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[2014] ZAGPPHC 183
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Scott v S (A793/2013) [2014] ZAGPPHC 183 (1 April 2014)
NORTH GAUTENG
HIGH COURT PRETORIA
(REPUBLIC OF
SOUTH AFRICA)
Case
no: A793/2013
DATE:
01 APRIL 2014
In the matter
between:
CHRISTOPHER
SCOTT
...........................................
APPELLANT
AND
THE
STATE
...........................................................
RESPONDENT
JUDGMENT
BAQWA J; KHUMALO
J
[1] This is an
appeal against sentence only from a judgment of the Northwest
Regional Magistrate’s Court sitting at Potchefstroom
in which
the appellant was charged on three counts of murder, theft of a motor
vehicle and fraud.
[2] At the beginning
of the trial in the court a quo he pleaded guilty to counts 2 and 3
and not guilty to count 1. He tendered
a plea explanation in terms of
section 115
of the
Criminal Procedure Act 51 of 1977
in which he
pleaded guilty to manslaughter in regard to count 1.
[3] The Magistrate
found him guilty of manslaughter on count 1, theft of a motor vehicle
on count 2 and guilty of fraud on count
3.
[4] Appellant was
sentenced to serve seven (7) years imprisonment on count 1, five (5)
years on count 2 and one (1) year on count
3 was ordered to run
concurrently with the sentence on count one. This meant that
appellant would serve an effective sentence of
ten (10) years.
[5] A brief
background to this case is as follows:
The deceased and the
appellant had a relationship and they had co-habited for about three
(3) weeks. Appellant wanted to exit the
relationship. This led to a
verbal altercation which ultimately led to a physical scuffle or
fight. It was during this fight that
the deceased in count 1 was
eventually choked to death by the appellant.
[6] It is trite law
that in every appeal against sentence the court hearing the appeal
should be guided by the principle that punishment
is pre-eminently a
matter for the discretion of the trial court. The appeal court should
be careful not to erode such discretion,
hence the further principle
that the sentence should be altered only if the discretion had not
been judicially or properly exercised.
[7] The
circumstances entitling a court to interfere in a sentence imposed by
a trial court were recapitulated in S v Malgas 2001(1)
SACR 469 (SCA)
2001(2) SA
1222; 2001(3) ALL SA 220
where Marais J.A held;
‘’A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach
the question of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers
it. To do so
would be usurp the sentencing discretion of the trial court...
However, even in the absence of material misdirection,
an appellate
court may yet be justified in interfering with the sentence imposed
by the trial court. It may do so when the disparity
between the
sentence of the trial court and the sentence which the appellate
court would have imposed had it been the trial court
is so marked
that it can properly be described as ‘shocking’,
‘startling”,
or ‘disturbingly inappropriate’.”
[8] Counsel for the
appellant submits that appellant was remorseful of his actions and
that this is demonstrated by the plea of
guilty to two of the counts
with which he was charged. As far as count 1 is concerned he tendered
a plea of guilty to the crime
of manslaughter.
[9] The previous
records of the appellant which he has admitted demonstrate that he is
not prepared to learn from previous brushes
with the law. He has
progressively committed more serious crimes over time from theft to
robbery and now manslaughter, theft and
fraud.
[10] Despite the
seriousness of the offences for which he was convicted and despite
his previous records which were relevant to
those offences, the
Regional Magistrate
demonstrably balanced the three considerations, namely, the crime,
the criminal and the interests of the society.
[11] To suggest as
counsel for the appellant does "that appellant was sacrificed on
the altar of deterrence, thus resulting
in his receiving an unduly
severe sentence”. With reference to the dictum of Howie AJA in
S v So band la 1992(20 SASV 613(A)
at 617 is in my view overstating
the appellant’s case. Appellant received an effective sentence
of ten (10) years for all
the crimes charged. In my view there was no
misdirection or irregularity committed by the Regional Magistrate in
handing down sentence.
[12] It can hardly
be said that the appellant was remorseful. He committed the crimes in
a very calculated and deliberate matter.
He strangled or choked the
deceased, dragged him to his bedroom, removed his personal items
including his credit cards and thereafter
stole his motor vehicle to
boot. That was not the end. He went on to commit various acts of
fraud at various institutions using
the deceased’s credit cards
before finally escaping with deceased’s motor vehicle. There
was no place to hide when
appellant pleaded guilty and his apparent
remorse could be very well likened to the proverbial crocodile tears.
[13] Having listened
to all the submissions by counsel and having considered the matter I
have come to the conclusion that the sentence
by the Regional
Magistrate was the appropriate one in the circumstances.
[14] In the result I
propose that the following order be made.
14.1. The appeal
against sentence is dismissed.
A.M BAQWA
(JUDGE OF THE
HIGH COURT)
I agree.
N.M KHUMALO
(JUDGE OF THE
HIGH COURT)