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2013
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[2013] ZAGPPHC 327
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Ramele v S (83/13) [2013] ZAGPPHC 327 (12 November 2013)
IN
THE NORTH GAUTENG HIGH COURT PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: 83/13
DATE:
12/11/2013
IN
THE MATTER BETWEEN:
PHENIUS
RAMELE
.................................
APPELLANT
AND
THE
STATE
..........................................
RESPONDENT
JUDGMENT
1. This
appeal is against sentence only. The Appellant was convicted of three
counts of housebreaking with intent to steal. All
three counts were
taken as one for the purpose of sentence. Appellant was sentenced to
an effective 12 years imprisonment.
2. The
approach to be adopted by the court of appeal when dealing with
sentence was again set out thus by Mthiyane AJ in the matter
of S v
Packersammy
2004 (2) SACR 169
SCA at 171 f-g.
"Punishment
is pre-eminently a matter for the discretion of the trial court. The
court of Appeal is not to erode such discretion;
on appeal no general
right exists to interfere with a sentence imposed by the Trial Court.
It will interfere with a sentence only
if the discretion has not been
judicially and properly exercised. This will only be so where the
sentence is vitiated by an irregularity
or misdirection or is
disturbingly inappropriate".
GROUNDS
FOR APPEAL
3. The
appellants appeal against sentence is based on the ground that the
court a quo exercised its discretion improperly or unreasonably
because it was argued that;
"In
light of appellants personal circumstances and other mitigating
factors infra (12 years imprisonment is ...) unduly harsh
to the
point of being shockingly inappropriate and this court is entitled to
interfere".
4. It
was submitted that the court a quo erred in that;
4.1 The
Magistrate should have requested a pre sentence report which dealt
more fully with his personal circumstances. The following
examples
where given:
4.1.1
was he employed or not at the time of his arrest;
4.1.2 if
he was employed, how much was he earning;
4.1.3 if
he was employed and earning well above R4000.00 per month maybe that
would have persuaded the Magistrate to consider an
option of a fine
or compensation;
4.1.4
Was he attending school or not;
4.1.5
When did his parents pass away.
5.
Appellant was represented by Ms. Votano at his trial who called him
to the witness stand to give his evidence in mitigation of
sentence
under oath. Ms. Votano asked the appellant whether he was employed
prior to his incarceration and his answer was that
he was unemployed.
This answer negates the examples set out in paragraph 4.1.1 - 4.1.3
above.
6. The
appellant told the court that his highest education was grade ten and
told the court that he intends to go back to school
so that he could
finish his schooling. This answer negated paragraph 4.1.4 above.
7. The
remaining example is left unanswered and it is not known when his
parents passed away. Appellant does however give his address
as his
grandmother's house and acknowledges that he was supported by his
grandmother. The Magistrate specifically says to Ms Votano
that he
has not heard anything about the appellant's parents and asks her the
question what happened to the accused parents. It
is in reply to this
question that we learn from the appellant that both his mother and
father are deceased. It cannot be said that
this circumstance was not
considered by the Magistrate when deciding sentence.
8. In
addition to the above the Court a quo took the following personal
circumstances of the appellant into account:
8.1 that
he was 22 years old at the time of the offence;
8.2 He
has a child who lives with its mother but that he wanted to take care
of his child as well as his sister.
9. In
these circumstances I cannot find that the sentence is unduly harsh
in the light of the appellant's personal circumstances
on the grounds
of appeal raised on behalf of the appellant. The court a quo was
cognisant of the fact that the appellant was a
first offender
.
10. It
was submitted that the court a quo erred further in that the
magistrate failed to take the 15 months the appellant spent
in
custody awaiting trial into account. Mr Matlapeng referred to the
case of S v Brophy and Another
2007 (2) SACR 56
WLD at 596 where it
was held that a period spent in custody is equivalent of a sentence
twice that length.
11.
However in the case of Radebe v State
2013 ZASCA 31
it was held that
when determining an appropriate sentence of imprisonment, the period
spent by an accused in detention while awaiting
trial, conviction anc
sentence should not be assessed mechanically in reducing the period
o1 imprisonment to be imposed. I therefore
find that the Court a quo
die not err in failing to take S v Brophy and Another into account
wher considering sentence.
12.
There is no reason to interfere with the sentence imposed by the
Court c quo and the following order is made:
Order:
The appeal is dismissed.
VRSN
Nkosi Acting Judge of the High Court
I
agree,
C
Carribanis
Acting
Judge of the High Court