S v Permall (171172) [2017] ZAWCHC 143; 2018 (2) SACR 206 (WCC) (8 December 2017)

S v Permall (171172) [2017] ZAWCHC 143; 2018 (2) SACR 206 (WCC) (8 December 2017)

The magistrate misdirected himself by imposing an alternative imprisonment term of 30 months for a fine of R15,000, which is not in accordance with the statutory ratio prescribed by the Adjustment of Fines Act and the Magistrates' Courts Act. The correct ratio between the fine and imprisonment is R3,333.33 per month, meaning the alternative imprisonment should have been four or five months, not 30. The sentence imposed was unduly disproportionate and not in accordance with justice, warranting interference by the High Court on review. The accused is entitled to the least severe period of imprisonment as an appropriate sentence.

Citation
[2017] ZAWCHC 143
Parties
Applicant: The State; Respondent: Graham Thomas Raymond Permall
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
8 December 2017
Case Number
171172
Procedural Posture
Review Application / High Court Review of Magistrate's Sentence Under Section 304 of the Criminal Procedure Act
Outcome
Sentence imposed by the trial court set aside and substituted with a lawful sentence.
Judges
DM Thulare, NP Boqwana
Legal Topics
Driving Under Influence, Sentencing Discretion, Adjustment of Fines Act, Magistrates Courts Jurisdiction
Criminal Law Civil Procedure Driving Under Influence Sentencing Discretion Adjustment of Fines Act Magistrates Courts Jurisdiction

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Parties

The State

Applicant

Graham Thomas Raymond Permall

Respondent

Procedural Posture

Review Application / High Court Review of Magistrate's Sentence Under Section 304 of the Criminal Procedure Act

Legal Issues

  1. 1 Whether the sentence imposed by the magistrate was in accordance with the law and justice.
  2. 2 Whether the alternative imprisonment term was correctly calculated in terms of the Adjustment of Fines Act and Magistrates' Courts Act.
  3. 3 Whether the sentence was unduly disproportionate and required interference on review.

Ratio Decidendi

The magistrate misdirected himself by imposing an alternative imprisonment term of 30 months for a fine of R15,000, which is not in accordance with the statutory ratio prescribed by the Adjustment of Fines Act and the Magistrates' Courts Act. The correct ratio between the fine and imprisonment is R3,333.33 per month, meaning the alternative imprisonment should have been four or five months, not 30. The sentence imposed was unduly disproportionate and not in accordance with justice, warranting interference by the High Court on review. The accused is entitled to the least severe period of imprisonment as an appropriate sentence.

Court Disposition

Sentence imposed by the trial court set aside and substituted with a lawful sentence.

Orders

  • The sentence imposed by the trial court is set aside and substituted with: The accused is sentenced to a fine of R15,000 or four months imprisonment wholly suspended for five years on condition that the accused is not convicted of contravening section 65(2) of the National Road Traffic Act, 1996 (Act No. 93 of 1996)...
  • The accused is disqualified from obtaining a learner's or driving licence for a period of six months.