De Almeida v S (728/2018) [2019] ZASCA 84 (31 May 2019)

De Almeida v S (728/2018) [2019] ZASCA 84 (31 May 2019)

The Supreme Court of Appeal held that its jurisdiction was limited to reviewing the high court’s refusal of leave to appeal, not the merits of the sentence imposed by the regional court. The regional court’s failure to consider three pre-sentence reports and the recommendations for correctional supervision constituted a material misdirection. Both parties conceded that there were reasonable prospects of success in an appeal against the sentence. The appellant’s personal circumstances, including his role as primary caregiver to a minor child and lack of previous convictions, were not adequately considered. The court concluded that leave to appeal should have been granted to the high court,...

Citation
[2019] ZASCA 84
Parties
Appellant: Daniël Da Silva Marques De Almeida; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
31 May 2019
Case Number
728/2018
Procedural Posture
Leave to Appeal / Appeal Against Refusal of Petition for Leave to Appeal Against Sentence From the Gauteng Local Division, Johannesburg.
Outcome
Appeal upheld; leave to appeal against sentence granted to the high court.
Judges
Leach, Saldulker, Zondi, Mocumie, Eksteen
Legal Topics
Leave to Appeal, Criminal Sentence, Correctional Supervision, Material Misdirection, Best Interests of Child
Criminal Law Civil Procedure Leave to Appeal Criminal Sentence Correctional Supervision Material Misdirection Best Interests of Child

Case Brief

Summary, issues, holding and outcome

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Parties

Daniël Da Silva Marques De Almeida

Appellant

The State

Respondent

Procedural Posture

Leave to Appeal / Appeal Against Refusal of Petition for Leave to Appeal Against Sentence From the Gauteng Local Division, Johannesburg.

Legal Issues

  1. 1 Whether the high court erred in refusing leave to appeal against the sentence imposed by the regional court.
  2. 2 Whether there are reasonable prospects of success in an appeal against the sentence of eight years’ imprisonment for attempted murder.
  3. 3 Whether the regional court committed a material misdirection by ignoring pre-sentence reports and recommendations regarding correctional supervision.

Ratio Decidendi

The Supreme Court of Appeal held that its jurisdiction was limited to reviewing the high court’s refusal of leave to appeal, not the merits of the sentence imposed by the regional court. The regional court’s failure to consider three pre-sentence reports and the recommendations for correctional supervision constituted a material misdirection. Both parties conceded that there were reasonable prospects of success in an appeal against the sentence. The appellant’s personal circumstances, including his role as primary caregiver to a minor child and lack of previous convictions, were not adequately considered. The court concluded that leave to appeal should have been granted to the high court,...

Court Disposition

Appeal upheld; leave to appeal against sentence granted to the high court.

Orders

  • The appeal is upheld.
  • The order of the high court refusing the appellant leave to appeal against his sentence in terms of s 309C of the Criminal Procedure Act 51 of 1977 is set aside and replaced with: 'The applicant is granted leave to appeal against his sentence.'