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[2012] ZAFSHC 223
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S v Modikoe (262/2012) [2012] ZAFSHC 223 (29 November 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 262/2012
In
the review between:-
THE
STATE
versus
MODIKOE
MODIKOE
_____________________________________________________
CORAM:
DAFFUE, J
et
THAMAGE, AJ
_____________________________________________________
JUDGMENT BY:
THAMAGE, AJ
_____________________________________________________
DELIVERED ON:
29 NOVEMBER 2012
_____________________________________________________
[1] This is a review
matter in terms of
section 302
of the
Criminal Procedure Act 51 of
1977
as amended.
[2] Accused was convicted
and sentenced in the Witsieshoek Magistrates’ Court held at
Tseseng on a charge of contravention
of
section 4(b)
reading with
sections 1, 13, 17 to 25 and 64 of the Drugs and Drug Trafficking Act
140 of 1992 (possession of drugs). He was sentenced
to R10 000,00
(ten thousand rand), in default, to undergo 10 (ten) months
imprisonment, half of the sentence is suspended for 5
(five) years on
condition that accused is not found guilty of possession of drugs
committed during the period of suspension.
[3] The matter was
forwarded to this court on automatic review. The reviewing judge
referred the matter back to the presiding magistrate
with the
following query:
“
1. Reasons
for sentence are requested, in particular;
whether a fine of ten thousand Rand
R10 000.00; or even the unsuspended amount of five thousand Rand
(R5000.00), was in view of
the accused’s financial position
realistic at all.
why was such a severe fine considered
appropriate?
2. The J4- form does not indicate
whether the fine was paid, the accused released or not. That must be
done.”
[4] The presiding
magistrate response was as follows:
“
1. The
record resubmitted to the Honourable Justice.
2. I wish to respond as follows to the
Honourable Judge’s queries:-
(a) Whether a fine of ten thousand
rand (R10 000.00) or even the unsuspended amount of five thousand
rand (R5000.00) was in view
of the accused’s financial position
realistic at all.
(b) Why such a severe fine was
considered appropriate?
I will deal with the Honourable
Judge’s queries all at once.
During the sentence I considered the
following circumstances aggravating in the circumstances of this
case:-
Accused is a Lesotho citizen.
He travelled from his own country and
got into South Africa with dagga.
He was convicted of possession of
dagga but on his own admission that he was sent from his own country
to deliver dagga in South
Africa and was to be remunerated. This
borders dealing in drugs. It can also be inferred that this was
organized crime and well
planned making it very serious.
He was found in possession of a large
quantity of dagga (16,3 Kg).
It is no exaggeration to state that
possession and use of dagga is prevalent in this district. It is
becoming a norm for Lesotho
citizens to gain access in South Africa
via villages falling in the court’s jurisdiction carrying
large amount of dagga.
I submit that in the circumstances I properly
exercised my discretion and reasoning on sentencing accused.
I also requested the Clerk of the
Court to enquire from prison if accused is still serving, accused
served until 07/05/2012 when
he was released and handed over to the
Home Affairs for deportation back to his country.
Furthermore it is unfortunate that I
am unable to conduct a proper research on the subject. We do not have
a library on the office
and have been without a computer for almost
two (2) years and as such unable to conduct an online research.
I thank the Honourable Judge.”
[5] The magistrate’s
response was submitted to me to review the proceedings as to whether
they were in accordance with justice.
I invited the Deputy Director
of Public Prosecutions to provide inputs and/or submissions. I am
deeply indebted to Advocate Ferreira
and Advocate Hiemstra for their
well thought and valuable submissions.
[6] Accused pleaded
guilty to the charge preferred against him. He was unrepresented and
the magistrate proceeded in terms of
section 112(1)(b)
of the
Criminal Procedure Act 1977
, Act 51 of 1977. He admitted all the
elements of the offence. He was thus convicted as charged.
[7] In mitigation of
sentence, he informed the court that he was sent to deliver dagga in
the Republic of South Africa. He resides
with his blind mother and
also takes care of his brother’s minor child. His father has
passed away. He is making a living
by doing odd jobs as cattle herd
boy and earns R300.00 per month. He is in a position to pay R100.00
fine.
[8] The primary purpose
of imposing a fine as an alternative measure of punishment is to
afford an accused person an opportunity
to stay out of prison, hence
the fine should be commensurate with an accused financial means.
[9] I find no problem
with the imprisonment term, having considered the reasons advanced by
the magistrate. There is however an
imbalance in the proportionality
between the fine and the imprisonment with due regard to accused
financial position and earning
capacity.
[10] In
S v DONGOLA
(1594/2004) [2004] ZAFSHC (2 December) the accused was convicted of
possession of 11 kilograms of dagga (section 4(b) of Act 140
of 1992)
and sentenced by the magistrate to R4 000.00 or 8 (eight) months
imprisonment and a further 12 (twelve) months imprisonment
wholly
suspended for a period of 5 (five) years. On review the court set
aside the sentence and substituted it with R1 200.00 or
4 (four)
months imprisonment.
[11] I am mindful of the
devaluation of money and taking also into consideration inflation. In
another decision of this division
namely
S v MOKHEEA
(1075/2004)
[2004] ZAFSHC 92
(7 October 2004) the accused was
sentenced to R3 000.00 or 6 (six) months imprisonment and a further
12 (twelve) months suspended
for a period of 5 (five) years for
contravention of section 4(b) of Act 140 of 1992. The quantity of
dagga was 7.6 kg. On review,
the sentence was set aside and replaced
with a sentence of R750.00 or 3 (three) months imprisonment.
[12] In respect of the
present case, the quantity of dagga is 16.3 kg which is more than
double the amount in
S v MOKHEEA
,
supra
. I am
mindful of the fact that sentencing is discretionary which discretion
should be exercised judicially and further that sentence
should be
individualised.
[13] The court should
thus consider the personal circumstances of the accused, the
seriousness of the offence, as well as the interest
of the society
when determining an appropriate sentence. See
S v RABIE
1975 (4) SA 855
(A). The financial position of the accused is one of
the factors that falls under personal circumstances of the accused.
[14] Imposition of a fine
is thus a way of telling the accused that he can avoid going to
prison by paying money in lieu of imprisonment.
The fine in this
regard is clearly beyond the financial means of the accused which
renders it tantamount to an imprisonment without
the option of the
fine.
[15] In the circumstances
I am of the view that the fine imposed by the magistrate is
inappropriate and a fair and reasonable amount
would be R3 000.00
half of which is suspended for a period of 5 (five) years. Like I
indicated before, I do not have any problems
with the imprisonment
term imposed.
[16] Accused is already
released from prison, he was released on the 7
th
May 2012
and most probably he is in Lesotho. From the response of the
magistrate it seems the accused did not pay the fine. The
reduction
of the fine would be a technical adjustment and the accused will in
no way be prejudiced. To summon the accused to court
for resentencing
will be a cumbersome exercise more so that he is a Lesotho citizen.
[17] I fully agree with
judgment of my colleague Moloi J in
S v THORISO
2011
JDR 0924 (FB) and I quote:
“
In this case
the practicalities do not permit such remission because the accused
is a Lesotho citizen whose address is difficult
to determine... The
state will have difficulty in finding a person in such circumstances
as the logistics of entering a foreign
country and searching for a
person there as well as the costs and time will be prohibitive... but
justice will be better served
by bringing closure to future criminal
litigation.”
[18] In the
circumstances, the following order is made:
18.1 Conviction is
confirmed.
18.2 The sentence is set
aside and substituted with the following sentence:
A fine of R3 000.00
(three thousand rand) or 10 (ten) months imprisonment of which half
of the sentence is suspended for a period
of 5 (five) years on
condition that accused is not convicted of contravention of section
4(b) of
Drugs and Drug Trafficking Act 140 of 1992
committed during
the period of suspension.
________________
S.J. THAMAGE, AJ
I concur.
_____________
J.P. DAFFUE, J
/spieterse