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[2018] ZAWCHC 89
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S v Frederick; S v Maxhongo (18531; 18532) [2018] ZAWCHC 89; 2018 (2) SACR 686 (WCC) (11 July 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
REVIEW
18531
REVIEW
18532
In
the matter between
THE
STATE
V
TOM
CARSLIN FREDERICK
And
THE
STATE
V
ANATHI
MAXHONGO
CORAM: DOLAMO J; THULARE
AJ
JUDGMENT ON REVIEW 11
JULY 2018
THULARE
AJ
[1]
The two matters came before me on review independently at the same
time and raised the same issue from the same magistrate.
In the light
of the nature and approach to the issue, I did not deem it meet to
refer the matter back to the magistrate for her
statement.
[2]
The accused in both matters were charged with unlawful possession of
a minimal amount of an undesirable dependence-producing
substance
listed in Part 3 of schedule 2 of the
Drugs and Drug Trafficking Act
140 of 1992
in contravention of
section 4(b)
of the said Act read
together with other sections of that Act. In respect of the first
matter, it was an unknown amount of methampethamine
contained in a
lolly of the drug commonly known as tik. In respect of the second
matter, it was 1.4 grams of crushed methaqualone,
a drug commonly
known as mandrax, contained in a white paper folder. In both
instances, it appears that it was the amount of drug
already prepared
for and in use.
[3]
In both matters the accused pleaded guilty. They both had a number of
previous convictions relating to the same offence. In
the first
matter, the accused had five such previous convictions. In the first
and the last two previous convictions which were
heard together and
taken together for purposes of sentencing, he was cautioned and
discharged. In the second one he was fined R500
or 50 days
imprisonment and in the third he was fined R3000 or 60 days
imprisonment. He also had an unrelated previous conviction
of theft
for which he was sentenced to 6 months imprisonment in terms of
section 276(1)(i)
of the
Criminal Procedure Act 51 of 1977
.
[4]
In the second matter, the accused had 11 previous convictions for the
same offence. In the first of these, he was sentenced
to four months
imprisonment wholly suspended on condition that he is not convicted
of the same offence committed during the period
of suspension. The
second conviction was six months imprisonment wholly suspended on
unknown conditions. The third conviction he
was fined R500 or 50 days
imprisonment. The fourth conviction he was fined R600 or 30 days
imprisonment wholly suspended for 3
years on condition that he is not
convicted of the same offence committed during the period of
suspension. The fifth conviction
he was fined R500 or 30 days
imprisonment wholly suspended for 3 years on condition that he is not
convicted of the same offence
committed during the period of
suspension. The sixth conviction he was sentenced similar to the
fifth. The seventh conviction he
was fined R1000 or 60 days
imprisonment wholly suspended for 3 years on condition that he is not
convicted of the same offence
committed during the period of
suspension. The eighth conviction he was sentenced to R1000 or 30
days imprisonment of which R500
or 15 days imprisonment was suspended
for 3 years on condition that he is not convicted of the same offence
committed during the
period of suspension. On the ninth conviction he
was sentenced to R5000 or 3 months imprisonment wholly suspended for
4 years on
condition that he is not convicted of the same offence
committed during the period of suspension. On the 10
th
conviction he was fined R500 or 50 days imprisonment. On the 11
th
conviction he was sentenced in terms of
section 276(10(B)
of Act 51
of 1977 to 3 years imprisonment. The accused committed further
offences of this nature whilst terms of imprisonment,
in some
instances more than one, were still hanging over his head as
suspended sentences. He also has three unrelated previous
convictions, two for theft and one for assault common.
[5]
The accused in matter 1 was sentenced to three years imprisonment
suspended for five years on condition that the accused is
not
convicted of section 4(b) of the Drugs and Drug Trafficking Act 51 of
1977 committed during the period of suspension. The accused
in matter
2 was sentenced to 36 months imprisonment in terms of section
276(1)(i) of the Criminal Procedure Act 51 of 1977 (the
CPA). In
respect of matter 1, the law referred to in the sentence is simply
confusing, and makes the sentence incapable of being
made an order of
a court, and called for intervention.
[6]
In respect of both matters two further issues called for attention.
The first is the issue of proportionality of a sentence
to the
offence, and the second issue, which also bears relation to the
first, is the approach to sentencing in offences where,
unless there
is direct evidence to the contrary, the direct consequences of the
offence is for all intents and purposes mostly
suffered by the person
of the perpetrator of the offence, whilst others may suffer
indirectly and often secondary.
[7] In the unreported
judgment of
S v Heuwel (171092)
[2017] ZAWCHC 155
(2017] ZAWCHC
(20 December 2017)
I gave attention to the proportionality of
sentence to the offence, which views are worth repeating here, and
from para 13 to 15
said:
“
[13]
Proportionality between the offence and punishment is part of our law
on sentencing. The previous convictions of an accused
have a place in
sentencing an offender, as required by section 271(4) of the CPA.
They should, however, not be permitted to overwhelm
the triad in
Zinn, which remain factors which are relevant to just sentencing. The
fact that one is dealing with a repeat offender
with previous
convictions is not sufficient reason to ignore the duty to balance
the relevant factors and the purpose of punishment.
The sense of
proportion should not be lost and sentences be imposed which, by
comparison, are too harsh – S v Smith
2003 (2) SACR 135
(SCA)
at para 5.
[14]
The number of times that the offence is being committed does not make
it less petty. It remains petty no matter how often it
is committed –
S v Stenge
2008 (2) SACR 27
(C) at para 22. In my view, the number of
times that an accused commits a particular offence does not make him
or her less human,
such that he or she is to be discriminated
unfairly against and not enjoy the equal benefit of the law, in
particular the legal
principles on sentencing. Furthermore, it cannot
be that once the previous convictions are admitted or proven, the
convictions
of old are resurrected and the previous sentences are
extinguished, leaving the accused open to be sentenced again when he
has
already paid his dues.
[15]
The moral culpability must bear relation to the crime he was
currently convicted of. The length of the period of imprisonment
imposed on the accused bears no relation to the gravity of the
offence for which he has been convicted of. His personal
circumstances
are neutral – Montsho v S (20572/2014)
[2015]
ZASCA 187
(27 November 2015) at para 18. The accused was simply being
used as a commodity to send a message to other would-be offenders.
This denied him of his inherent and infinite worth. The length of the
sentence which has been imposed on the accused is so disproportionate
that in my view, it denied him his humanity.”
[8]
Generally, drugs are abused by the emotionally afflicted. Substance
abuse is a manifestation of an emotional response to uncertain
future
developments which induce fear. Drug abuse is often a symptom of a
flight from reality, or a retreat into the self so that
one does not
deal with the fear of powerlessness because of the behavior of others
towards one’s self worth, or what one
perceives as an unfair
distribution of power and ability. Abuse of drugs is often a comfort
zone for those who are at the imaginary
train station of life waiting
for their turn to board on the railway line to a better life and
prosperity.
[9]
Primarily, it is a crime against one’s own self. It is a
lifestyle. It is what one selects as his or her way of life as
opposed to selection of what one necessarily requires to live. It is
more of a social wrong than it is a serious crime. It takes
courage,
guts and determination to wake up beneath dirty cupboard boxes and
sacks under a bridge, to move and progress in life
to drive one’s
own car over that bridge. It takes misdirected fun and recreation,
hopelessness, uncertainty and fear to smoke
your life, including your
car, towards destruction and a under bridge amidst the dirty boxes
and sacks. It is the question of character,
and inner and mental
strength and a winning attitude. It is a choice.
[10]
Both accused in the two matters before me present one clear message,
to wit, long term imprisonment or the fear thereof, is
not an answer
to crimes primarily against one’s self in general, and in
particular, substance abuse as a lifestyle choice.
Prisons are not
like some sausage-producing machines where you put a stump of meat on
the one end through a grind and you find
ground tube-squeezed meat on
the other end. In each and every case in repeated substance abuse
matters, in my view, attempts should
be made, in crafting an
appropriate sentence, to try and establish where the accused dropped
the ball of his or her vision for
their life, and what contributed to
that ball being dropped. Courts should strive in their sentencing, as
the faith leaders would
say, “to win back the soul” from
outside prison. The “hit back” approach of the majority
of our magistrates’
courts is clearly not working.
[11]
In dealing with substance abuse, magistrates’ courts should
bear in mind that there is a comprehensive national response
for the
combating of substance abuse and this national response provides for
mechanisms aimed at the demand and harm reduction
in relation to
substance abuse through prevention, early intervention, treatment and
re-integration programmes [Preamble to the
Prevention and Treatment
for Substance Abuse Act 70 of 2008] (PATSAA).
[11]
In my view, where a case against the accused
prima
facie
is that he is
a person suspected of sustained or sporadic excessive use of
substances, the National Prosecuting Authority (NPA)
should call for
a probation officer to investigate the circumstances of an accused
and the provision of a pre-trial report recommending
the desirability
or otherwise of a prosecution [section 4(1)(j) of the Probation
Services Act 116 of 1991] (the PSA). Where
there has been a
failure by the NPA to cause for a pre-trial report and the failure to
consider the desirability of a prosecution
for a
prima
facie
patient of
addiction to which treatment is probably due, the court convicting
him or her should consider enquiring into whether
such an accused is
a person as defined in section 33 of PATSAA, and if so, the accused
should find equal treatment and benefit
of that law.
[11]
If the accused is found not to be a person as defined in section 33
of PATSAA, then it is preferable that a probation officer’s
report should be obtained and that, depending on the diagnosis, the
accused be placed in appropriate programmes in terms of the
PSA, to
help him or her back to productive and healthy lifestyles. This
should include programmes or services aimed at diversion
options from
the formal court procedure with or without conditions [section 1 read
with section 3(l) of the PSA]. In my view, the
time has arrived that
in cases where an accused demonstrated, through previous convictions
in custody of the State, that he suffers
from sustained or sporadic
excessive use of substances, in his or her address before evidence is
adduced in terms of
section 150
of the
Criminal Procedure Act, the
State Prosecutor should address the court and place on record
sufficient reasons as to why that accused cannot be a beneficiary
of
early intervention services, which includes diversion programmes and
other programmes aimed at preventing the need for such
a person to be
dealt with in terms of the formal criminal court procedure, and
thereby derive equal protection and benefit of the
PSA.
[12]
The trial court did not consider its duties in line with the
comprehensive national response for the combating of substance
abuse
and the alternatives to sentencing, with its advantages. The failure
of the trial court in both matters to consider other
options
appropriate for the accused, requires of this Court to intervene. The
sentences imposed are so disproportionate that they
call for
intervention. The amounts of substances both the accused admitted to
having possessed is very minimal to warrant a stringent
response in
the vein of a sentence of imprisonment. However, the lives of the
accused matter.
[13]
In the result, I would make the following order:
(a)
The sentences imposed
by the trial court on the accused in both matters respectively, are
set aside.
(b)
Each of these matters
is referred back to the trial court for the court to consider holding
an enquiry in terms of
section 37
of PATSAA with a view to act in
terms of
section 36(1)
in lieu of sentence or order that the accused
be placed under probation services in terms of the PSA.
…………………………………………………
..
DM
THULARE
ACTING
JUDGE OF THE HIGH COURT
I
agree, and it is so ordered.
…………………………………………
..
DOLAMO,
MJ
JUDGE
OF THE HIGH COURT