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2012
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[2012] ZAFSHC 41
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Lwana v S (A 240/09) [2012] ZAFSHC 41 (15 March 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
CASE NO. A 240/09
In
the review between:
REFILOE
LWANA
….........................................................
APPELLANT
versus
THE
STATE
…...............................................................
RESPONDENT
_____________________________________________________
CORAM:
RAMPAI, J
et
NAIDOO, AJ
_____________________________________________________
JUDGMENT BY:
NAIDOO, AJ
HEARD ON:
12 MARCH
2012
DELIVERED ON:
15 MARCH 2012
_____________________________________________________
NAIDOO AJ
[1] The appellant and one
Siseko Katshaza were charged with dealing in 254,25 kilograms of
cannabis , commonly referred to as dagga.
They both pleaded guilty
and were convicted accordingly in the Wepener Magistrates Court on 26
September 2008. They were each sentenced
to pay a fine of R15 000.00
or in default of payment to undergo eight (8) years’
imprisonment. They were each sentenced to
a further five (5) years’
imprisonment which was wholly suspended for five (5) years, on
condition that they are not convicted
of contravening the provisions
of the
Drugs and Drug Trafficking Act 140 of 1992
, committed during
the period of suspension. With the leave of the trial court, only the
appellant now appeals against the sentence.
Mr Katshaza chose not to
pursue the appeal. The appellant was legally represented during the
trial in the Magistrates Court. Mr
K. Pretorius appears on behalf of
the appellant in this court and Ms A Bester on behalf of the State.
[2] The facts of this
matter, according to the statement in terms of
section 112
(2) of the
Criminal Procedure Act 51 of 1977
prepared by the appellant’s
attorney and confirmed by the appellant are, briefly, that the police
observed the appellant
loading a light delivery vehicle, commonly
referred to as a
bakkie,
with bags on a farm in Lesotho. They
observed him entering South Africa and stopped him as he entered this
country. The police
discovered, in the bakkie, ten bags containing
the dagga, which weighed approximately 254,25 kilograms. The
appellant was then
arrested. He admitted that he loaded the ten bags
of dagga onto the bakkie and that he entered South Africa illegally
with the
intention of selling the dagga. The prosecution accepted the
appellant’s plea.
[3] The grounds of appeal
are that
the appellant was the
sole breadwinner in his family,
he is a first offender,
he wishes to continue
with his studies, and
the sentence is too
harsh.
[4] An appeal court
should interfere with the sentence imposed by a trial court only if
the trial court has misdirected itself in
the imposition of sentence,
resulting in a sentence which is so inappropriate that it induces a
sense of shock. This principle
was succinctly stated in the case of
Gregory Lex Blank v The State 1995(1) SACR 62 (A),
where the
court said:
“
It
has repeatedly been emphasized by
this
court that the imposition of sentence is pre-eminently a matter
falling within the discretion of the trial judge and that a
court of
appeal can interfere only where such discretion was not properly
exercised. One of the ways in which it may be shown that
a trial
court's discretion was not properly exercised is by pointing to a
misdirection in the court's reasons for sentence. The
principle in
this regard is expressed as follows by Trollip JA in
S
v Pillay
1977 (4) SA 531
(A) at p 535 E-F:
‘
Now
the word 'misdirection' in the present context simply means an error
committed by the Court in determining or applying the facts
for
assessing the appropriate sentence. As the essential inquiry in an
appeal against sentence, however, is not whether the sentence
was
right or wrong, but whether the Court in imposing it exercised its
discretion properly and judicially, a mere misdirection
is not by
itself sufficient to entitle the Appeal Court to interfere with the
sentence; it must be of such a nature, degree, or
seriousness that it
shows, directly or inferentially, that the Court did not
exercise
its discretion at all or exercised it improperly or unreasonably.
Such a misdirection is usually and conveniently termed
one that
vitiates the Court's decision on sentence.’
"
[5] The personal
circumstances of the appellant were placed on record, namely that he
was 22 years old at the time of the commission
of the offence, and
that he is the sole breadwinner in his family, caring for his
parents, siblings, his 5 month old daughter and
girlfriend. It was
also placed on record that he intended to use the money he made from
selling the dagga to further his studies.
While the magistrate did
not specifically refer to the appellant’s personal
circumstances in sentencing him, I cannot find
that this, in itself,
is a misdirection or that it justifies the interference of this
court. The quantity of dagga found in the
appellant’s
possession was very large, with what must be a high street value. The
magistrate appears to have considered the
negative impact of drugs
and drug dealing when he referred to the economic consequences of
drug dealing and the effects of drugs
on people who use drugs. He was
correct in pointing out that this was a very serious offence, which
required strict sanction.
[6] Mr Pretorius, for the
appellant, submitted that the sentence was “shockingly
excessive” and that it induced a sense
of shock. Ms Bester
expressed the view that the sentence was shockingly inappropriate in
that it was too lenient, but due to the
length of time that had
elapsed since the sentence was passed, she would not pursue an
application for the increase in the sentence.
The sentence to be
imposed in a matter depends entirely on the circumstances of the
particular case, and although sentences imposed
in other similar
matters are useful guides to sentencing, that is all they are –
a guide. Ms Bester referred the court to
the matter of
S v
Lutshutu 2001(1) SACR 643 (EC)
, where a sentence of six (6)
years’ imprisonment was imposed on the accused who was
convicted of dealing in 145kg of dagga.
The quantity of dagga in the
present case exceeds this by over 100kg.
[7] In this matter, I
cannot find that the kind of misdirection, described in the Blank
case, referred to above, exists. I am of
the view that the sentence
in this matter is not one which resulted from a misdirection by the
trial court in the manner in which
it dealt with the facts or the
application of the law to the facts, and in the circumstances, my
view is that this court should
not interfere with the sentence
imposed by the trial court.
[8] I, accordingly,
propose that the following order be made:
The appeal against
sentence is dismissed;
The conviction stands.
.
_______________
NAIDOO, AJ
I agree, and it is so
ordered
________________
RAMPAI, J
Counsel for Appellant:
Mr. K Pretorius
Instructed by:
Bloemfontein Justice Centre
Counsel for the
Respondent:
Ms A Bester
Instructed by:
The
State