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[2008] ZAFSHC 128
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S v Hlahele (523/2008) [2008] ZAFSHC 128 (19 November 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review
No. :
523/2008
In
the review between:-
THE
STATE
versus
RAPITSO MICHAEL
HLAHELE
_____________________________________________________
CORAM:
MOCUMIE,
J
et
MOLOI,
AJ
JUDGMENT
BY:
MOCUMIE,
J
_____________________________________________________
DELIVERED
ON:
19
NOVEMBER 2008
_____________________________________________________
[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
CPA”).
Two
accused persons appeared in the Senekal Magistrate’s Court on
23 July 2008 on a charge of contravention of section 5(b)
of the Drug
Trafficking Act, 140 of 1992, (“the Drug Trafficking Act”),
dealing in 61 kilogram of dagga. On 6 August
2008 accused 2 then,
Mr. Rapitso Michael Hlahele, pleaded guilty and was convicted as
charged. He was sentenced to 36 (thirty
six) months imprisonment of
which 8 (eight) months were suspended for 5 years on certain
conditions.
[2] I
was of the view that the sentence was too harsh and sent a query to
that effect. The presid
ing
officer supplied his comments.
[3] The accused pleaded
guilty to dealing in dagga and was correctly convicted. The issue is
whether the presiding officer exercised
his discretion judiciously
when he sentenced the accused to the aforementioned sentence.
[4] It
is trite that sentencing is a function that lies within the
discretion of the trial court. See
R
v Maphumulo and Others
1920 AD 56
;
S
v Rabie
1975 (4) SA 855
(A) and
S
v Barnard
2004 (1) SACR 191
(SCA). A Court of Appeal or review is not entitled
to interfere with the imposed sentence unless it is convinced that
the sentencing
discretion has been exercised improperly or
unreasonably. See
S
v Pillay
1977 (4) SA 531
(A) at 534H – 535G. Amongst other varying
factors it may be a misdirection for the presiding officer to
overemphasize the
seriousness of the offence or the interests of
society and underemphasize the personal circumstances of the offender
which would
warrant the Court of Appeal or review to interfere with
the sentence imposed.
[
5] The
accused’s personal circumstances are set out by the presiding
officer in his judgment. The accused is a 25 year old
first
offender. He was arrested with another person on 22 July 2008. He
appeared on 23 July 2008 when the matter was postponed
to 6 August
2008 whilst they remained in custody. When he appeared 10 days later
he immediately took responsibility for his wrongful
deed and pleaded
guilty. The prosecutor consequently led no evidence against the
other accused.
[6] He
is not employed. He is unmarried and has no children. He pleaded
guilty and put all the circumstances which led him to
commit this
offence before the court.
[7] 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 paragraphs
5 and 6 above.
[8] It
is understandable for a presiding officer who deals with cases of
this nature on a daily basis to impose sentences that will
send a
message to potential offenders and the society that courts will not
tolerate the commission of this type of offence. It
must, however,
be remembered that although prevalence of a crime should be taken as
a materially aggravating factor, that should
be done only in
conjunction with other aggravating factors. This factor must not be
overemphasised. See
S
v Seoela
1996 (2) SA 616
(O). Exemplary sentences are basically unjust. Each
individual accused that appears before a court must be treated
according
to his or her own personal circumstances.
[9] In
my view the presiding officer misdirected himself in concluding that
the only suitable sentence to impose on this accused
in these
circumstances was a long term of imprisonment without any other
option provided for by the Drug Trafficking Act.
[10] In
the circumstances I make the following order:
1. The conviction of
contravention of section 5(b) of the Drug Trafficking Act, 140 of
1992, is confirmed.
2. The
sentence imposed by the magistrate on 6 August 2008 is set aside and
substituted with the following:
“R3
000,00 (three thousand rand) or 12 (twelve) months imprisonment. In
addition 12 (twelve) months imprisonment wholly suspended
for 5 years
on condition that the accused is not convicted of contravention of
section 5(b) of Act 140 of 1992 committed during
the period of
suspension.”
_
______________
B.C. MOCUMIE, J
I concur.
_____________
K.J. MOLOI, AJ
/sp