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[2013] ZAGPPHC 397
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Ramele v S (83/13) [2013] ZAGPPHC 397 (12 November 2013)
IN THE NORTH GAUTENG HIGH COURT,
PRETORIA /ES
(REPUBLIC OF SOUTH AFRICA)
CASE
NO: 83/13
DATE
OF HEARING: 13 AUGUST 2013
DATE
OF DELIVERY: 12 NOVEMBER 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;
4.1.3 Was he
attending school or not;
4.1.4 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 and sentence should not be assessed
mechanically in reducing the period of imprisonment to be imposed. I
therefore
find that the Court a quo did not err in failing to take S
v Brophy and Another into account when considering sentence.
12. There is no reason to interfere
with the sentence imposed by the Court a 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