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[2013] ZAGPJHC 273
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Windvogel v S (2011/05017) [2013] ZAGPJHC 273 (7 November 2013)
IN THE GAUTENG HIGH COURT
JOHANNESBURG LOCAL DIVISION
CASE NO: A
404/2012
DATE:07/11/2013
In the matter between
WINDVOGEL,
JOHANNES
..................................................................
APPELLANT
and
THE STATE
…...................................................................................
RESPONDENT
Coram:
WEPENER J and VALLY J
Heard
:
7 NOVEMBER 2013
Delivered
:
7 NOVEMBER 2013
J U D G M E N T
WEPENER J:
[1] This appeal serves before us, with leave of the
magistrate, against the sentence imposed on the appellant. However,
appellant’s
legal representative’s heads of argument
contain arguments regarding the merits of the matter. Prior to the
hearing of the
matter we were advised that the appellant does not
persist with those arguments and that the argument on appeal is to be
contained
to the argument regarding sentence.
[2] The appellant was convicted on four counts of
contravening
s 5
(b) of the
Drugs and Drug Trafficking Act 140 of
1992
. The appellant was sentenced to a period of imprisonment of 8
years imprisonment on each count. The magistrate ordered that the
sentence would run concurrently with a sentence of 20 years
imprisonment which the appellant was then serving.
[3] Mr Van der Merwe argued that the sentence imposed by
the magistrate induced a sense of shock and that there is a startling
disparity
between the sentence imposed and the sentence which a court
of appeal would impose. There has been no argument or indication that
the magistrate misdirected herself in any way.
[4] The record is incomplete and does not fully set out
SAP 69 form which contains the previous convictions of the appellant.
However,
the magistrate remarked that the appellant had several
previous convictions for dealing in drugs. The prosecutor, when
reading
out the appellant’s previous convictions, placed the
following on record and the appellant admitted it.
‘
Aanklaer
lees inhoud van SAP 69 in die rekord
Die datum 15 Desember 1978, oortreding, opsetlike saakbeskadiging,
vensters, saak nommer 514897. Ingevolge Artikel 297(1)(A)(2)
op die
29ste Januarie 1979 word die beskuldige gevonnis. Ingevolge Artikel
297(1)(A)(2) Wet 51/1977 word beskuldige se vonnis uitgestel
vir ‘n
tydperk van drie (3) jaar.
Dan, op die 5de Desember 1979 word die beskuldige
gevonnis tot drie (3) houe met die ligte rottang, poging tot
huisbraak met die
opset om te steel.
Op die 19de Desember
1978, vier (4) houe met ‘n ligte rottang ingevolge Artikel 294
van Wet 51/1977, huisbraak met die opset
om te steel en diefstal.
Op die 19de November 1983, vyf (5) jaar gevangenisstraf,
handel in mandrax, ses tablette.
Op die 11de Maart
1991, twaalf (12) maande gevangenisstraf, daarbenewens word
beskuldigde gevonnis tot drie (3) jaar gevangenisstraf,
opgeskort vir
vyf (5) jaar op die volgended voorwaardes: Dat die beskuldigde nie
weer skuldig bevinfd word aan ‘n oortreding
van Artikel 2(A) of
2(B) van Wet 41/1971 nie, welke oortreding gepleeg is gedurende die
tydperk van opskorting en waarvoor hy gevonnis
word tot onopgeskorte
gevangenisstraf van ten minste twaalf (12) maande gevangenisstraf, al
dan nie. Die bepalings van Artikel
2(A) en 2(B) Wet 41/1971 is aan
beskuldigde verduidelik. Oortreding, handel dryf in mandrax,
een-en-sestig tablette.
Edelagbare, dis
twaalf (12) maande gevanenisstraf, daarbenewens word die beskuldigde
gevonnis tot drie (3) jaar gevangenisstraf,
opgeskort vir vyf (5)
jaar.
Dan die 11de Maart
1991, Wet 140/1992 van die Wet op Dwelmmiddels en Dwelmsmokkelary,
handel dryf in ‘n gevaarlike afhanklikheidstof
of ongewenste
afhanklikheidsvormende stof, te wete dagga. Aanklagte saamgeneem vir
doeleindes van vonnis, twaalf (12) jaar gevangenisstraf.
11 Maart 1991,
misbruik van afhanklikheidsvormende stowwe en rehabilitasie sentrums,
besit, gebruik of handel in verbode afhanklikheidsvormende
medisyne
of plant, Wet op Dwelmmidels en Dwelmsmokkelary, handel dryf in ‘n
gevaarlike afhanklikheidsvormende stof of ongewenste
afhanklikheidsvormende stof te wete dagga, drie (3) jaar
gevangenisstraf, welke gevangenisstraf opgeskort words vir vyf (5)
jaar
op die volgende voorwaardes: Dat beskuldigde nie weer skuldig
bevind word aan ‘n oortreding van Artikel 2(A) of 2(B) van Wet
41/1971 nie, welke oortreding gepleeg is gedurende die tydperk van
opskorting en waarvoor hy gevonnis word tot onopgeskorte
gevangenisstraf
van ten minste twaalf (12) maande gevangenisstraf.
Die verbode afhanklikheidvormende medisyne word ingevolge Artikel 8
van Wet
41/1971 aan die Staat verbeurd verklaar.
Weereens die 11de
Maart 1991, misbruik van die afhankliksheidsvormende stowwe en
rehabilitrasie sentrums, ‘n verdere drie
(3) jaar
gevangenisstraf, welke opgeskort vir vyf (5) jaar op die volgende
voorwaardes: Dat die bskuldigde nie weer skuldig bevind
word aan ‘n
oortreding van Artikel 2(A) of 2(B) van Wet 41/1971 nie, welke
oortredings gepleeg is gedurende die tydperk van
opskorting en
waarvoor hy gevonnis word tot onopskorte gevangenisstraf van ten
minste twaalf (12) maande gevangenisstraf. Die bepalings
van Artikel
2(A) en 2(B) Wet 41/1971 is aan beskuldigde verduidelik. Verbode
afhanklikheidsvermonde medisyne word ingevolg Artikel
8 van Wet
41/1971 aan die Staat verbeurd verklaar.
Edelagbare, as ek
dit reg verstaan, dan word die aanklagte op die datum van 11 Maart
1991 is almal saamgevat dan en ‘n vonnis
van twaalf (12) jaar
gevangenisstraf opgele, plus dan ‘n verdere drie jaar wat
opgeskort is vir ‘n tydperk van vyf
jaar.
Edelagbare, dan is
daar ‘n verdere vorige veroordeling wat op die 23ste Januarie
2002 te Johannesburg opgele is aan beskuldigde
een vir handel in
kokaine, ‘n oortreding van Artikel 5(B) van Wet 140/1992,
gevonnis twintig (20) jaar gevangenisstraf.’
This, to say the least, is a formidable record.
[5] Mr Van der Merwe referred us to sentences imposed in
two cases and argued that, comparatively speaking, the sentence in
this
matter is out of kilter. See
S v Randall
1995 (1) SACR
599
(C) and
S v Mc Keevey
2000 (1) SACR 410
(W).
[6] The State, on the other hand, referred to case law
where higher sentences were imposed for convictions of a lesser
nature. I
am of the view that the sentences imposed in other cases
can only be a guideline and that the offence and the circumstances in
each case vary. Lewis AJA (as she then was) said in
S v Jimenez
2003 (1) SACR 507
(SCA) at para 6 as follows:
‘
[6] Counsel for the appellant argued before us
that, on a comparative assessment of other sentences imposed for the
commission
of similar offences, the sentence was disturbingly
inappropriate. Indeed, it is somewhat higher than sentences imposed
recently
in similar circumstances: see, for example,
S v Hightower
1992 (1) SACR 420
(W);
S v Randall
1995 (1) SACR 559
(C);
S
v Opperman
1997 (1) SACR 285
(W);
S v Homareda
1999 (2)
SACR 319
(W); and
S v Mkhize
2000 (1) SACR 410
(W) where the
sentences for trafficking in drugs have ranged from an effective
period of five to ten years' imprisonment. Counsel
was hard-pressed
to argue that there was a shocking disparity between these sentences
and the sentence of 12 years imposed on the
appellant. Furthermore,
while it may be useful to have regard to sentences imposed in other
similar cases, each offender is different,
and the circumstances of
each crime vary. Other sentences imposed can never be regarded as
anything more than guides taken into
account together with other
factors in the exercise of the judicial discretion in sentencing.’
[7] The Supreme Court of Appeal made it plain in
S v
Fraser
1987 (2) SA 859
(A) at 863 C – D that ‘it is
an idle exercise to match the colour of the case at hand and the
colours of other cases
with the object of arriving at an appropriate
sentence’. Ultimately, each case must be decided in the light
of its peculiar
facts.
[8] Save for his conviction in 1983, during 1991 the
appellant received a sentence of 12 years imprisonment for a similar
conviction.
Taking that sentence into account his clean record for
the next 12 years comes as no surprise. Having served the 12 years
imprisonment
(or a slightly lesser period due to parole), the
appellant was then selling drugs again during 2000. It was for these
offences,
shortly after the appellant had served a portion of the 12
year sentence, that he was eventually sentenced by the magistrate in
this matter for dealing in drugs.
[9] I am of the view that the appellant’s previous
convictions indeed play a meaningful role as he has shown that as
soon
as he is out of prison he just continues with his unlawful
conduct. There are times when the criminal’s personal
circumstances
must play a lesser role than the duty of the courts to
assist to stop dealers in drugs from continuing with their trade. See
S v Vilakazi
2009 (1) SACR 552
(SCA) at para 58:
‘
Once it becomes clear that the crime is deserving
of a substantial period of imprisonment the questions whether the
accused is married
or single, whether he has two children or three,
whether or not he is in employment, are in themselves largely
immaterial to what
that period should be, and those seem to me to be
the kind of 'flimsy' grounds that Malgas said should be avoided.’
Also see
S v Jimenez
at 520 para 23 and
S v
Mhlakeza and Another
1997 (1) SACR 515
SCA at 519 e. Olivier JA
said
S v Jimenez
at 523d:
‘
The magistrate took into account a previous
conviction of the appellant, 20 years earlier. It had lapsed, but
this Court held that
it could be taken into account for the limited
purpose of showing that the crime had been committed in spite of a
previous warning.
This does not distinguish Morebudi from the appeal
now under consideration, because it is clear that the present
appellant knew
that he was acting illegally and was aware of the
seriousness of the offence in this country.’
[10] The appellant and his associates were running a
business of selling drugs on the street corners in the centre of
Johannesburg.
Their conduct can only be described as criminal and
reprehensible.
[11] In
S v Jimenez
, Olivier JA said:
‘
[17]
It is a salutary rule that this Court will not readily differ from a
Court
a
quo
in its assessment either of the factors to be regarded to or of the
value to be attached to them. I also associate myself with
what
Kriegler J said in
Key
v Attorney-General, Cape Provincial Division and Another
[1996] ZACC 25
;
1996
(2) SACR 113
(CC)
(1996 (4) SA 187
;
1996 (6) BCLR 788)
at 120 - 1
(SACR) and 195 (SA) in para [13]:
“
In any democratic criminal
justice system there is a tension between, on the one hand, the
public interest in bringing criminals
to book and, on the other, the
equally great public interest in ensuring that justice is manifestly
done to all, even those suspected
of conduct which would put
them beyond the pale. To be sure, a prominent feature of that tension
is the universal and unceasing
endeavour by international human
rights bodies, enlightened legislatures and courts to prevent or
curtail excessive zeal by State
agencies in the prevention,
investigation or prosecution of crime. But none of that means
sympathy for crime and its perpetrators.
Nor does it mean a
predilection for technical niceties and ingenious legal stratagems.
What the Constitution demands is that the
accused be given a
fair trial. Ultimately, as was held in
Ferreira v Levin
,
fairness is an issue which has to be decided upon the facts of each
case, and the trial Judge is the person best placed to take
that
decision. At times fairness might require that evidence
unconstitutionally obtained be excluded. But there will also be times
when fairness will require that evidence, albeit obtained
unconstitutionally, nevertheless be admitted.”
Consequently, I am satisfied that although there was,
technically speaking, a misdirection on the part of the Court
a
quo
, it did not constitute a material misdirection.
[18]
The ultimate question is whether the sentence of 12 years'
imprisonment imposed by the Court
a
quo
was a fair and reasonable one. (See
S
v Peters
1987 (3) SA 717 (A) at 727F - H;
S
v L
1998
(1) SACR 463 (SCA)
at 468
f
-
j
.)
I think it was.
[19] For a considerable time our courts have viewed
dealing in 'hard' drugs, such as heroin and cocaine, in a very
serious light.
In
S v Gibson
1974 (4) SA 478
(A) at 481H this
Court,
per
Holmes JA, welcomed the effort of the Legislature:
“
to stamp out the growing
social evils of the abuse of drugs as a wise and laudable one. No
doubt, too, that, for example, a supplier
for gain may in general be
regarded as a vicious person who needs to be put down, for in the
drug traffic he is an indispensable
evil link in the chain leading to
the consumer.”
[20]
In
S
v Hightower
1992
(1) SACR 420 (W)
, a case concerned with dealing in cocaine,
the Witwatersrand Local Division of the Supreme Court quoted with
approval (
per
MacArthur J; Mahomed J concurring) what Schreiner JA had said in
R
v Karg
1961 (1) SA 231
(A) at 236B - C, viz:
“
It is not wrong that the
natural indignation of interested persons and of the community
at large should receive some recognition
in the sentences that Courts
impose, and it is not irrelevant to bear in mind that if sentences
for serious crimes are too lenient,
the administration of justice may
fall into disrepute and injured persons may incline to take the law
into their own hands.”
MacArthur J, at 422
j
, continued:
“
The deterrent aspect,
however, remains as important as ever. I have already mentioned this
aspect briefly and I would add that anyone
who wishes to deal in a
dangerous dependence-producing drug like cocaine must be made to
realise that the courts will not be sympathetic,
but will exact a
heavy price upon anyone who is found guilty of that offence.”
[21] There
is ever-increasing smuggling of hard drugs into our country,
described fully by Steyn AJ in
S
v
Randall
1995
(1) SACR 559
(C)
at 566
g
-
i
.
The learned
Judge continued (at 566
i
- 567
a
)
with the following remarks, with which I fully associate myself:
“
Drug dealers are
unscrupulous criminals. They will use the weak, the gullible, and,
may I add, the greedy. They are without conscience.
They do not care
for those who facilitate their evil objectives, nor do they have a
concern about the lives they ruin by trafficking
in drugs. Society is
at risk should it hesitate to use every legitimate mechanism at its
disposal to protect itself against their
destructive designs. One of
these weapons - and I emphasise that it is only one of them - is to
make it clear to courier and principal
alike, that the game is not
worth the candle and that the price society exacts for
transgressions will not be tempered by
concern for the plight of the
weak and the greedy.”
[22] The learned Judge also emphasised (at 567
c
-
d
) that in a multi-pronged strategy combating the
importation and distribution of dangerous drugs,
'the courts have their role to play in imposing sentences which speak
clearly of society's determination to fight this danger
with all the
weapons at its disposal'.
[23]
It was also laid down by Steyn AJ (at 567
f
-
h
)
that the personal circumstances of couriers of hard drugs, mitigating
though they may be, are outweighed by the public need for
protection
through the imposition of deterrent sentences. (See also
S
v Sebata
1994
(2) SACR 319
(C)
at 322
j
et seq
.)
[24] In
Sebata (supra
) Steyn AJ referred with
approval (at 323
g et seq
) to the judgment of Lord Lane CJ and
Talbot J in
R v Aramah
1983 Crim LR (CCA) 271 where the
learned Judges remarked on the vice of dealing in hard drugs:
“
(F)irst of all, they are
easy to handle. Small parcels can be made up into huge numbers of
doses. Secondly, the profits are so enormous
that they attract the
worst type of criminal. Many of such criminals may think, and indeed
do think, that it is less dangerous
and more profitable to traffic in
heroin or morphine than it is to rob a bank. It does not require
much imagination to realise
the consequential evils of corruption and
bribery which the huge profits are likely to produce. (T)his may be a
fruitful source
of violence and internecine strife. Fourthly, the
heroin taker, once addicted (and it takes very little experimentation
with the
drug to produce addiction), has to obtain supplies of the
drug to satisfy the terrible craving. It may take anything up to
hundreds
of pounds a week to buy enough heroin to satisfy the
craving, depending upon the degree of addiction of the person
involved.
The only way, it is obvious, in which sums of this order
can be obtained is by resorting to crime. This in its turn may be
trafficking
in the drug itself and disseminating accordingly its use
still further.
Fifthly, and last, and we have
purposely left it for the last, because it is the most horrifying
aspect, comes the degradation and
suffering and frequently the death
which the drug brings to the addict. It is not difficult to
understand why in some parts
of the world traffickers in heroin in
any substantial quantity are sentenced to death and executed.
Consequently anything which the
courts of this country can do by way of deterrent sentences on those
found guilty of crimes involving
these class ''A'' drugs should be
done.”
What the learned Judges said of heroin and morphine,
applies equally to cocaine (see
S v Sebata (supra
at 325
a
-
b
)).
[25] To the list of evils enumerated above must be
added the devastating effect the addiction to hard drugs has on the
family,
relations, employees and friends of the user. Families fall
apart, are bankrupted and drained emotionally by the experience of
seeing a family member, usually a youth, becoming addicted and
changing from a healthy, lovely child to a human wreck. No wonder
that in several countries and cultures, the smuggling of hard drugs
is punishable by death. (For details, see D P van der Merwe
Sentencing
at para 12-5.)
[26]
The aversion with which trafficking in hard drugs, especially the
smuggling thereof into our country, is viewed by the
courts, is
illustrated by repeated statements to this effect, and by the
imposition of long terms of imprisonment, eg
S
v Opperman
1997
(1) SACR 285 (W)
at 288
i
et seq
;
S
v Homareda (supra
at 326) and
S
v Tshabalala
1999
(1) SACR 412
(C)
at 427
a
;
S
v Howe
1989 (2) SA 473
(W) at 478E - G.
[27] In spite of all these statements and despite heavy
sentences imposed by the courts the trafficking in drugs and the
employment
of couriers to smuggle hard drugs into our country has not
abated or diminished. On the contrary, only the most naive would not
be aware of the ever-increasing stream of drugs illegally coming into
our country via international ports and airports. We are
becoming
known as a haven for dealers in drugs and our youth, students and
schoolchildren are singled out as soft targets.
Against this
background, the legislature has over the years steadily increased the
punishment to be meted out to dealers in drugs,
including couriers
from foreign countries. In 1971 the Abuse of Dependence-Producing
Substances and Rehabilitation Centres Act
41 of 1971, was enacted.
For illegal dealing in prohibited drugs, the discretion of the courts
was taken away: first offenders
had to be given a minimum
sentence of five years' imprisonment; second and subsequent offenders
had to be given a minimum
of ten years.
[28] In 1986 the courts were given back their
discretion in sentencing. (See the Abuse of Dependence-Producing
Substances and Rehabilitation
Centres Amendment Act 101 of 1986.) In
1990, however, by the Abuse of Dependence-Producing Substances and
Rehabilitation Centres Amendment
Act 78 of 1990, the maximum
sentences previously prescribed were raised substantially.
[29] All previous statutory provisions dealing with
drug offences were repealed in 1992 by the
Drugs and Drug
Trafficking Act 140 of 1992
.
Section 17
prescribes maximum sentences.
In the case of dealing in any dangerous dependence-producing
substance or any undesirable dependence-producing
substance, any
court, including a magistrate's court, may impose a sentence of
imprisonment for a period not exceeding 25 years,
or both such
imprisonment and such fine as the court may deem fit to impose
(ss 5
(b)
,
17
(e)
and
64
).
[30] Finally,
s 51
of the
Criminal Law Amendment Act
105 of 1997
imposed minimum sentences for certain serious offences,
including,
inter alia
, dealing in cocaine. The section
provides that a regional court or High Court that has convicted a
person of such offence
may sentence the person, in the case of
(i) a first offender, to
imprisonment for a period not less than 15 years;
(ii) a second offender, to
imprisonment for a period not less than 20 years; and
(iii) a third or subsequent
offender, to imprisonment for a period not less than 25 years.
The maximum sentences imposed by the 1992 Act remain
intact.
[31] In my view, it is proper for a court considering
sentence to have regard to the legislative policy as expressed
in legislation
dealing with sentencing. If this were not so, legal
and social confusion would ensue, leading to a conflict between the
legislator
and the courts. In imposing sentences for drug-related
crimes, courts must take cognisance of the persistent policy of the
Legislature
that these crimes must be viewed in a most serious
light and heavy sentences imposed. (See also
S v Howe (supra
at 478E - G);
S v Gibson
1974 (4) SA 478
(A) at 481H
per
Holmes JA.)
[32]
In short, this is not an area where 'maudlin sympathy' (the
expression used by Holmes JA in
S
v Rabie
1975 (4) SA 855
(A) at 861C - D) should be allowed to override common
sense and social and legislative policy. Nor should Judges be
swayed
by misplaced pity (
intempestiva
misericordia
- an expression used by Van der Linden
Supplement
,
quoted by Joubert AJ in
S
v Opperman
1997
(1) SACR 285 (W)
at 292; see also
S
v Zinn
1969 (2) SA 537
(A) at 541).
[33] The Court
a quo
correctly found that the
appellant had shown no remorse. He also did not testify under
oath as to the alleged remorse. In
S v Seegers
1970 (2) SA 506
(A) at 511G - H, Rumpff JA made a remark which has been followed in
numerous cases and is part of daily practice in the criminal
courts:
“
Remorse, as an indication
that the offence will not be committed again, is obviously an
important consideration, in suitable
cases, when the deterrent effect
of a sentence on the accused is adjudged. But, in order to be a valid
consideration, the penitence
must be sincere and the accused must
take the Court fully into his confidence. Unless that happens the
genuineness of contrition
alleged to exist cannot be determined.”
[34]
I am also not impressed by the argument that it will be hard
for the appellant to be incarcerated for a long period in
a foreign
country. That will happen because the appellant chose our country for
the commission of a vile crime. In
S
v Lister
1993
(2) SACR 228
(A)
this Court,
per
Nienaber JA said at 232
g
-
h
:
“
To focus on the well-being
of the accused at the expense of the other aims of sentencing,
such as the interests of the community,
is to distort the process and
to produce, in all likelihood, a warped sentence.”
[35] Even if one accepts the alleged personal
circumstances of the appellant - he chose not to confirm them under
oath - they are
not out of the ordinary and certainly do not
deserve special, more lenient treatment.
[36] This Court must also be sensitive to the message
it sends out to the legislator, the public and drug dealers here and
overseas.
Our country is fast becoming known as a profitable and
easily accessible market for drug dealers and drug smugglers. Because
of
the relatively light sentences our courts impose for these
offences, compared to many other countries and because of the
particularly
lenient parole conditions prevailing here at present,
illegal drug trafficking has obviously become a profitable business.
The
appellant was prepared to take the risk of a confrontation with
our criminal justice system in return for a remuneration of
US$5
000. The sentences imposed by the courts must make it clear to
intended drug couriers that the game is not worth the candle.’
[12] I am also of the view that the fact that appellant
was the actual dealer, supplying the drugs to other persons, is an
aggravating
factor of the matter. See
S v Jimenez
at 523a.
[13] Save for two of the convictions now under
consideration, the appellant’s convictions relate to offences
committed on
different dates. He is clearly an unrepentant drug
dealer. The members of the South African Police went to great lengths
to expose
the business which the appellant ran and approached the
area where the appellant and his associates sold drugs to members of
the
public by taking videos of all the transactions which took place
and so to expose the appellant and his coperpetrators. The evidence
shows that the appellant was indeed the person in charge of this drug
dealing business.
[14] The sentence imposed by the magistrate is severe.
It was imposed on the basis that the appellant had also received a
sentence
of twenty years imprisonment at the time when the sentence
was imposed. However, the effect of the sentence of twenty years
imprisonment
was largely neutralised by the order of the learned
magistrate that the sentence in this matter was to run concurrently
with that
sentence. That conviction and sentence, i.e. the sentence
of twenty years imprisonment, have in the meantime been set aside on
appeal and we should approach the matter on the basis that no such
conviction and sentence is to be taken into account.
[15] Having regard to the fact that it seems to be the
appellant’s way of life to sell drugs to others his conduct, in
my
view, calls for a sentence which would not only prevent the
appellant from continuing with his business of selling drugs but be
a
warning to others who do so with the disastrous consequences upon
members of the general public and the community.
[16] The appellant should not have had the benefit of
bail pending the appeal. We do not know why it took 11 years for the
appeal
to be set down. In my view, had the appellant continued to
serve his sentence in 2005, he may well have been on his way to
parole.
The fact that his incarceration will only commence now, is
due to his own actions of applying for bail and not serving his
sentence.
It could never have been contemplated that the appellant
would not be sentenced a lengthy period of incarceration.
[17] In
Kwanape v S
[2013] JOL 30935
(SCA) Petse
JA, said:
‘
[8] It goes without saying that the delays
experienced in this matter are entirely unacceptable for obvious
reasons. In terms
of s 35(3)(o) of the Constitution the appellant has
a right to a fair trial which includes the right of appeal to a
higher court.
Consequently the delays experienced in this case
undermined or compromised those rights in circumstances where there
can be no
justification therefor in an open and democratic society.’
The delay, however, cannot affect the sentence to be
imposed on the appellant.
[18] I am of the view that having regard to the
seriousness of the offences committed by the appellant, the sentence
imposed by
the magistrate is unassailable. Heher JA said in
S v
Keyser
2012 (2) SACR 437(SCA)
at para 30:
‘
[30] The sentence was undoubtedly a heavy one.
In this regard much of what was said in the judgments of Lewis AJA
and Olivier JA
in
S v Jimenez
2003 (1) SACR 507
(SCA) ([2003]
1 All SA 535)
, concerning the correct approach to sentencing drug
dealers, can be applied mutatis mutandis to the facts of this case
and need
not be repeated. To my mind the most significant
distinguishing feature is the quantity of the drugs carried in by the
appellant.
While the street value (well over R2 million, according to
the expert evidence) is materially more than in
Jimenez
and
the other authorities referred to by counsel, more important is the
number of lives potentially affected by the abuse of the
drug. The
appellant must have reconciled himself to sowing the seeds of
destruction, directly and indirectly, in the lives of a
substantial
number of people, including children. That consideration alone far
outweighs his personal circumstances and justifies
a very long
incarceration.’
This passage was referred to, with approval, by the
Constitutional Court in
Cwele
v S
[2012] 4 All SA 497
(CC) at
para [33].
These words are quite apt in this matter, the appellant
having been exposed as the seller of the drugs to all end sundry for
his
own financial benefit.
[19] Finallly, Bosielo AJP (as he then was) said in
S
v Bartlette
(CA&R 92/07)
[2008] ZANCHC 5
(15 February 2008)
at paras 3 – 11:
‘
[3] It remains a salutary and well-established
principle of our law that sentencing resides pre-eminently within the
discretion
of the trial court. The powers of an appeal court to
interfere with the sentence imposed by the trial court are therefore
clearly
and seriously circumscribed. Undoubtedly, this is intended to
avoid unjustified erosion of the sentencing powers and discretion
of
the trial court by the appeal court. Over the years our courts have
given different interpretations to the test to determining
when the
appellate court can interfere with a sentence imposed by the trial
court. Regrettably in the process some subtle confusion
has crept in
and created some serious uncertainty. However, the acid test to
determine when interference with a sentence by an
appeal court is
justified was, in my view, lucidly and authoritatively enunciated in
S v Kgosimore
1999(2) SACR 238 (SCA) at p 241 para [10] where
Scott JA stated the following:
“
[10] It is trite law that sentence is a matter
for the discretion of the court burdened with the task of imposing
the sentence.
Various tests have been formulated as to when a Court
of appeal may interfere. These include whether the reasoning of the
trial
court is vitiated by misdirection or whether the sentence
imposed can be said to be startlingly inappropriate or to induce a
sense
of shock or whether there is a striking disparity between the
sentence imposed and the sentence the Court of appeal would have
imposed. All these formulations, however, are aimed at determining
the same thing; viz whether there was a proper and reasonable
exercise of the discretion bestowed upon the court imposing sentence.
In the ultimate analysis this is the true inquiry. (Compare
S v
Pieters
1987 (3) SA 717
(A) at 727G - I.) Either the discretion was
properly and reasonably exercised or it was not. If it was, a Court
of appeal has no
power to interfere; if it was not, it is free to do
so. I can, accordingly, see no juridical basis for the stricter test
suggested
by counsel; nor is there anything in s 316B of the Act, or
for that matter s 310A, to suggest otherwise. (See also S v Anderson
1964 (3) SA 494
(A).) It follows that, in my view, whether it is the
Attorney - General (now the Director of Public Prosecutions) or an
accused
who appeals against a sentence, the power of a Court of
appeal to interfere is the same.”
[4] As the confusion surrounding this test did not
appear to have dissipated, the Supreme Court of Appeal saw the need
to define
if not refine the test further. In S v Malgas 2001(1) SACR
469 (SCA) at p478 para[12] Marais JA elaborated on the test as
follows:
”
A court exercising appellate jurisdiction cannot,
in the absence of material misdirection by the trial court, approach
the question
of sentence as if it were the trial court and then
substitute the sentence arrived at by it simply because it prefers
it. To do
so would be to usurp the sentencing discretion of the trial
court. Where material misdirection by the trial court vitiates its
exercise of that discretion, an appellate Court is of course entitled
to consider the question of sentence afresh. In doing so,
it assesses
sentence as if it were a court of first instance and the sentence
imposed by the trial court has no relevance. As it
is said, an
appellate Court is at large. However, even in the absence of material
misdirection, an appellate court may yet be justified
in interfering
with the sentence imposed by the trial court. It may do so when the
disparity between the sentence of the trial
court and the sentence
which the appellate Court would have imposed had it been the trial
court is so marked that it can properly
be described as 'shocking',
'startling' or 'disturbingly inappropriate'. It must be emphasised
that in the latter situation the
appellate court is not at large in
the sense in which it is at large in the former. In the latter
situation it may not substitute
the sentence which it thinks
appropriate merely because it does not accord with the sentence
imposed by the trial court or because
it prefers it to that sentence.
It may do so only where the difference is so substantial that it
attracts epithets of the kind
I have mentioned. No such limitation
exists in the former situation.”
[5] In determining whether the sentence imposed on the
appellant is disturbingly inappropriate or shockingly
disproportionate to
the crime for which he was convicted, the court
must consider the offence, its effects and its consequences or impact
on the broader
society and balance that against the personal
circumstances of the appellant.
[6] There is no doubt that the offence for which the
appellant was convicted is very serious. Both counsel for the
appellant and
respondent were agreed on this aspect. It is clear from
the charge sheet that the appellant was in the serious business of
dealing
in and distributing quite a bewildering array of drugs which
included 48 ecstasy tablets, 2 grams of heroin, 9 LSD tablets, 1 full
moon cocaine crystal, 2 halfmoon cocaine crystal, 1 quarter cocaine
crystal, 3 grams of cocaine, 7 grams of heroin, 150 ecstasy
tablets,
10 grams of heroine and another 10 grams of cocaine. The total value
of all these drugs amounted to R 26 000-00.
[7] I now have to consider and weigh the appellant’s
personal circumstances against the nature and seriousness of this
offence
as fully set out above. At the time of the commission of this
offence the appellant was 29 years old with two minor children; since
the appellant lost his job in Johannesburg in 1997, he has never been
employed; it is not clear if the appellant is married or
not; the
appellant has one previous conviction for assault with intent to
cause grievous bodily harm.
[8] In considering an appropriate sentence, the
magistrate found that the interests of society far outweighed the
personal circumstances
of the appellant. He furthermore, found,
correctly in my view, that the effects and impact of drug abuse in
our communities are
far-reaching if not catastrophic. This motivated
him to find that the element of deterrence and retribution should
enjoy precedence
over reformation and rehabilitation of the
appellant. I can find no fault with this approach.
[9] The problem of drug-trafficking has haunted mankind
for many years. With the passage of time, it has metamorphosed into a
huge
and intricate business enterprise which involves drug-lords,
couriers, so-called runners and those who buy and use it. As far back
as 1989, Kriegler J (as he then was) had the following to say about
drugs and their effects in
S v Howe
1989(2) SA 473 (W) at 478
E-G.
“
Die gebruik van dwelmmiddels is verwerplik. Oor
die jare heen het die Staat, dit wil sê Wetgewer, uitvoerende
gesag en die
regsplegende gesag, by herhaling sy onwrikbare teenstand
teen hierdie maatskaplike euwel te kenne gegee. Te meer nog is daar
stryd
gevoer teen handelaars in dwelms. Die verfoeilikheid van hul
rol is by herhaling beklemtoon. Hulle teer op verslaafdes. Hulle poog
om hul bose besigheid in stand te hou en uit te brei. Dit doen hulle
in die wete dat hul handelsvoorraad moreel verwerplik en maatskaplik
benadelend is. Hulle is ook 'n noodsaaklike skakel in die
verspreidingsnetwerk. Dit geskied met winsbejag.”
[10] I strongly believe that it is no exaggeration to
state that, with the effluxion of time, instead of abating the
problem of
dealings in drugs concomitant with drug abuse has become
pandemic. It has developed into a serious malignant cancer which is
fast
eroding the social and moral fabric of our society. This is
notwithstanding the tough stance taken by the Legislature, coupled
with the severe sentences which our courts impose. There is hardly a
day that passes without a report in the media of some people
arrested
for either dealing in drugs or using drugs or importing them into our
country. In recent times our country has been seriously
invaded by a
variety of drugs which are imported from some overseas countries.
Quite paradoxically, our country has become a safe
haven for
drug-lords since the advent of democracy. We are caught in the big
and intricate web of international drug-trafficking.
What is even
more frightening is how drugs have found their way into our schools
which used to be regarded as safe citadels for
our children. Our
youth, students and even school children are at a serous risk of
becoming drug addicts. In the quest for quick
profit, the
unscrupulous drug peddlers make no distinction. Nobody is spared from
this scourge as drug-dealers spread their tentacles
more wider. They
sell their drugs to everybody including our youth, students and
school children. In fact because of their youthfulness,
naivety, peer
pressure and simple gullibility, our youth have become their easy
target.
[11] It is not surprising that Steyn AJ described drug
dealers as follows in
S v Randall
1995 (1) SACR 559
(C) at
566(i):
“
Drug dealers are unscrupulous criminals. They
will use the weak, the gullible, and, may I add, the greedy. They are
without conscience.
They do not care for those who facilitate their
evil objectives, nor do they have a concern about the lives they ruin
by trafficking
in drugs. Society is at risk should it hesitate to use
every legitimate mechanism at its disposal to protect itself against
their
destructive designs. One of these weapons - and I emphasise
that it is only one of them - is to make it clear to courier and
principal
alike, that the game is not worth the candle and that the
price society exacts for transgressions will not be tempered by
concern
for the plight of the weak and the greedy.”
Commenting further on this ubiquitous and intractable
problem Steyn AJ once again expressed himself strongly as follows in
S v Sebata
1994(2) SACR 319 (C) at 325b-e
“
Those who deal in these drugs, or who participate
in the process of making such dealing possible, must expect to
receive sentences
which include substantial periods of imprisonment
from our Courts. All the decisions emphasise the devastating impact
the substances
have on the lives of those who can become exposed to
them, more especially the youth. It is therefore the duty of the
Courts, in
so far as sentencing plays its role as a deterrent, to use
the sentencing process as effectively and wisely as possible in
combating
the incidence of these offences.
It is trite to say that each case must depend on its own
facts. The personal factors operating in appellant's favour are that
he
is a relatively young person and a first offender. However, the
following considerations need also to be given weight when one has
to
assess an appropriate penalty. Appellant did not give evidence as to
what his role was. Was he merely a courier or was he part
of a
broader conspiracy to import cocaine into a new market? He expressed
no remorse, he entered the country illegally on a false
passport and
he failed to co-operate with the police in their attempts to uncover
those who were perhaps even more seriously involved
in the commission
of the offence.”
I am in respectful agreement with the above-quoted apt
description of drug dealers and the strong aversion expressed by the
court
against drug-dealers.’
[20] Having regard to the facts in this case, in
particular the appellant’s continued drug dealing over a period
of many years
and without showing any remorse for his actions, I am
of the view that the appellant is a person deserving of the sentence
imposed
by the magistrate.
[21] The appellant was incarcerated from 2002 to July
2005, i.e. a period of 3 years on the conviction and sentence of 20
years
imprisonment, which have been set aside. This, the magistrate
could not take into account as the conviction had not been set aside
when the appellant was convicted and sentenced by the magistrate in
the current matter. This would, in my view, be an appropriate
case to
take the period of imprisonment so served into account by antedating
the sentence by 3 years. The appellant should have
the benefit of 3
years incarceration as if it was served for the conviction in this
matter.
[22] We have considered whether to remit the matter to
the magistrate for re-consideration of sentence. However, having
regard to
the long delay and the fact that all factors are before us,
it would be in the interests of justice to finalise the matter.
[23] In the circumstances the sentence imposed by the
magistrate is set aside and substituted with the following:
‘
The accused is sentenced to a period of 8 years
imprisonment on each of the four counts. The sentence is antedated to
7 November
2010.’
WEPENER J
JUDGE OF THE GAUTENG HIGH COURT
JOHANNEBURG LOCAL DIVISION
I agree.
VALLY J
JUDGE OF THE GAUTENG HIGH COURT
JOHANNEBURG LOCAL DIVISION
APPEARANCES
LEGAL REPRESENTITIVE
FOR APPELANT: S.W. Van der Merwe
COUNSEL FOR RESPONDENT: F. Mohamed