S v Packereysammy (48/2003) [2003] ZASCA 146 (28 November 2003)

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[2003] ZASCA 146
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S v Packereysammy (48/2003) [2003] ZASCA 146; 2004 (2) SACR 169 (SCA) (28 November 2003)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
REPORTABLE
CASE NO:
048/2003
In
the matter between:
SHAUN PACKEREYSAMMY
APPELLANT
and
THE
STATE
RESPONDENT
CORAM: MTHIYANE, NUGENT and CONRADIE JJA
HEARD: 21
NOVEMBER 2003
DELIVERED: 28
NOVEMBER 2003
Summary: Sentence – first offender – found in
possession of 6157 abalone – sentenced to 18 months’ imprisonment
– whether
there was a proper exercise of judicial discretion.
JUDGMENT
MTHIYANE JA:
MTHIYANE
JA:
[1]
The appellant was convicted in the
magistrate’s court at Caledon of possession of 6140 abalone in
contravention of Regulation 38(3)(b)
of the regulations published on
2 September 1998 under Government Notice R1111
1
and was sentenced to 18 months’ imprisonment. He appealed to the
Cape Provincial Division (before Ngwenya J et Louw J) against
both
the conviction and sentence. The appeal was dismissed and leave to
appeal was refused. The appellant now appeals to this Court
with
special leave granted by this Court. The appeal is against sentence
only.
[2]
The facts are briefly the following. On 27
April 1999 the appellant was found in possession of 6157 abalone
contained in 31 bags.
In terms of Regulation 38(3)(b) (‘the
regulation’) it is an offence for any person to:
‘(b) keep, control or be in possession of more than 20 abalone at
any one time;
’
Regulation 96 provides for payment of a fine or
imprisonment for a period not exceeding two years.
[3]
The appellant pleaded not guilty to the
charge, admitted possession of 6157 abalone and agreed that the
admission be recorded as
such in terms of s 220 of Act 51 of 1977.
[4]
The sentence imposed on the appellant is
assailed on five main grounds.
4.1. First, it was contended that the magistrate over
emphasized the seriousness
of the offence and underestimated the appellant’s
favourable personal
circumstances. The submission is based on an inference
drawn from the remarks
made by the magistrate during his judgment on sentence
when he said that our
country’s marine resources were being ‘sabotaged’
by illegal activities along the
coastline and that this resulted in loss of income for
the coastal
communities. It was submitted further that this led the
magistrate to solely
consider direct imprisonment and to ignore other
sentence options.
Secondly, it was argued that by imposing direct
imprisonment the magistrate
wanted to make an example of the appellant in order to
deter other future offenders. This conclusion, submits counsel, is
inescapable
given the circumstances of the offence and the
appellant’s personal circumstances.
Thirdly, it was submitted that the sentence is
disturbingly inappropriate
because the appellant was a first offender and was to
receive only R3 000 for having conveyed the abalone.
Fourthly, it was contended that the magistrate should
have adopted
an inquisitorial approach and played a more active role
during sentencing in order to obtain information relevant to the
consideration
of other sentence options. It was submitted that by
not adopting a proactive role he failed to give attention to all the
objects
of punishment and confined himself merely to retribution and
deterrence.
Fifthly, it was argued that the magistrate should have
sentenced the appellant
as a first offender to a fine or to correctional
supervision in terms of s 276(1)(h) or to community service in terms
of s 297(1)(a)(i)(cc)
or to a suspended sentence on one or more of
the conditions set out in s 297 of Act 51 of 1977.
[5]
Before discussing the above submissions it
is necessary to restate briefly the well known approach to be adopted
by a court of appeal
when dealing with the question of sentence.
Punishment is pre-eminently a matter for the discretion of the trial
court. The court
on 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 only interfere if the discretion has not
been judicially and properly exercised. This will be so only where
the sentence
is vitiated by an irregularity or misdirection or is
disturbingly inappropriate.
2
[6]
Against this background I turn to consider
each of the appellant’s submissions
seriatim
. I do not
agree that the magistrate misdirected himself or that his remarks
about our country’s marine resources being sabotaged,
led to an
over-emphasis and the under-estimation of the appellant’s personal
circumstances. It seems to me that the remarks were
made simply to
emphasize the gravity of the threat to our marine resources
associated with poaching. The offence is without doubt
very serious
and the magistrate did no wrong in stressing the seriousness thereof.
It also appears that the magistrate was informed
by his knowledge of
illegal abalone activities in his jurisdictional area, albeit
expressed in strong language. There can be no
question that the
magistrate was entitled to take judicial notice of the general
incidence of the crime in his area of jurisdiction
and to use such
knowledge in imposing sentence.
3
[7]
The sentence imposed on the appellant was
severe, but is one which I do not regard as inappropriate in the
circumstances of this
case. It has been held that the severity of
sentence is in itself not a sufficient ground to interfere. In the
absence of any irregularity
or misdirection a court will, on a
question of severity, only interfere if it considers that there is a
striking disparity between
the sentence passed and that which the
court of appeal would have imposed.
4
In contending for a lesser sentence counsel referred us to
S v
Prinsloo
5
a judgment of Thring J (sitting with Potgieter AJ) in which an
accused in that case, found in possession of 50 abalone was sentenced
to a fine of R5 000 or 1 200 hours periodical imprisonment wholly
suspended for five years. We were urged to consider a similar
approach. The
Prinsloo
case is clearly distinguishable on the
facts from the present matter where the appellant had in his
possession over 6 000 abalone.
6
[8]
The contention that because the appellant
was going to be paid only R3 000 the magistrate should have given him
a lesser sentence,
is not easy to comprehend. The appellant was the
only accused in the case. Although this may not have been the
intention the
submission appears to lend substance to the suggestion
that the appellant was probably a member of a syndicate. The
submission was
meant to convey that the reward which the appellant
received for conveying the abalone, a payment of R3000, was
disproportionate
to the punishment that he received for his
transgression. The link between the gravity of a crime and the reward
derived by its perpetrator
is often tenuous. Here, it seems to me,
the real question is the importance of the role played by the
appellant. The appellant placed
no evidence before the Court to
suggest that his role in the criminal project was not vital to its
success.
[9]
I turn to the contention that it appears
that the magistrate decided before hand that he was going to focus
solely on retribution
and deterrence and have no regard to other
sentence options. This is a sweeping conclusion which is not borne
out by the record.
For the submission that other sentence options
were not considered by the magistrate counsel relied heavily on the
judgment of this
Court in
S v Siebert.
7
In that case Olivier JA writing for the majority found that, having
refused a request for a probation officer’s report, the magistrate
was left with insufficient evidence for him to have exercised a
proper judicial sentencing discretion. The Court referred the matter
back to the magistrate with directions that a probation officer’s
report be obtained in terms of s 276A(1) of Act 51 of 1977.
The fact
that the magistrate did not mention other sentence options does not
mean that he did not consider them. In
S v Pillay
8
this Court said:
‘…merely because a relevant factor has not been mentioned in the
judgment on sentence, it does not necessarily mean that it has
been
overlooked, for “no judgment can ever be perfect and
all-embracing”… Moreover, the value to attach to each factor
taken
into account is also for the trial Court to assess.’
In the appeal before us the appellant was legally
represented and there is nothing in the record to suggest that there
were any other
mitigating facts which could have been placed before
the magistrate nor (as in
Siebert’s
case) was the magistrate
requested to order an investigation into any. There is also no reason
to believe that because this was a
serious offence the magistrate
simply considered ‘imprisonment as the first, last and only
option.’- an approach which is strongly
criticized in the
Siebert
9
case.
[10]
Relying on the
Siebert
case counsel
argued further that the magistrate should have played a more
proactive role and elicited more information from the appellant
in
order to enable him to properly exercise his discretion. I do not
consider that the magistrate was required to intervene in
the present
matter given that there was no reason for him to doubt that all
mitigating facts had been placed before him.
[11]
The submission that the appellant should,
because of personal circumstances, have been sentenced to
correctional supervision or
community service or a suspended sentence
ignores the fact that a sentencing court was required to consider not
only the personal
circumstances of the appellant but also the
seriousness of the offence and the interests of the community.
10
In the present matter it cannot be said that the magistrate did not
take all the relevant factors into account or that he did not
adopt a
perfectly balanced approach.
[12]
The submission was made that because the
appellant was a first offender he should have been given a sentence
that would ensure that
he was kept out of jail. A first offender has
no right to be kept out of jail. It all depends on the circumstances
of each case.
It has been held that any serious offence can lead to
imprisonment and frequently imprisonment is the only appropriate
sentence
which ought to be imposed.
11
[13]
The appeal is accordingly dismissed.
__________________
KK MTHIYANE
JUDGE OF APPEAL
CONCUR:
NUGENT
JA
CONRADIE
JA
1
Promulgated
in terms of s 58 (4) of Act 18 of 1998 see Government Gazette
No.19205.
2
S v Rabie
1975(4) SA 855(A) at 857D - F;
S v Pillay
1977(4) SA 531(A) at 535E – G.
3
S v Muvangua
1975(2) SA 83 (SWA) at 84A.
4
S v Berliner
1967(2) SA 193(A) 200F – G.
5
2002 (SACR) 457 (C).
6
Regulation 38 (3)(b) sets a limit of 20 abalone
per person at any one time.
7
1998(1) SACR
554 AD.
8
1977(4) SA 531(A) 535A-C.
9
at 559e.
10
S v Zinn
1969(2) 537(A) at 540G.
11
S v Holder
1979(2) SA 70 (AD) at 77H-78A.