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[2012] ZAGPPHC 326
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Nkosi v S (A465/2011) [2012] ZAGPPHC 326 (30 November 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA (NORTH GAUTENG, PRETORIA)
Case
no:A465/2011
DATE:30/11/2012
In
the matter between:
THEMBA
NKOSI
....................................................
APPELLANT
and
THE
STATE
.............................................................
RESPONDENT
JUDGMENT
BAQWA
J,
[1]
The Appellant herein pleaded guilty and handed in a section 112(2)
statement confirming his guilt. He admitted all the elements
of the
crime.
[2]
The facts are briefly as follows: He was driving his motor vehicle, a
Ford Courier bakkie on 22 July 2011 from Swaziland to
Johannesburg.
[3]
He was stopped and searched at the Mahamba border gate, Piet Retief
and 20kg of dagga was found at the back of his vehicle.
He admitted
that the dagga was his and he was taking same to Johannesburg. He
admitted being aware of the unlawfulness of his actions.
The Court "a
quo" applied the statutory provisions relating to the quantity
of dagga and convicted him of dealing in
dagga.
[4]
He was sentenced to serve a term of four years imprisonment and his
motor vehicle was forfeited to the state.
[5]
The personal circumstances of the Appellant are as follows. He was 37
years old at the time of commission of the offence. He
is single and
stays with the mother of one of his children. He has four children
aged 15, 10, 7 and 3 years. The children are from
different mothers
who are unemployed except for one. The children are dependent on the
Appellant for support. The Appellant was
employed until the time of
his arrest.
[6]
The Appellant admitted a previous conviction of a similar nature to
the charge on which he was convicted having been convicted
of that
offence in 2000.
[7]
It has been submitted on Appellant's behalf that having stayed away
from crime for a period in excess of ten years, he ought
to have been
treated as a first offender.
[8]
As against this submission, the Respondent submits with regard to the
earlier conviction that the Appellant was sentenced to
two years
imprisonment as well as a further suspended sentence and that six
years after his suspended sentence expired, he was
again convicted.
[9]
These are all circumstances which the Court “a quo” seems
to have taken into account whilst not forgetting the relevant
provisions of the law in imposing the sentence that is now being
appealed against.
[10]
The prescribed sentence in terms of section 17 of the Drugs and
Trafficking Act 40 of 1992 is imprisonment not exceeding 25
years or
imprisonment coupled with a fine. The magistrate applied the
provisions of section 25 of Act 140 of 1992 and ordered the
motor
vehicle forfeit to the State. It is submitted by the Appellant and I
accept that the forfeiture of the motor vehicle is part
of the
punishment.
[11]
The question to decide is whether bearing in mind the facts of the
offence, the circumstances of the Appellant and the interests
of
society, the sentence imposed by the Magistrate is strikingly
inappropriate.
[12]
It is trite law that in every appeal against sentence, the court
hearing the appeal should be guided by the principle that
punishment
is pre-eminently a matter for the discretion of the trial court and
should be careful not to erode such discretion hence
the further
principle that the sentence should be altered in exceptional
circumstances.
[13]
Whilst the latter statement is correct, the court has to take into
account the triad: the crime, the criminal and the society.
The
Appellant who has young dependants had stayed clean for a period of
just over ten years. This fact cannot be ignored as a mitigating
factor. The fact is, the most severe sentence is not necessarily the
most appropriate. Most prisoners have to return to society
one day,
and the longer the sentence the more likely society is to be troubled
by that person.
See:
SvS 1997(3) SA 830 G-H
S
v Skenjana 1985(3) SA 51 at par 64.
[14]
Whilst not minimising the seriousness of the crime, and taking in
account all the circumstances of this case, I find it appropriate
to
temper sentence with a measure of mercy by adding the alternative of
a fine to the sentence imposed by the Court “a quo".
[15]
In the result I propose that the following order is made:
15.1
The conviction of the Appellant and the forfeiture of the Appellant’s
vehicle to the State is confirmed.
15.2The
appeal against sentence is upheld.
15.3
The sentence of four years imprisonment is set aside and substituted
with the following.
15.4
The Appellant is sentenced to pay a fine of Ten Thousand Rands (R10,
000.00) failing which to undergo a term of four (4) years
imprisonment.
30
November 2012
It
is so ordered:
S.
A. M Baqwa
(JUDGE
OF TIHE HIGH COURT)
I
agree:
F. DU TOIT
(ACTING
JUDGE OF THE COURT)