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 R11111 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.

1Promulgated in terms of s 58 (4) of Act 18 of 1998 see Government Gazette No.19205.

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.
4.2. 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.
4.3. 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.
4.4. 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.
4.5. 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

2 S v Rabie 1975(4) SA 855(A) at 857D - F;  S v Pillay 1977(4) SA 531(A) at 535E – G.

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 Prinsloo5 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

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.

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 Pillay8  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

7 1998(1) SACR 554 AD.
8 1977(4) SA 531(A) 535A-C.

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
Siebert9 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

9 at 559e.
10 S v Zinn 1969(2) 537(A) at 540G.

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

11 S v Holder 1979(2) SA 70 (AD) at 77H-78A.