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[2018] ZAGPJHC 670
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S v Nsofor (A166/2016) [2018] ZAGPJHC 670 (29 October 2018)

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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
APPEAL
CASE NO: A166/2016
DPP
REF:10/2/5/1 (2016/265)
In
the matter between:
THE
STATE
and
PHILLIP
NSOFOR
Accused
/ Appellant
JUDGMENT
BEZUIDENHOUT
AJ:
[1]
This is an appeal against the sentences imposed on the Appellant in
the Regional Court, Benoni on 17 October 2014. The appeal
brings into
focus sentencing principles regarding first-time offenders and the
serving of concurrent sentences in terms of
Section 280
of the
Criminal Procedure Act 51 of 1977
.
[2]
The Appellant was sentenced to an effective thirty years imprisonment
for the following offences:
[2.1] Count 2: Contravention of
Section 2(1)(e)
of the
Prevention of Organised Crime Act 121 of 1998
for conducting or participating in an enterprise through a pattern of
racketeering (racketeering) – twenty years imprisonment;
[2.2] Count 3:  Contravention of
Section 5(b)
of the
Drugs and Drug Trafficking Act 140 of 1992
in
that he dealt in 1529.19 grams of cocaine with a value of R764 595.00
(dealing in drugs) – twenty years imprisonment;
[2.3] Count 4:  Contravention of
Section 5(b)
of the
Drugs and Drug Trafficking Act 140 of 1992
in
that he dealt in 0.74 grams of methamphetamine, with a value of
R300.00 (dealing in drugs) – ten years imprisonment;
[2.4] Count 5:  Contravention of
Section 5(b)
of the
Drugs and Drug Trafficking Act 140 of 1992
in
that he dealt in 80 tablets of methamphetamine and 20 tablets of
methaqualone, with a total value of R4 000.00 (dealing
in drugs)
– ten years imprisonment;
[2.5] Count 6:  Contravention of
Section 5(b)
of the
Drugs and Drug Trafficking Act 140 of 1992
in
that he dealt in 0.45 grams of cocaine with a value of R500.00
(dealing in drugs) – ten years imprisonment;
[2.6] Count 7:  Contravention of
Section 5(b)
of the
Drugs and Drug Trafficking Act 140 of 1992
in
that he dealt in 6.50 grams of cocaine with a value of R6 000.00
(dealing in drugs) – ten years imprisonment;
[2.7] Count 8:  Contravention of
Section 49(6)
of the
Immigration Act 13 of 2002
– twelve months
imprisonment.
[3]
At the conclusion of the sentencing, the Trial Court ordered that the
sentences on Counts 2, 3 and 8 run concurrently (twenty
years
imprisonment) and that the sentences on Counts 4, 5, 6 and 7,
likewise, run concurrently (ten years imprisonment), the effective

term of imprisonment therefore being thirty years.
[4]
It is against this sentence that the Appellant, with leave from the
Trial Court, contends before us that a lesser effective
sentence of
between ten to fifteen years imprisonment be imposed.
[5]
The Appellant is a Nigerian citizen who entered the Republic of South
Africa (“South Africa”) on 28 May 2002 and
when his
Temporary Resident Permit expired in June of that year, he illegally
remained in South Africa until his arrest on 26 November
2009. The
trial ran for more than five years and the extent of the appeal
record comprises more than three thousand pages. It is
indicative of
the effort to which the State went to pursue the conviction against
the Appellant. During the appeal, Adv JA Badenhorst,
who was the
Prosecutor in the Trial Court, styled the trial as “
Hollywood-like
”
traversing continents of the world and which ultimately resulted
therein that the Appellant was convicted by the Trial Court
and
sentenced.
[6]
The facts of the matter are indeed storybook-like mixed with intrigue
and roleplay. It played itself out between events which
took place in
South Africa and ultimately, Brazil. In the period November 2004 to
November 2009, the Appellant conducted and participated
in a
racketeering enterprise of drug dealing. Under the guise of a cell
phone accessory outlet in Alberton, Gauteng, the Appellant
operated a
meaningful criminal enterprise. The evidence showed that he sold
cocaine, ecstasy and other drugs, on numerous occasions,
to drug
users. In August 2005, he arranged for a drug user to travel to
Argentina to secure cocaine. The drug deal in Argentina
never
materialised and the drug user returned to South Africa in August
2005. In October 2005, the same drug user travelled to
Brazil where
he was arrested with 4.8 kilograms of cocaine in his possession. He
was subsequently convicted and sentenced to direct
imprisonment in
Sao Paolo.
[7]
A Police Reservist in Alberton, who testified as a key witness in the
Trial, befriended the Appellant over time, and was asked
to perform
unlawful favours for the Appellant. This included the losing of
dockets and the planting of evidence to prosecute competing
drug
dealers. The Police Reservist ultimately infiltrated the enterprise
of the Appellant over a period of one and a half years.
The Appellant
wanted to eliminate drug dealing competition in the Alberton area.
The Appellant provided information on drug dealers
in the area and at
least three known drug dealers were arrested as a result of the
information provided by the Appellant. The Police
Reservist was
involved in Counts 4, 5, 6 and 7. An official project was registered
with the South African Police Service (“SAPS”),
which
ultimately resulted therein that authority was granted in terms of
the provisions of
Section 252
-A of the
Criminal Procedure Act 51 of
1977
, so that law-enforcement could make use of traps and undercover
operations to secure evidence so obtained.
[8]
The enterprise of the Appellant gained momentum and in 2009, the
Appellant, in an intricate scheme, arranged for another drug
mule to
travel to Brazil to collect cocaine which ultimately formed the
subject matter of Count 3. The drug mule was a registered
informant
of the SAPS and travelled to Brazil to collect the cocaine. She was
accompanied back to South Africa by officers of the
Federal Police of
Brazil. The informant would have been paid R60 000.00 to collect
the cocaine from Brazil. The enterprise
ran for approximately five
years. Numerous drug mules were used to collect drugs from various
countries, including Argentina, Brazil
and Holland. The Appellant
appeared untouchable and SAPS dockets incriminating him would
disappear.
[9]
The aggravating circumstances were therefore extensive.
[10]
Supplementary Heads of Argument were filed by the Appellant on 10
October 2018 which was not pursued before us. Counsel appearing
for
the Appellant, Adv P Springveldt, during the hearing, also submitted
Supplementary Heads of Argument in support of the Appeal.
There was
no objection from counsel for the State and these Heads of Argument
were received. In the Supplementary Heads of Argument,
it was
contended that the Appeal against sentence should succeed and that
all the counts against the Appellant should be taken
together for the
purposes of sentencing, and that a sentence of ten to fifteen years
effective imprisonment should be imposed.
[11]
Counsel for the Appellant, in essence, contended that the cumulative
effect of the sentence of the Trial Court was unjust and
that justice
would have been served better if all the sentences were to have been
ordered to run concurrently. The pivotal submission
of the Appellant
for this argument is that there was a close link between the offences
and that the concurrent running of sentences
will be appropriate.
[12]
Sections 280(1)
and (2) of the
Criminal Procedure Act 51 of 1977
,
provides as follows:
“
280 Cumulative or
concurrent sentences
(1)
When a person is at any
trial convicted of two or more offences or when a person under
sentence or undergoing sentence is convicted
of another offence, the
court may sentence him to such several punishments for such offences
or, as the case may be, to the punishment
for such other offence, as
the court is competent to impose.
(2)
Such punishments, when
consisting of imprisonment, shall commence the one after the
expiration, setting aside or remission of the
other, in such order as
the court may direct, unless the court directs that such sentences of
imprisonment shall run concurrently.
”
[13]
Normally, multiple sentences of imprisonment are served one after the
other unless a Court directs otherwise.
Section
39(2)(a) of the Correctional Service Act 111 of 1998 and S v Coetzer
[2006] ZASCA 42
;
2006 (2) SACR 63
(SCA)
[14]
There is a very sound reason for Courts to consider the cumulative
effect. Several sentences imposed in one Trial, should not
be too
severe in the light of aggregate sentences. On the other hand, the
cumulative effect of sentences should not under-estimate
the
seriousness of offences.
S
v Cele
1991 (2) SACR 246
(A) at 248-I to 249-A and S v Maraisana
1992(2) SACR 507 (A) at 511-G
[15]
In the current instance, the Trial Court deemed it fit to order that
the two sentences in Counts 2 and 3 of twenty years imprisonment

each, run concurrently. We cannot fault the Trial Court for this as
it is obvious that the events in Count 3, being the dealing
in drugs
which were imported from Brazil, were closely connected with the
conviction on racketeering for Count 2. Moreover, the
State is not
appealing the Order of the Trial Court that these two sentences run
concurrently.
[16]
It is the second part of the Order of the Trial Court that the
sentences of ten years imprisonment each for Counts 4 to 7,
(i.e.
forty years imprisonment in total), run concurrently, that is of
concern.
[17]
Counsel for the State, Adv Badenhorst, contends that a sentence of
thirty years direct imprisonment, is “
in fact a very lenient
sentence
” and that the appeal against the sentence, should
be dismissed. On the principle of parity, Counsel submitted that in
S
v Keyser
2012 (2) SACR 437
(SCA)
, the accused who was a drug mule
and who brought 6.5 kilograms of cocaine into South Africa, was
sentenced to twenty years direct
imprisonment, which was confirmed on
appeal. Whilst the drug mule was only the transporter, in the current
instance, the Appellant
was the “
kingpin
”, Counsel
submitted.
[18]
It is common cause that the Appellant was arrested on 26 November
2009 and that he was sentenced on 12 December 2014. He was
therefore
incarcerated, awaiting trial, for more than five years. Time spent in
prison before sentencing, must be taken into account.
Counsel for the
State conceded that the trial followed a smooth and continuous
process until the Appellant was sentenced and that
neither the State
nor the Appellant could be held responsible for the delays during the
postponements of the matter.
S
v Gqamana
2001 (2) SACR 28
(C) at 37-G to 37-H and S v Vilakazi
2009
(1) SACR 552
(SCA) par [60] and Director of Public Prosecutions,
North Gauteng: Pretoria v Gcwala and Others
2014 (2) SACR 337
(SCA)
para [15] to [20]
[19]
There is a further common cause fact that the Appellant was a
first-time offender. That being common cause, the Appellant and
the
State disagree as to whether this should have been treated by the
Trial Court as a mitigating fact.
[20]
The Appellant contends that this should have been treated as a
mitigating fact. Counsel for the State submits that based on
the
evidence of the drug expert, J Combrink, the fact that the Appellant
does not have previous convictions, should not be seen
as a
mitigating factor, as it simply means that he had not been arrested
for his wrongdoing by the time that the arrest took place
in November
2009.
[21]
The Trial Court seemed to have been persuaded by this submission. He
reasoned, at 2025 (line 10 and further), as follows during
the
sentencing of the Appellant:
“
I agree with the submission
made by the Prosecution based on the evidence of Combrinck that in
this matter, being a first offender
should not attract any leniency
from the Court looking at how cunning and premeditated the accused
operated in the execution of
his illegal activities as a whole.
In our Law generally if one is a
first time offender the Court is expected to be lenient. The case of
S v Gulauti is clear in this
regard that first offenders were
[sic]
possible must be treated
much more leniently than a second and / or third offender.
But for the purposes of this case
the question is, is it appropriate to treat first offender like the
accused with such leniency
given the nature of the offence before
this Court that drug kingpins or smugglers are untouchable and they
do not often touch drugs
with their own hands, chances of detecting
them are very slim. Therefore the fact that they are first offenders
should not attract
any leniency on the part of the Court.
”
[22]
It appears to us that the Trial Court incorrectly reasoned that
because drug kingpins or smugglers are cunning and pre-meditated
and
not easily detected, that when they are convicted they are not
entitled to rely on the mitigating fact of being first-time

offenders. The last sentence of the Magistrate’s reasoning
quoted above, indicates that he held the view that first-time

offenders of this category should not attract any leniency as he put
it.
[23]
It is trite that being a first-time offender is considered a
mitigating factor.
S
v Van Wyk
1997 (1) SACR 345
(T) at 366-G to 366-H and S v Voges
1975
(3) SA 888
A at 890-E and S v Abt
1975 (3) SA 214
(A) at 219-H
[24]
Being a first-time offender, does not mean that such a fact should
override all the other principles to be considered during
the
sentencing process. First-time offenders are therefore not entitled
to non-custodial sentences, merely because they are first-time

offenders.
S
v Victor
1970 (1) SA 427
(A) at 429-C to 429-D
[25]
Is there a legal principle that when criminals are not easily
detected, that they should be devoid from raising a mitigating
fact
of being first-time offenders, when they are ultimately prosecuted?
[26]
In
S v Van Niekerk
1993 (1) SACR 482
, the court referred to an
earlier Judgment which was also reported as
S v Van Niekerk
1981
(3) SA 239
(O) at 242-G to 242-H and particularly at 243-A
. In
the latter Van Niekerk Judgment, Erasmus J appears to have drawn a
distinction between two categories of “
first-time
offenders
”. Those that have never been convicted in a court
of law and those that have not been convicted, but clearly have
committed
crime, and has not been sentenced by a court of law.
[27]
It does not appear to us that the Van Niekerk Judgment has received
any approval on this distinguishing feature of first-time
offenders
from any other Courts. In
S v Petkar
1988 (3) SA 571
(A) at 575
,
the Appellate Division considered the Judgment of Erasmus J in the
Van Niekerk Judgment, albeit on a different principle as to
whether
there is an obligation on a trial court, as a general principle, to
investigate circumstances of crimes not charged in
the indictment.
The Petkar Judgment is accordingly no authority of the Appellate
Division endorsing the distinction drawn between
the two categories
of “
first-time offenders
”.
[28]
We are of the view, that this distinction is artificial and cannot be
supported. There is no halfway-house for, or two categories
of,
first-time offenders. A person who has not been sentenced by a court
of law for criminal conduct will always be a first-time
offender. The
value of being a first-time offender should be considered by a trial
court against the other factors under consideration
during the
sentencing process. To describe one category of a first-time offender
as a “
onverbeterlike skurk
” (an insurmountable
villain) and the other as a true “
first-time offender
”,
is in our view not helpful. First-time offenders should be so
recognised from the factual question as to whether they have
ever
been sentenced by a court of law and if not, they are entitled to the
mitigating fact of a “
first-time offender
”.
[29]
High Courts have wide powers in the consideration of an appeal on
sentencing. The general principles which a court should consider
in
this process have been laid down long ago.
R
v Dhlumayo
1948 (2) SA 677
(A)
[30]
We can only interfere with the sentence of the Trial Court if the
misdirection is of such a nature, degree or seriousness that

directly, or by inference, it can be said that the court did not
exercise its discretion at all, or exercised it improperly.
Sentencing
is pre-eminently a matter within the discretion of the
Trial Court and that court has a wide discretion regarding the facts
it
takes into account and the relative value to be attached to them.
S
v Giannoulis
1975 (4) SA 867
(A) and S v Rabie
1975 (4) SA 855
(A)
and S v Fazzie & Others
1964 (4) SA 673
(A) at 684 A-B
[31]
The Appellant was sentenced to a long period of imprisonment which
the Trial Court arrived at by ordering that the sentences
run
concurrently.
Section 51(2)(a)
of the
Criminal Law Amendment Act 105
of 1997
, provides that there is a discretionary minimum sentence of
fifteen years imprisonment, for a first-time offender for drug
dealing,
where the value is more than R50 000.00. The Trial
Court imposed a sentence of twenty years imprisonment for Count 3
which
demonstrates how serious the Trial Court viewed the offence.
[32]
It is clear that the Trial Court reasoned that long-term imprisonment
was the only appropriate sentence so as to remove the
Appellant from
the community.
[33]
An effective imprisonment term of thirty years, must be treated as
long-term imprisonment. Historically, twenty-five years
of
imprisonment has always been recognised as only to be imposed in
exceptional circumstances.
S
v Sibiya
1973 (2) SA 51
(A)
[34]
In our view, the Trial Court misdirected itself materially in the
following regards:
[34.1] we do not believe that a legal
principle exists that certain categories of wrongdoers, i.e.
“
kingpins
” or “
smugglers
” or
persons who are not easily detectable, should as a matter of legal
principle, be devoid from being treated as first-time
offenders when
they are convicted for the first time;
[34.2] all first-time offenders are
entitled to the mitigating fact that they are first-time offenders,
irrelevant of their styling
as to where they fit into the category of
wrongdoers. What weight should be given to the fact that they are
first-time offenders
in the bigger scheme of the sentencing process,
lies in the discretion of the Trial Court when ultimately,
consideration is given
to all the criteria considered by the Trial
Court in imposing a balanced sentence;
[34.3] Counts 4 to 7 attracted an
equal sentence from the Trial Court of ten years imprisonment each,
irrelevant of the quantity
or the value of the drugs. In two of the
counts, less than one gram of cocaine was dealt with by the
Appellant. Counsel for the
State conceded that there was no
particular reason as to why ten years imprisonment was imposed by the
Trial Court for each of
these counts. In our view, they should have
been sentenced individually, based on the quantity or value. Ten
years imprisonment
for Counts 4 and 6 in particular, is too heavy in
our view.
[35]
Whilst the Trial Court misdirected itself as to the first-time
offender status of the Appellant, we do not find that the sentences

imposed for Counts 2 and 3 of twenty years imprisonment each, were
disproportionate. Racketeering and drug trafficking are both
very
serious offences. The
Prevention of Organised Crime Act 121 of 1998
provides for life imprisonment upon conviction for racketeering.
Racketeering is indeed a complex crime and as the facts in the

current instance show, it involved group activity in which the
Appellant played a major role in the running of the enterprise.
The
facts indicate that the enterprise operation was planned, ongoing and
continuous and that the enterprise stretched over a period
of
approximately five years until the Appellant was arrested. The State
adduced evidence in terms of
Section 2(2)
of the
Prevention of
Organised Crime Act 121 of 1998
so that the Trial Court could hear
evidence with regard to hear-say and similar facts on how the
enterprise was conducted by the
Appellant. The Trial Court correctly
imposed a heavy sentence on the Appellant upon his conviction for
racketeering. Heavy sentences
for racketeering can mostly be expected
from courts of law in view thereof that the criminal conduct of
participants originate
from their organised involvement in the
enterprise which is regarded as more reprehensible and damaging to a
society than a person
who yields to temptation to commit crime.
S
v Naryan
1998 (2) SACR 345
(W) 357 H-I
[36]
It is obvious from the sentence that the Trial Court imposed for
Count 2 was measured down to twenty years imprisonment, in
view of
the mitigating facts which the Trial Court considered. There is no
appeal by the State that the sentence so imposed by
the Trial Court
was too lenient. Moreover, the State did not promote in the Trial
Court that the matter should be transferred to
the High Court for
sentencing, in which it could have pursued life imprisonment.
[37]
The State has therefore accepted that the sentence of twenty years
imprisonment for racketeering is appropriate. We agree with
that. The
Appellant contended for an effective, cumulative sentence of between
ten to fifteen years. That would have been totally
inappropriate,
given the facts of the matter and the seriousness of the convictions.
Long-term imprisonment was indeed warranted
in this matter.
[38]
It is the cumulative effect of the two blocks of sentences that
requires us to intervene only in the Order of the Trial Court
as to
the concurrency of the sentences to be served.
[39]
As to Count 3, the value of the cocaine dealt with in the Count,
exceeded R500 000.00. To that end, the minimum sentence
of
fifteen years provided for in terms of the
Drugs and Drug Trafficking
Act 140 of 1992
, applied. We cannot fault the Trial Court for the
sentence of twenty years imprisonment handed down for Count 3.
[40]
The only remaining issue is whether, a sentence of ten years
imprisonment for each of Counts 4 to 7, was too heavy and
generalised.
In our view, a sentence of two years imprisonment for
each of Counts 4 to 7, should have been imposed, totalling eight
years imprisonment.
Counts 4 to 7 all took place within 2009. These
counts originated from the enterprise being infiltrated by the Police
Reservist.
The counts were closely linked with the enterprise.
[41]
Count 8, being the conviction on the charge of contravening the
Immigration Act 13 of 2002
, goes back to 2002. It is not closely
linked to the racketeering and drug trafficking convictions and it
should be served separately.
Persons who immigrate to South Africa
must comply with immigration laws and upon expiry of their temporary
permits, they must either
return back to their countries of origin,
or they must regularise their attendance in South Africa. There is no
reason why the
sentence for Count 8 should run concurrently with any
one of the other sentences.
[42]
Upon taking all the facts into account, the interests of society, the
personal circumstances of the Appellant, the seriousness
of the
offences and the cumulative effect of the sentences imposed by the
Trial Court, the following order is made:
[43]
Order:
[43.1] The sentence of twenty years
imprisonment for Count 2 for a contravention of
Section 2(1)(e)
of
the
Prevention of Organised Crime Act 121
of 1998, is confirmed.
[43.2] The sentence of twenty years
imprisonment for Count 3 for a contravention of
Section 5(b)
of the
Drugs and Drug Trafficking Act 140 of 1992
, is confirmed.
[43.3] The sentence of ten years
imprisonment for Counts 4 to 7 for each contravention of
Section 5(b)
of the
Drugs and Drug Trafficking Act 140 of 1992
, is set aside and
in each instance, replaced with a sentence of two years imprisonment
on each count.
[43.4] The sentence of twelve months
imprisonment for Count 8 for a contravention of
Section 49(6)
of the
Immigration Act 13 of 2002
, is confirmed.
[43.5] It is ordered in terms of
Section 280(2)
of the
Criminal Procedure Act 51 of 1977
, that the
sentences for Counts 2 and 3 run concurrently and that half of the
sentence on Counts 4 to 7, in other words four years,
also run
concurrently with the sentences of Counts 2 and 3.
[43.6] The effective imprisonment for
the Appellant is therefore twenty-five years imprisonment.
[43.7] The sentence is antedated to 12
December 2014.
AP
BEZUIDENHOUT
ACTING
JUDGE OF THE HIGH COURT
I
agree
L.
WINDELL
JUDGE
OF THE HIGH COURT
For
the Appellant / Accused:
Zehir
Omar Attorneys
c/o
Jacques Swanepoel Attorneys
94
Pritchard Street
Johannesburg
Counsel:
Adv P Springveldt
For
the State
:
Office
of the Director of Public Prosecutions
Gauteng
Local Division, Johannesburg
Counsel:
Adv JA Badenhorst
Date
of Hearing: 29 October 2018
Judgment
Delivered: 2 November 2018