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[2008] ZAFSHC 76
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S v Ramateme (182/2008) [2008] ZAFSHC 76 (26 June 2008)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case
No.: 182/2008
In the case between:
THE
STATE
and
RAMATEME
RAMATEME
_______________________________________________________
CORAM:
MOCUMIE, J
et
MOLEMELA, AJ
_______________________________________________________
JUDGEMENT:
MOCUMIE, J
_______________________________________________________
DELIVERED
ON:
26 JUNE 2008
_______________________________________________________
REVIEW
JUDGEMENT
[1]
The
matter came before me on automatic review in terms of section 302
read with 304 of the Criminal Procedure Act 51 of 1977 (“the
Act”). The accused appeared in Ficksburg Magistrate Court on
7 January 2008 on a charge of contravention of section 5(b)
of the
Drug Trafficking Act 140 of 1992 (the Drug Trafficking Act). On 7
January 2008 he was convicted as charged and sentenced
to 4 years
imprisonment of which 1 year was suspended on certain conditions.
[2] I was of the view
that the sentence was too harsh and sent a query to that effect.
The Magistrate supplied his comments.
[3] The
accused pleaded guilty to dealing in dagga and was correctly
convicted. The issue is whether the Magistrate exercised
his
discretion judiciously when sentencing the accused to the
aforementioned sentence. It is trite that sentencing is a function
that lies within the discretion of the trial court. See
R
v Maphumalo and Others
1920 AD 56
;
S
v Rabie
1975 (4) SA 855
(A) and
S
v Barnard
2004 (1) SACR 191
(SCA).
[4] The
accused is a 30 year old first offender. He was arrested with two
other people on 5 January 2008. They appeared for
the first time
before the court on 7 January 2008. He immediately took
responsibility for his wrongful deed and pleaded guilty.
The
prosecutor consequently withdrew the charge against the others. He
is not employed. He is single with dependants. He
put all the
circumstances that led him to commit this offence before the court.
[5]
It is clear from the record, including the presiding officer’s
reasons for sentence that considerable weight was placed
on the
interests of the society in total disregard of all other important
factors including the factors enumerated in paragraph
2 above.
[6] The Presiding
Officer has verily acceded that having read recent decisions dealing
with sentencing of drug dealers, he was
inclined to a sentence
different to the one imposed on 7 January 2008.
[7] It
is understandable for presiding officers who are dealing with cases
of this nature to be exasperated and at worst despondent
when it
comes to imposition of appropriate sentences, which would be seen by
the community as effective sentences. It is however
important to
consciously refrain from imposing sentences to impress the community
or sacrifice an individual accused with favourable
mitigating
factors at the altar of deterence. That is what makes a presiding
officer impartial. Each accused that appears before
the court is an
individual, with his or her own unique circumstances which can never
be the same as the next accused who has
committed the same offence.
Consistency in the imposition of sentence to send a message that the
commission of a particular
offence will not be tolerated should not
be allowed to displace the discretionary powers of a presiding
officer in imposing individualised,
effective and appropriate
sentences.
[8] In my view the
presiding officer misdirected himself in concluding that the
sentence aforementioned was the only suitable
sentence to impose on
this accused in these circumstances.
[9] The
last aspect which the presiding officer was not given a opportunity
to address and comment on is the provisions of section
103(1) read
with (2) and (3) of the
Firearms Control Act 60 of 2000
. For the
sake of finality and without creating a possibility of any prejudice
to the accused I will deal with it in this judgment
instead of
remitting the matter to the presiding officer to deal with it as set
out in the Act and in humerous cases including
S
v LUKWE
2005(2)
SACR 578 (W);
S
v SMITH
2006 (1) SACR 307
(W) at para [8] and
S
v MAAKE
2007 (1) SACR 403
(T).
[10] In the
circumstances I make the following order:
ORDER:
The
conviction of contravention of section 5(b)
of the Drug Trafficking Act 140 of 1992 is confirmed.
The sentence
imposed by the Magistrate on 7 January 2008 is set aside and
replaced by the following:
“
2(two) years
imprisonment of which 1 year and 6 months are suspended for five
years on condition that the accused is not convicted
of
contravention of section 5(b) of the Drug Trafficking Act 140 of
1992 committed during the period of suspension.”
In terms of section
103 of action 60 of 2000 the accused is deemed to be unfit to
possess a firearm.
This order is to be
brought to the attention of the Commissioner of Correctional
Services where the accused is placed for
immediate release.
_____
___________
B. C. MOCUMIE, J
I concur.
___________________
M. B. MOLEMELA, AJ
/em