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[2010] ZAWCHC 494
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Fredericks v S (A399/2010) [2010] ZAWCHC 494 (15 October 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
CASE
NUMBER:A399/2010
DATE:15 OCTOBER 2010
In
the matter between:
DAWID
FREDERICKS
….....................................................................
Appellant
and
THE
STATE
….................................................................................
Respondent
JUDGMENT
DAVIS,
J
:
The
appellant has appealed against the sentence which was imposed upon
him by the magistrate. He had been charged with the offence
of
dealing in cannabis to the amount of 6.6 kilograms in contravention
of section 5, the Drugs & Drug Trafficking Act 140
of 1992. He
pleaded guilty pursuant to a statement which was prepared in terms
of
section 112(2)
of the
Criminal Procedure Act 51 of 1977
. The
Court was satisfied that the appellant was guilty of being in
possession of 6.6. kilograms of cannabis and accordingly convicted
him. Pursuant to that conviction, the appellant was sentenced to
four years imprisonment and with the leave of the court a
quo
comes
on appeal against sentence.
At the time of the
sentence, appellant was 35 years old and had previous convictions
for theft, assault with intent to do grievous
bodily harm and for
contravention of the provisions of the Drug & Drug Trafficking
Act. In this regard the following becomes
relevant: In 2005 the
appellant was found in possession of one gram, resulting in a
sentence of R200.00 or 20 days imprisonment
on 20 September 2006.
Admittedly in a case, inexplicably concluded two years later, 20
September 2008, he was convicted and sentenced
to a term of 12
months imprisonment to run concurrently with the two years sentence.
On 19 April 2008, a further sentence was
imposed, in which it
appears the amount of dagga was 170 kilograms.
One only has to state
this impressive record with regard to drug trafficking to realise
that, whatever other consideration should
have been taken into
account, namely the personal circumstances of the appellant in
particular in the present case, the magnitude
of the offence,
coupled with the previous record and the interests of society,
encapsulated in the Drugs & Drug Trafficking
Act, namely that
drug dealing and drug trafficking is a pernicious and cancerous
influence upon society, to realise that all
these factors support no
other conclusion than the one arrived at by the magistrate. In any
event, it is trite law that a court,
sitting on appeal against
sentence, can only intervene where there has been some serious and
significant error committed by the
magistrate in the evaluation of
the relevant circumstances that it would induce a sense of shock in
the appeal court.
To the contrary, I am
not shocked in the slightest by the sentence. No reasonable person
reading this record would be. For these
reasons I would, therefore,
dismiss the appeal and confirm both the conviction and the sentence
of four years imprisonment.
DONEN.
AJ
:
I agree.
DONEN.
AJ
DAVIS.
J
:
It is so ordered.
DAVIS.
J