
one he already had in his mind.
[13] The Magistrate also
remarked as follows:
“
Vir ‘n
pakkie methamphetamine is dit R100. Nou vra ek hierdie vraag. Jy is
werkloos, waar kry jy die geld vir hierdie dwelmmiddels,
wie voorsien
vir u dwelmmiddels”
[14] The above statement
indicates that the Magistrate was aware that the appellant was
spending a lot of money on drugs, an element
which shows that his
addiction could be causing financial harm to the appellant or to his
family because he was unemployed.
[15] Section 296 of the
Criminal Procedure Act provides as follows:
(1) A court convicting
any person of any offence may, in addition to or in lieu of any
sentence in respect of such offence, order
that the person be
detained at a treatment centre established under the
Prevention of
and Treatment for
Substance Abuse Act 70 of 2008
, if the
court is satisfied from the evidence or from any other information
placed before it, which shall in either of the said
cases include the
report of a probation officer, that such person is a person as is
described in
section
33 (1)
of the said A
ct,
and such order shall for the purposes of the said Act be deemed to
have been made under
section 36
thereof: Provided that such
order shall not be made in addition to any sentence of imprisonment
(whether direct or as an alternative
to a fine) unless the operation
of the whole of such sentence is suspended.
[16] The appellant had
been convicted as a result of his guilty plea. It was clear
from the factors brought to the attention
of the Magistrate that he
had a drug problem. The Magistrate was in a good position to
prima
facie
conclude that the appellant’s addiction was harmful
to his welfare and the welfare of his family. The Magistrate
could
have therefore found that the appellant falls within the
description of a person as defined in section 33 of Act 70 of 2008.
[17] In my opinion the
Magistrate failed to give due recognition to the appellant’s
drug problem. He correctly stated to the
appellant in his remarks
that parents are experiencing challenges with children who use drugs
and then become a problem to their
families by stealing valuable
assets to feed their drug addiction, but he disregarded every factor
which should have been considered
in favour of the appellant.
[18] The appellant was a
first offender who pleaded guilty to possessing 0.4g of the
methamphatemine. In my opinion the sentence
of three (3) years
imprisonment is shockingly inappropriate.
[19] When applying the
principles as applied in the case of S
v De Jager and another
(supra), I am of the opinion that the Magistrate did not exercise his
discretion judicially as expected, he misdirected himself
and
committed an irregularity which was prejudicial to the appellant and
therefore I find that an interference by this court with
the sentence
of the court a quo is justified.
[20] With the heads of
argument for the appeal on sentence came a point
in limine
in
which the appellant brought to the attention of the court that it was
discovered, from the Section 212 statement of the Forensic
expert,
and after the appellant
had been sentenced ; that the mass of methamphetamine found was
actually 0,04g and not 0,4g as alleged in
the charge sheet and
admitted in the Section 112 (2) (Act 51 of 1977) statement.
[21] The parties are in
agreement that this was an error, the mass was indeed supposed to be
0, 04 and not 0, 4 as pleaded. This
information comes before the
appeal court after the appellant has been convicted.
[22] In S v Karolia
2006
(2) SACR 75
(SCA) at 93b – h (para 36) the court said the
following regarding factors emerging post sentence on appeal:
“
The general rule
is that an appeal 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. However, the general rule
is not necessarily
invariable. Where there are exceptional circumstances the existence
of which is unquestionable or the parties
agree to the evidence being
used, it is possible to take these factors into account and it is
also possible to alter the sentence
imposed originally where this is
justified”.
See also
S v Japhta
2010 (1) SACR 136
(SCA).
[23] Because the parties
agree about the new circumstances revealed to the court at this
stage, and they agree that because this
error occurred, the accused
will be prejudiced by it if it is not considered; I am of the opinion
that it is justified to take
it into consideration when making an
order herein.
[24] In the premise I
propose that the following order is made:
The appeal against the
sentence is upheld and the sentence is set aside and substituted with
the following order:
That the appellant is
referred back to the Magistrate’s Court to be dealt with in
accordance with the provisions of
Section 296
(1) of the
Criminal
Procedure Act 51 of 1977
.
_________________________________
VUKEYA L D
ACTING JUDGE OF THE HIGH
COURT OF
SOUTH AFRICA GAUTENG
DIVISION PRETORIA
I agree
_________________________________
POTTERILL S
JUDGE OF THE HIGH COURT
OF
SOUTH AFRICA GAUTENG
DIVISION PRETORIA
HEARD ON: 18 February
2016
DELIVERED ON: 23 February
2016
COUNSEL FOR PLAINTIFF:
ADV R J KOCK
ATTORNEYS FOR PLAINTIFF:
Larry Laden Attorneys
COUNSEL FOR DEFENDANT:
ADV S SCHEEPERS
ATTORNEYS FOR DEFENDANT:
State Attorneys