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2015
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[2015] ZANCHC 26
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Radebe v S (CA&R31/2015) [2015] ZANCHC 26 (4 September 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division, Kimberley)
Saakno
/ Case number:
CA
& R 31/2015
Datum
verhoor/Date heard:
31/08/2015
Datum
gelewer/Date delivered:
04/09/2015
In
the matter between:
SIFISO
RADEBE
Appellant
and
THE
STATE
Respondent
Coram:
Erasmus, AJ et Mamosebo, AJ
JUDGMENT
ON APPEAL
ERASMUS,
AJ
[1]
This is an appeal against the sentence of 3 years imprisonment
imposed by the Magistrate Galeshewe in case number 1528/2014.
The appellant was convicted of a contravention of section 5(b), read
with certain other provisions of the Drugs and Drug Traf
ficking
Act, No. 140 of 1992 (‘the Act’), to wit dealing in 3,9
kilograms of dagga. The appellant was convicted
and sentenced
on 12 March 2015. He was released on bail pending the appeal against
his sentence on 23 April 2015 and thus served
almost six weeks of the
sentence imposed.
[2]
It is the case of the appellant that the learned Magistrate
misdirected himself in over-emphasizing the interests of the
community
and the previous conviction of the appellant and not
attaching sufficient weight to the favourable personal circumstances
of the
appellant. It is further submitted that the learned
magistrate imposed a sentence that is unduly harsh in that it can be
described as disturbingly inappropriate and induces a sense of
shock.
[3]
The appellant and his co-accused pleaded not guilty and both were
convicted. The co-accused of the appellant was a first
offender
and was sentenced to two years imprisonment which was wholly
suspended for 5 years on certain conditions, plus a fine
of R6,000.00
or 12 months imprisonment.
[4]
Mr. Nel, on behalf of the appellant, referred to several unreported
cases of similar nature and submitted that the sentence
imposed on
the appellant differs materially from the sentences imposed in those
cases. He submitted that the sentence imposed
on the appellant
is disturbingly inappropriate and induces a sense of shock.
[5]
Mr. Hanise too, on behalf of the State, conceded that the sentence
imposed by the trial court induces a sense of shock.
I fully
agree with this concession made on behalf of the State.
[6]
The correct approach which this court must follow when deciding if we
are to interfere with the sentence imposed by the court
a
qou
was
set out by
Rumpff
JA in
S
v Anderson
[1]
:
'A
court of appeal will not alter a determination arrived at by the
exercise of a discretionary power merely because it would have
exercised that discretion differently. There must be more than that.
The court of appeal, after careful consideration of all the
relevant
circumstances as to the nature of the offence committed and the
person of the accused, will determine what it thinks the
proper
sentence ought to be, and if the difference between that sentence and
the sentence actually imposed is so great that the
inference can be
made that the trial court acted unreasonably, and therefore
improperly, the court of appeal will alter the sentence.
If there is
not that degree of difference the sentence will not be interfered
with.'
[7]
Although the facts of each and every case differ, it is often useful
to look at other similar cases when deciding what an appropriate
sentence would be in a matter.
7.1
In the unreported matter of
S
v NKOSI
[2]
,
the appellant was sentenced to 4 years imprisonment for dealing in
20kg of dagga. On appeal the sentence was set aside and replaced
with
a fine of R10,000.00 or 4 years imprisonment. In this current
matter the accused had a previous conviction for a similar
offence as
has the appellant in this matter.
7.2
In the matter of
S
v
HLAHELE
[3]
(523/2008), the appellant was convicted of dealing in 61kg of dagga
and was sentenced to 36 months imprisonment of which eight
months
were suspended. He was a first offender and pleaded guilty. On appeal
his sentence was set aside and replaced with a fine
of R3,000.00 or
12 months imprisonment plus a further suspended sentence of 12 months
imprisonment wholly suspended on certain
conditions.
7.3
In the matter of
GAVIN
FRANS & ANOTHER v S
[4]
an
unreported case of this Division, the appellants were convicted of
dealing in 61 kg of dagga. After conviction, having
pleaded not
guilty, they were sentenced to 5 years imprisonment of which 2 years
were suspended. On appeal the Court expressed
the opinion that
a fine coupled with a suspended sentence of imprisonment would have
been suitable, but as the appellants had already
served a part of
their sentences, the sentence was changed to one of 3 years
imprisonment of which 20 months were suspended for
5 years on certain
conditions.
[8]
It is trite law that when imposing sentence the court has to take
into account the personal circumstances of the appellant,
the
seriousness of the offence and the interest of the community.
From the record of proceedings it appears that the trial
court placed
a lot of emphasis on the interest of the community and the
seriousness of the offence. It goes without saying
that the
offence the appellant was convicted of is very serious and that the
interest of the community takes high priority in offences
of this
nature, especially when a large amount of dagga is found as in this
case.
[5]
[9]
These factors though should not be over-emphasized at the cost of the
personal circumstances of the appellant. When the
personal
circumstances of the appellant and his co-accused are compared, it
appears that the only material difference is the fact
that the
appellant has a previous conviction for possession of dagga. He
was sentenced to a fine of R1,000.00 or 14 months’
imprisonment, suspended for 5 years on certain conditions including
that he is not convicted of contravening section 5(b) of the
Act,
during the period of suspension. It should be kept in mind that
more than seven years have lapsed between his sentence
and the
commission of the offence which is currently on appeal before us.
[10]
Having considered the sentences in cases of similar nature and also
the sentence imposed on the co-accused of the appellant
and, without
derogating from the seriousness of the offence, I find no reason why
the appellant in this instance should have been
sentenced to direct
imprisonment. I would have imposed a sentence similar to that
of the appellant’s co-accused.
It should be kept in mind
that he was detained for almost 6 weeks after his conviction and
sentence before he was released on bail
pending his appeal. T
he
difference between the sentence this court would have imposed and the
sentence actually imposed is thus so great that the inference
can be
made that the trial court acted unreasonably.
[11] For the
reasons set out above the appeal must succeed and therefore I make
the following order:
1.
THE APPEAL SUCCEEDS.
2.
THE SENTENCE IMPOSED BY THE MAGISTRATE GALESHEWE UNDER CASE NUMBER
GAL1528/2014 IS SET ASIDE AND REPLACED WITH THE FOLLOWING:
“
2
YEARS IMPRISONMENT, WHOLLY SUSPENDED FOR A PERIOD OF 5 YEARS ON
CONDITION THAT THE ACCUSED IS NOT CONVICTED OF A CONTRAVENTION
OF
SECTION 5(b)
OF THE
DRUGS AND DRUG TRAFFICKING ACT 140 OF 1992
TO WIT
DEALING IN DAGGA, COMMITTED DURING THE PERIOD OF SUSPENSION PLUS A
FURTHER FINE OF R6,000.00 OR 3 YEARS IMPRISONMENT”
_________________
SL ERASMUS
ACTING
JUDGE
I concur.
_________________
MC MAMOSEBO
ACTING JUDGE
For
the Appellant:
Adv.
IJ Nel (oio André Potgieter & Partners)
For
the Respondent:
Adv.
SJ Hanise (obo the NPA)
[1]
1964
(3) SA 494 (A)
at
495G-H; See also
S
v L
1998
(1) SACR 463
(SCA)
468
f
-
h;
S
v
Romer
2011
(2) SACR 153
(SCA)
at
[22]-[23]
[2]
(A465/2011)
[2012] ZAGPPHC 326
[3]
(523/2008)
[2008] ZAFSHC 128
[4]
(CA&R201/2014)
ZANCHC
[5]
S
v Bartlette
(CA&R
92/07) [2008] ZANCHC 5