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[2008] ZAFSHC 134
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S v Mphatsoe (513/2008) [2008] ZAFSHC 134 (4 December 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review
No. :
513/2008
In
the review between:-
THE
STATE
versus
VALENTINA MAPHATSOE
_____________________________________________________
CORAM:
MOCUMIE,
J
et
MOLOI,
AJ
DELIVERED
ON:
4
DECEMBER 2008
_____________________________________________________
MOCUMIE,
J
[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”). The accused
,
together with two other persons, appeared in the Ladybrand
Magistrate’s Court on 21 April 2008 on a charge of
contravention
of section 5(b) of the Drug Trafficking Act, 140 of
1992, (“the Drug Trafficking Act”). On the same day (21
April
2008) accused who was No. 3 on the charge sheet then pleaded
guilty to dealing in 16,6 kilogram of dagga and was convicted
accordingly.
She was sentenced to R6 000,00 (six thousand rand) or
12 (twelve) months imprisonment. In addition she was sentenced to 10
(ten)
months imprisonment which was 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 her comments.
Inter
alia
she submitted that the term of imprisonment and the alternative fine
are proportionate to each other based on her calculation of
R500,00 x
12 = R6 000,00 which means that the accused would pay R500,00 each
month.
[3] The
accused pleaded guilty to dealing in dagga and was correctly
convicted. The issue is whether the presiding officer exercised
her
discretion judiciously when he sentenced 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 Maphumulo and Others
1920 AD 56
;
S
v Rabie
1975 (4) SA 855
(A) and
S
v Barnard
2004 (1) SACR 191
(SCA).
[4] 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 differing from one case to another, it may be a misdirection
for a presiding
officer to overemphasize the seriousness of the
offence or the interests of society and underemphasize the personal
circumstances
of the offender. That type of misdirection 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 40 year old
first
offender. She was arrested with two other people on 11 April 2008.
They appeared on 14 April 2008 when the matter was postponed
to 21
April 2008 whilst they remained in custody. When they appeared 10
days later the accused immediately took responsibility
for her
wrongful deed and pleaded guilty.
[6] She
is not employed. She is a widow with six children. The youngest
child is 13 years old. Her husband passed on in 2004.
She put all
the circumstances which led her 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
the circumstances of this case I am of the view that there is an
imbalance between the fine imposed and the alternative imprisonment
which would on its own have the result that the imposed sentence
cannot stand. In
State
v Motsamai
unreported Review Case 242/2008 this Court stated the following:
“
It is trite
that the balance between the fine imposed and alternative
imprisonment should be reasonable in view of all the circumstances
of
the particular case. This balance cannot and should never be
determined on the basis of a mathematical calculation. In this
regard the following was stated in
S
v Kapeng
1992 (1) SASV 596 (O) at 599 F – 600 B:
“
Daar is al
by herhaling beslis dat die verhouding tussen die boete en die
gevangenisstraf wat in die alternatief daartoe opgelê
moet word
redelik moet wees en afhanklik is van al die omstandighede van die
betrokke beskuldigde en die misdaad wat gepleeg is.
Reeds solank
terug soos 1924 het Regter Feetham in
R
v Frans
1924 TPD 419
op 419 soos volg verklaar:
'Where a fine is imposed as an
alternative to imprisonment it should, I think, bear some relation to
the probable resources and
earnings of the person on whom it is
imposed and to the number of months' imprisonment which are
considered sufficient as an alternative
punishment.'
Dit is by herhaling
beklemtoon dat straf soveel moontlik geïndividualiseer moet word
(vgl
S
v V
1972 (3) SA 611
(A)). …………….
Dit
is egter duidelik dat die verhouding tussen 'n boete en 'n periode
van gevangenisstraf nooit op 'n wiskundige wyse bereken of
toegepas
behoort te word nie
.”
(My underlining)
[10] Over
and above
I
am also of the view that the term of imprisonment in this instance is
also too long considering all the facts and circumstances
as the
suspended term of imprisonment that was imposed in addition should
also be taken into consideration.
[11] 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
21
April 2008 is set aside and substituted with the following:
“R3
000,00 (three thousand rand) or 6 (six) months imprisonment. In
addition 6 (six) 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.”
3. The sentence must
be deemed to have been imposed on 21 April 2008.
_
______________
B.C. MOCUMIE, J
I concur.
_____________
K.J. MOLOI, AJ
/sp