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[2015] ZAGPPHC 276
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Oha and Another v S (A170/14) [2015] ZAGPPHC 276 (8 May 2015)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
CASE NUMBER:
A170/14
DATE: 8 MAY 2015
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
UCHECHUKU
OHA
..................................................................................................................
First
Appellant
SAMKELISWE
KHANYILE
...............................................................................................
Second
Appellant
And
THE
STATE
.....................................................................................................................................
Respondent
JUDGMENT
STRAUSS, AJ:
1.
The first appellant was convicted in the Regional Court, Benoni on
two counts of contravening Section 5 (b) of Act 140/1992 (dealing
in
drugs) and on a single count of contravening Section 49 (1) of the
Immigration Act 13/2002. He was sentenced to a period of
25 years
imprisonment on each count of contravention of the Drug Trafficking
Act and 3 months imprisonment on contravention of
the Immigration
Act. The court
a
quo
ordered
that the sentence on the two counts of contravention of the Drug
Trafficking Act, run concurrently.
2. The second
appellant was also convicted on two counts of contravening Section 5
(b) of Act 140/1992 (dealing in drugs) and sentenced
to a period of
25 year imprisonment on each count of contravention of the Drug
Trafficking Act, and the order was that the sentence
was also to run
concurrently.
3. Leave to appeal
their sentence only was granted by way of petition of this court.
4.
The test applicable to appeal against sentence was set out in
S
v Salzwedel
1999 (2) SACR 586
(SCA)
that:
“
An
appeal court is entitled to interfere with a sentence imposed by a
trial court in a case where the sentence is disturbingly
inappropriate or totally out of proportion to the gravity or
magnitude of the offence or sufficiently desparate or vitiated by
misdirection of a nature which shows that the trial court did not
exercise its discretion reasonably."
The
general approach to be followed by a court of appeal when considering
an appeal was as stated in: S
v
Peters
1987 (3) SA 717(A).
”
“
Met
betrekking tot appëlle teen vonnis in die algemeen is daar
herhaaidelik in talle uitsprake van hierdie hof beklemtoon dat
vonnisoplegging berus by die diskresie van die Verhoorregter en juis
omdat dit so is, kan ek en sal hierdie hof nie ingryp en die
vonnis
van 'n Verhoorregter verander nie tensy dit blyk dat hy die diskresie
wat aan horn toevertrou is nie op ’n behoorlike
of redelike
wyse uitgeoefen het nie. Om dit andersom te stel, daar is ruimte vir
hierdie hof om ’n Verhoorregter se vonnis
te verander aileenlik
as dit blyk dat hy
sy
diskresie op ’n
onbehoorlike en onredelike wyse uitgeoefen het. Dit is die
grondbeginsel wat alle appêlle teen vonnis
beheers.
5. The background
facts of the convictions were that the two appellants had control
over two premises, one a self-storage facility
in Benoni, and the
other a house in Germiston. During March and June 2010, undetermined
amounts of illegal substances were found
in these premises. It is
clear from the evidence and photos handed in as exhibits that these
substances were only stored in the
storage room in Benoni and
evidence of past manufacturing of illegal depending drugs was found
in the house in Germiston. The substances
found in the storage
facilities were all dangerous dependence producing substances as
listed in Part 1 and or Part 2 of Schedule
2 of Act 140/1992.
6.
No evidence was lead as to the quantity and or value of these
substances in the court a
quo,
and
also no evidence was lead concerning what actual ‘drug”
was made with these substances. The evidence however was
clear that
the house was used to manufacture drugs, although no actual finished
product was found.
7. The evidence was
also that the two appellants were not alone in the commission of the
offence and evidence was lead that a certain
Alex Sithole was also
involved, as well as another unknown Nigerian. It was not proven who
was the leader of the drug manufacturing
scheme or in what manner the
appellants were involved in the manufacturing. Neither the first nor
second appellants reside in the
home in Germiston where the
manufacturing took place, although the rental agreement of the
storage facility was in the name of
the second appellant.
8. Both the
appellants had legal representation throughout the trial, they gave
no plea explanation and also did not testify in
their defence when
the state had closed its case. The evidence for conviction was beyond
reasonable doubt and the conviction of
the appellants was justified.
9.
The appellants both obtained pre-sentencing reports in regards to
mitigation of their sentence and the court a
quo
was
also addressed by their legal representatives on their personal
circumstances. The mitigation address and facts contained in
the
pre-sentencing reports comprised approximately 40 pages and formed
part of the appeal record.
10. The reports also
contained correctional supervision reports qualifying both appellants
as suitable candidates for correction
supervision in terms of Section
276 (1) (i) and 276 (1) (h) of the Criminal Procedure Act 51 /1977.
11.
In stark contrast to this the sentence of the court
a
quo
of
the two appellants comprises two pages. The court a
quo
mentioned
on two occasions in handing down sentence that it was due to time
constraints that the court was not giving full reason
for the
sentence. The court a
quo
also
with notice to provide reason for conviction and sentence pending the
notice of appeal lodged by the appellant, chose not to
provide any
reason and referred to the record of proceeding for its findings.
12. It is settled
law that a court of appeal does not have an unfettered discretion to
interfere with the sentence imposed by a
trial court. It is only
where it is clear that the discretion of the trial court was not
exercised judicially or reasonably, that
a court of appeal will be
entitled to interfere.
13.
It is trite that whatever the gravity of the offence is, and the
interest of society, the most important factors in determining
sentence are the person, the character, and the circumstances of the
crime. Holmes JA in the often quoted statement from the case
of
S
v Sparks
1972 (3) SA 396
( A) at Page 410H
held
that:
“
punishment
should fit the the criminal as well as the crime, be fair to the
state and to the accused and be blended with a measure
of mercy”
14.
It follows that in determining the appropriate sentence the needs of
the convicted person and the interest of society should
be balanced
with care and understanding. In order to achieve these ideals the
sentencing court should have sufficient and meaningful
pre-sentencing
information in order to come up with a suitable punishment. The court
a
quo
in
the matter in causa had the pre-sentence reports but made no mention
of the personal circumstances contained therein, save to
mention that
appellants were still both young, and had minor children and were
self-employed.
15.
The court a
quo
also
mentioned that the sentence imposed needs to be the “
kind
of sentence that will inspire a fear on those who are engaged in
these kind of activities, and would also deter the appellants
and any
would be offenders to commit similar offences”.
16.As
set out by Corbett, JA in the case of
S
v Rabie
1975
(4)
SA
855
(AD) wherein it was stated: “
that
a judicial officer should not approach a punishment in the spirit of
anger because being human that will make it difficult
for him to
achieve the delicate balance between a crime, the criminal and the
interests of society, which is his task and the object
of the
punishment demanded of him”.
‘‘
It
is of paramount importance to have an offender adequately profiled
before sentence is imposed. Unless this is seen to have been
done, it
cannot be said that the punishment fits an offender”
17.
The sweeping statements made by the court
a
quo
in
the sentence were unhelpful on appeal. It was not enough to simply
comment that the trial court had regards to the “triad
in Zinn”
of sentence and had taken note of the pre-sentencing reports. It is
of utmost importance that all the factors relevant
to the appellant’s
personal profile be specified by the sentencing court itself in the
sentence component of the trial court.
This is particularly so in a
case where the crime committed will attract the severe form of
punishment, in the matter in causa
being the maximum sentence of 25
years prison sentence on conviction.
18.
As stated in
Tankise Mokoena v The State in
Appeal 323/2010 Free State High Court Bloemfontein, 9 February 2012,
RAMPAIJ
:
“
The
trial court fleetingly glossed over the appellant’s mitigation
factors. Where such mitigation factors are not so specifically
mentioned and meaningfully assessed, considered and properly weighed
up, a reasonable perception or doubt is thereby created that
the
offender was not properly individualised before he
was
sentenced”
“
It
has to be mentioned that legal argument is not supposed to form part
of the appeal record see
S v Ramavhale
1996 (1) SACR
639
(A)
it is imperative
therefore that the sentence segment of the proceeding should be so
independently crafted that the mitigation factors
and indeed
aggravating factors can be readily ascertained ex facie the sentence
segment itself without any reference to legal argument.
”
19.
The court
a quo
also
had before it detailed pre-sentencing reports setting out the
specific method of correctional supervision and that the appellants
could be a likely candidates. I cannot however find that correctional
supervision can be an alternative sentence for the first
appellant in
light of the fact that his status is that of an illegal immigrant in
South Africa, and he might face deportation after
his prison sentence
is served.
20. It was argued by
counsel in the court a quo and also by counsel appearing in the
appeal that on a comparative assessment of
other sentences imposed
for the commission of similar offences, the sentence was disturbingly
inappropriate.
21.
Indeed, if I have regard to some comparative sentences 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.
22. It is evident
that there was a shocking disparity between these sentences and the
sentence of 25 years imposed on the appellants.
The 25 year is the
maximum prison sentence for a conviction on a charge of contravention
of Section 5 (b) of Act 140/1992 (dealing
in drugs).
23. 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.
24. In sentencing
the appellants the following mitigation factors would traditionally
have been taken into account:
-They were married
by common law and had been in a relationship for 7 years.
-The appellants had
two minor children, aged four and three both these minor children
would lose their primary care giver the second
appellant, as well as
the breadwinners being the first and second appellants, and would be
left destitute if they could not be
cared for sufficiently by someone
else.
- The evidence was
that the sister of the second appellant was caring for the children
but she was struggling financially to care
for them, she stayed in
Natal, had children of her own and had not informed the children of
their mother’s incarceration.
-The involvement and
which roll each played in the committal of the offence was not before
court.
-They were both
first offenders.
-The first appellant
was 33 years old on date of sentence and the second appellant was 30
years old at the date of sentence,
-The second
appellant has another child from a previous relationship who was 8
years old but stayed with the biologic father, who
had been caring
for the child.
-The first appellant
is an illegal immigrant from Nigeria, and has no legal status in
South Africa.
-Before the
conviction the appellants managed a boutique and could after their
release start a business in clothing and they still
had stock left to
sell.
-The first appellant
had been awaiting trial for a period of two years and six months
before he was sentenced.
-The second
appellant had spent three months in prison awaiting sentence.
-No evidence was
adduced that either of the appellants had in actual fact sold any
illegal substance, they had been involved in
the manufacturing
thereof.
-The quantity of the
illegal substances found were not known to the trial court, nor the
reasonable market value of the illegal
substances confiscated by the
police.
-There was evidence
that the first appellant throughout his incarceration was a model
inmate and was able to start working in prison
even though awaiting
trial prisoners are not granted this opportunity lightly, further
that he had joined a religious service and
had completed a life skill
course in prison.
-Both appellants had
grade 12 qualifications and were through their life gainfully
employed, the second appellant in terms of the
correctional
supervision report could take up lodging with her cousin who would
initially support her an the minor children until
she could start her
own business.
-The first appellant
was born in poverty and came from an unstable and impoverished
background, he had been in South Africa since
2003.
-The
state applied for forfeiture of two motor vehicles belonging to the
appellants in terms of Section 25 of Act 140/1992 as the
vehicles
were impounded in the arrest of the appellants both these vehicle
were registered in the name of the second appellant
.The forfeiture
was granted by the court
a
quo.
25.
In sentencing the appellants the court a
quo
took
into account the following aggravating circumstances.
-The seriousness of
the offence and that the offence was prevalent in the court
jurisdiction, and that the appellants did not testify
as to the
circumstances of committal of the offence and that they therein
showed no remorse.
26.
As stated in
Tankise Mokoena v The State in
Appeal 323/2010 Free State High Court Bloemfontein, 9 February 2012,
RAMPAI J :
“
The
trial court fleetingly glossed over the appellant’s mitigation
factors. Where such mitigation factors are not so specifically
mentioned and meaningfully assessed, considered and properly weighed
up, a reasonable perception or doubt is thereby created that
the
offender was not properly individualised before he was sentenced”
“
It
has to be mentioned that legal argument is not supposed to form part
of the appeal record see
S V Ramavhale
1996 (1) SACR
639
(A)
it is imperative
therefore that the sentence segment of the proceeding should be so
independently crafted that the mitigation factors
and indeed
aggravating factors can be readily ascertained ex facie the sentence
segment itself without any reference to legal argument.
”
27.
In regards to the fact that minor children will be affected by
imposing a sentence of incarceration on the primary care giver
and or
breadwinner of such children the principels to apply were set out in
S v M ( Centre for Child Law as Amicus Curiae)
[2007] ZACC 18
;
2007 (2) SACR 539
CC
where
Sachs J, held:
[33]”
Focused and
informed attention needs to be given to the interests of children at
appropriate moments in the sentencing process.
The objective is to
ensure that the sentencing court is in a position adequately to
balance all the varied interests involved,
including those of the
children placed at risk. This should become a standard preoccupation
of all sentencing courts. To the extent
that the current practice of
sentencing courts may fall short in this respect, proper regard for
constitutional requirements necessitates
a degree of change in
judicial mind-set.
Specific and
well-informed attention will always have to be given to ensuring that
the form of punishment imposed is the one that
is least damaging to
the interests of the children, given the legitimate range of choices
in the circumstances available to the
sentencing court. ”
[34]”
In this respect it
is important to be mindful that the issue is not whether parents
should be allowed to use their children as a
pretext for escaping the
otherwise just consequences of their own misconduct. This would be a
mischaracterisation of the interests
at stake. Indeed, one of the
purposes of section 28(1 )(b) is to ensure that parents serve as the
most immediate moral exemplars
for their offspring. Their
responsibility is not just to be with their children and look after
their daily needs. It is certainly
not simply to secure money to buy
the accoutrements of the consumer society, such as cell phones and
expensive shoes. It is to
show their children how to look problems in
the eye. It is to provide them with guidance on how to deal with
setbacks and make
difficult decisions. Children have a need and a
right to learn from their primary caregivers that individuals make
moral choices
for which they can be held accountable. ”
[35]
‘‘
Thus,
it is not the sentencing of the primary caregiver in and of itself
that threatens to violate the interests of the children.
It is the
imposition of the sentence without paying appropriate attention to
the need to have special regard for the children’s
interests
that threatens to do so. The purpose of emphasising the duty of the
sentencing court to acknowledge the interests of
the children, then,
is not to permit errant parents unreasonably to avoid appropriate
punishment. Rather, it is to protect the
innocent children as much as
is reasonably possible in the circumstances from avoidable harm”.
[36]
“
There is no
formula that can guarantee right results. However, the guidelines
that follow would, I believe, promote uniformity of
principle,
consistency of treatment and individualisation of outcome.
(a) A sentencing
court should find out whether a convicted person is a primary
caregiver whenever there are indications that this
might be so.
(b) A probation
officer’s report is not needed to determine this in each case.
The convicted person can be asked for the information
and if the
presiding officer has reason to doubt the answer, he or she can ask
the convicted person to lead evidence to establish
the fact. The
prosecution should also contribute what information it can; its
normal adversarial posture should be relaxed when
the interests of
children are involved. The court should also ascertain the effect on
the children of a custodial sentence if such
a sentence is being
considered.
(c) If on the
Zinn triad approach the appropriate sentence is clearly custodial and
the convicted person is a primary caregiver,
the court must apply its
mind to whether it is necessary to take steps to ensure that the
children will be adequately cared for
while the caregiver is
incarcerated.
(d) If the
appropriate sentence is clearly non-custodial, the court must
determine the appropriate sentence, bearing in mind the
interests of
the children.
(e) Finally, if
there is a range of appropriate sentences on the Zinn approach, then
the court must use the paramountcy principle
concerning the interests
of the child as an important guide in deciding which sentence to
impose. “
[47]
There was
virtually nothing in the Regional Magistrate’s reasons for
sentence to show that she applied a properly informed
mind to the
duties flowing from section 28(2) read with section 28(1 )(b). It
appears from the argument advanced on behalf of the
State that the
Regional Magistrate was acting in a manner largely consistent with
current practice. If, however, paramountcy of
the children’s
interests is to be taken seriously, and this is present sentencing
practice, this practice needs to be reviewed
so as to bring it in
line with constitutional requirements.
28.
I find, that the court
a
quo
passed
sentence without giving sufficient independent and informed attention
as required by section 28(2) of the Constitution read
with section
28(1 )(b), to the impact on the children of sending both the
appellants to prison. In these circumstances the sentencing
court
misdirected itself by not paying sufficient attention to
constitutional requirements. This Court is therefore entitled to
reconsider the appropriateness of the sentence imposed by the court a
quo.
29.
The court a
quo
also
did not pay attention to the suggestion by the defence that instead
of ordering forfeiture of the motor vehicles to the state,
the
vehicles could be sold by the family of the appellants, to utilise
the proceeds to maintain the minor children of the appellants.
30.
The court a
quo
also
to my mind did not consider that the first appellant had already
spent two years and six months awaiting trial and the sentence
imposed reflects no such consideration.
I therefore make the
following order:
a) The appeal
against the sentence is upheld.
b)
The court
a quo’s
sentence
is amended as follows:
c) The first
appellant is sentenced to 12 (twelve) years imprisonment on each
count of contravening Section 5 (b) of Act 140/1992
(The Drug
Trafficking Act), and 3 (three) months imprisonment for contravention
of the Immigration Act, the sentence on the two
counts of
contravention of the Drug Trafficking Act will run concurrently, and
the sentence is antedated to 9 November 2012.
d) The second
appellant is sentenced to 10 (ten) years prison sentence in terms of
Section 276 (1) (i) of the Criminal Procedure
Act 51/1977, which
sentence is antedated to 9 November 2012, and a period of 3 (three)
years prison sentence is suspended for a
period of 5 (five) years, on
condition that the appellant is not found guilty of an offence in
contravention of Act 140/1992 (The
Drug Trafficking Act).
S STRAUSS
ACTING
JUDGE Of THE HIGH COURT
I
agree and it is so ordered
N M MAVUNDLA
JUDGE OF THE HIGH
COURT
DATE OF HEARING :
23 APRIL 2015
DATE OF JUDGMENT
: 08 MAY 2015
APPLICANT’S
ATT : PRETORIA JUSTICE CENTRE
APPLICANT’S
ADV : ADV V WYNGAARD
RESPONDENT’S
ATT :DIRECTOR OF PUBLIC PROSECUTIONS PTA
RESPONDENT’S
ADV : ADV J J KOTZE