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[2008] ZANCHC 5
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S v Bartlette (CA&R 92/07) [2008] ZANCHC 5 (15 February 2008)

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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
No: CA&R 92
/07
Heard:
11/02/2008
Delivered:
15/02/2008
In
the matter:
JEROME
BARTLETTE
Applicant
and
THE
STATE
Respondent
Coram: Bosielo AJP
et
Mokgohloa AJ
JUDGMENT ON APPEAL
BOSIELO
AJP
This is an appeal against sentence
only. On 24 September 2004 and in the Regional Court, Kimberley,
the appellant pleaded guilty
to dealing in undesirable
dependence-producing substances in contravention of section 5(b)
read with sections 1, 13(f), 17(e),
25 and 64 of Act 140 of 1992
further read with Part III of Schedule 2 of Act 40 of 1992. He was
sentenced to imprisonment for
a period of 12 years.
With leave of the court a quo, the
appellant is now appealing against his sentence. The foundational
ground of appeal against the
sentence is that the magistrate erred
or misdirected himself by over-emphasising the seriousness of the
offence at the expense
of the appellant’s personal circumstances
as a result whereof he imposed a sentence which is shockingly severe
and disturbingly
inappropriate. As a result, this court is
requested to interfere with such a sentence and impose an
appropriate sentence.
It remains a salutary and
well-established principle of our law that sentencing resides
pre-eminently within the discretion of the
trial court. The powers
of an appeal court to interfere with the sentence imposed by the
trial court are therefore clearly and
seriously circumscribed.
Undoubtedly, this is intended to avoid unjustified erosion of the
sentencing powers and discretion of
the trial court by the appeal
court. Over the years our courts have given different
interpretations to the test to determining
when the appellate court
can interfere with a sentence imposed by the trial court.
Regrettably in the process some subtle confusion
has crept in and
created some serious uncertainty. However, the acid test to
determine when interference with a sentence by an
appeal court is
justified was, in my view, lucidly and authoritatively enunciated in
S v Kgosimore
1999(2) SACR 238 (SCA) at p 241 para [10] where Scott JA stated the
following:
“
[10]
It is trite law that sentence is a matter for the discretion of the
court burdened with the task of imposing the sentence. Various
tests
have been formulated as to when a Court of appeal may interfere.
These include whether the reasoning of the trial court is
vitiated by
misdirection or whether the sentence imposed can be said to be
startlingly inappropriate or to induce a sense of shock
or whether
there is a striking disparity between the sentence imposed and the
sentence the Court of appeal would have imposed. All
these
formulations, however, are aimed at determining the same thing; viz
whether there was a proper and reasonable exercise of the
discretion
bestowed upon the court imposing sentence. In the ultimate analysis
this is the true inquiry. (Compare S v Pieters
1987 (3) SA 717
(A) at
727G - I.) Either the discretion was properly and reasonably
exercised or it was not. If it was, a Court of appeal has no
power
to interfere; if it was not, it is free to do so. I can, accordingly,
see no juridical basis for the stricter test suggested
by counsel;
nor is there anything in s 316B of the Act, or for that matter s
310A, to suggest otherwise. (See also S v Anderson
1964 (3) SA 494
(A).) It follows that, in my view, whether it is the Attorney -
General (now the Director of Public Prosecutions) or an accused
who
appeals against a sentence, the power of a Court of appeal to
interfere is the same.”
As the confusion surrounding this
test did not appear to have dissipated, the Supreme Court of Appeal
saw the need to define if
not refine the test further. In
S
v Malgas
2001(1) SACR
469 (SCA) at p478 para[12]
Marais
JA
elaborated on the
test as follows:
“
A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it. To do so
would be to usurp the sentencing discretion of the trial court. Where
material misdirection by the trial court vitiates its exercise
of
that discretion, an appellate Court is of course entitled to consider
the question of sentence afresh. In doing so, it assesses
sentence as
if it were a court of first instance and the sentence imposed by the
trial court has no relevance. As it is said, an
appellate Court is at
large. However, even in the absence of material misdirection, an
appellate court may yet be justified in interfering
with the sentence
imposed by the trial court. It may do so when the disparity between
the sentence of the trial court and the sentence
which the appellate
Court would have imposed had it been the trial court is so marked
that it can properly be described as 'shocking',
'startling' or
'disturbingly inappropriate'. It must be emphasised that in the
latter situation the appellate court is not at large
in the sense in
which it is at large in the former. In the latter situation it may
not substitute the sentence which it thinks appropriate
merely
because it does not accord with the sentence imposed by the trial
court or because it prefers it to that sentence. It may
do so only
where the difference is so substantial that it attracts epithets of
the kind I have mentioned. No such limitation exists
in the former
situation.”
In determining whether the sentence
imposed on the appellant is disturbingly inappropriate or shockingly
disproportionate to the
crime for which he was convicted, the court
must consider the offence, its effects and its consequences or
impact on the broader
society and balance that against the personal
circumstances of the appellant.
There is no doubt that the offence
for which the appellant was convicted is very serious. Both counsel
for the appellant and respondent
were agreed on this aspect. It is
clear from the charge sheet that the appellant was in the serious
business of dealing in and
distributing quite a bewildering array of
drugs which included 48 ecstasy tablets, 2 grams of heroin, 9 LSD
tablets, 1 full moon
cocaine crystal, 2 halfmoon cocaine crystal, 1
quarter cocaine crystal, 3 grams of cocaine, 7 grams of heroin, 150
ecstasy tablets,
10 grams of heroine and another 10 grams of
cocaine. The tolal value of all these drugs amounted to R 26
000-00.
I now have to consider and weigh
the appellant’s personal circumstances against the nature and
seriousness of this offence as
fully set out above. At the time of
the commission of this offence the appellant was 29 years old with
two minor children; since
the appellant lost his job in Johannesburg
in 1997, he has never been employed; it is not clear if the
appellant is married or
not; the appellant has one previous
conviction for assault with intent to cause grievous bodily harm.
In considering an
appropriate sentence, the magistrate found that the interests of
society far outweighed the personal circumstances
of the appellant.
He furthermore, found, correctly in my view, that the effects and
impact of drug abuse in our communities are
far-reaching if not
catastrophic. This motivated him to find that the element of
deterrence and retribution should enjoy precedence
over reformation
and rehabilitation of the appellant. I can find no fault with this
approach.
The problem of drug-trafficking has
haunted mankind for many years. With the passage of time, it has
metamorphosed into a huge
and intricate business enterprise which
involves drug-lords, couriers, so-called runners and those who buy
and use it. As far
back as 1989,
Kriegler
J
(as he then was) had
the following to say about drugs and their effects in
S
v Howe
1989(2) SA 473
(W) at 478 E-G.
“
Die gebruik van
dwelmmiddels is verwerplik. Oor die jare heen het die Staat, dit wil
sê Wetgewer, uitvoerende gesag en die regsplegende
gesag, by
herhaling sy onwrikbare teenstand teen hierdie maatskaplike euwel te
kenne gegee. Te meer nog is daar stryd gevoer teen
handelaars in
dwelms. Die verfoeilikheid van hul rol is by herhaling beklemtoon.
Hulle teer op verslaafdes. Hulle poog om hul bose
besigheid in stand
te hou en uit te brei. Dit doen hulle in die wete dat hul
handelsvoorraad moreel verwerplik en maatskaplik benadelend
is. Hulle
is ook 'n noodsaaklike skakel in die verspreidingsnetwerk. Dit
geskied met winsbejag.”
I strongly believe that it is no
exaggeration to state that, with the effluxion of time, instead of
abating the problem of dealings
in drugs concomitant with drug abuse
has become pandemic. It has developed into a serious malignant
cancer which is fast eroding
the social and moral fabric of our
society. This is notwithstanding the tough stance taken by the
Legislature, coupled with the
severe sentences which our courts
impose. There is hardly a day that passes without a report in the
media of some people arrested
for either dealing in drugs or using
drugs or importing them into our country. In recent times our
country has been seriously
invaded by a variety of drugs which are
imported from some overseas countries. Quite paradoxically, our
country has become a safe
haven for drug-lords since the advent of
democracy. We are caught in the big and intricate web of
international drug-trafficking.
What is even more frightening is
how drugs have found their way into our schools which used to be
regarded as safe citadels for
our children. Our youth, students and
even school children are at a serous risk of becoming drug addicts.
In the quest for quick
profit, the unscrupulous drug peddlers make
no distinction. Nobody is spared from this scourge as drug-dealers
spread their tentacles
more wider. They sell their drugs to
everybody including our youth, students and school children. In
fact because of their youthfulness,
naivety, peer pressure and
simple gullibility, our youth have become their easy target.
It is not surprising that
Steyn
AJ
described drug
dealers as follows in
S v
Randall
1995(1) SACR 559
(C) at 566(i):
“
Drug
dealers are unscrupulous criminals. They will use the weak, the
gullible, and, may I add, the greedy. They are without conscience.

They do not care for those who facilitate their evil objectives, nor
do they have a concern about the lives they ruin by trafficking
in
drugs. Society is at risk should it hesitate to use every legitimate
mechanism at its disposal to protect itself against their
destructive
designs. One of these weapons - and I emphasise that it is only one
of them - is to make it clear to courier and principal
alike, that
the game is not worth the candle and that the price society exacts
for transgressions will not be tempered by concern
for the plight of
the weak and the greedy.”
Commenting further on this
ubiquitous and intractable problem
Steyn
AJ
once again expressly
himself strongly as follows in
S
v Sebata
1994(2) SACR 319
(C) at 325b-e
“
Those
who deal in these drugs, or who participate in the process of making
such dealing possible, must expect to receive sentences
which include
substantial periods of imprisonment from our Courts. All the
decisions emphasise the devastating impact the substances
have on the
lives of those who can become exposed to them, more especially the
youth. It is therefore the duty of the Courts, in
so far as
sentencing plays its role as a deterrent, to use the sentencing
process as effectively and wisely as possible in combating
the
incidence of these offences.
It
is trite to say that each case must depend on its own facts. The
personal factors operating in appellant's favour are that he is
a
relatively young person and a first offender. However, the following
considerations need also to be given weight when one has to
assess an
appropriate penalty. Appellant did not give evidence as to what his
role was. Was he merely a courier or was he part of
a broader
conspiracy to import cocaine into a new market? He expressed no
remorse, he entered the country illegally on a false passport
and he
failed to co-operate with the police in their attempts to uncover
those who were perhaps even more seriously involved in the
commission
of the offence.”
I
am in respectful agreement with the above-quoted apt description of
drug dealers and the strong aversion expressed by the court
against
drug-dealers.
The crisp question that I need to
decide in this appeal is whether, given the above-stated facts, it
can be said that a sentence
of imprisonment for 12 years induces a
sense of shock or is shockingly disproportionate to the offence for
which the appellant
was convicted. As I alluded to earlier in my
judgment the magistrate found that this case warranted a sentence
based on deterrence
than rehabilitation. Given the facts of this
case, I can find no fault with that reasoning.
In deciding this
question, I found useful guidance in the dictum by
M.T.
Steyn J
in
S
v J
1975(3) SA 146 (OFD)
at 155G where he stated that:
“
In
die Engelse reg is dieselfde standpunt gehuldig. In R. v Ball,
(1951)35 Cr. App. R. 164, het Regter HILBERY dit gesê:
'In
deciding the appropriate sentence a court should always be guided by
certain principles. The first and foremost is the public
interest.
The criminal law is publicly enforced, not only with the object of
punishing crime, but also in the hope of preventing
it. A proper
sentence, passed in public, serves the public interest in two ways.
It may deter others who might be tempted to try
crime as seeming to
offer easy money on the supposition that, if the offender is caught
and brought to justice, the punishment will
be negligible. Such a
sentence may also deter the particular criminal from committing a
crime again, or induce him to turn from a
criminal to an honest life.
The public interest is indeed served, and best served, if the
offender is induced to turn from criminal
ways to honest living...
Not only in regard to each crime, but in regard to each criminal, the
court has the right and the duty to
decide whether to be lenient or
severe.'"”
Objectively speaking a sentence of
12 years imprisonment is severe and harsh. However, it is clear
that by making provision for
severe sentences, the Legislature was
endeavouring to give the courts sufficient power to exterminate the
ever-growing social evil
of abuse of drugs in our community. Drug
trafficking is a scourge all over the world. It is the kind of
insidious evil that has
the capacity to ruin mankind. In its wake,
we find broken families, drug addicts and the youth who, due to
naivety and lack of
experience have proved to be easy prey to
unscrupulous dealers. Undoubtedly this poses a serious challenge to
our society. Our
law enforcement agencies are doing their best to
combat this scourge. The legislature has provided for severe
sentences to act
as a deterrent. Our courts cannot afford to sit
supinely and ignore what is happening around us. Our courts have a
duty and responsibility
to rise up to the challenge. The courts can
certainly make their contribution in the gallant fight against this
pernicious evil
by imposing appropriate sentences. In the
circumstances, appropriate sentences are those that will send a
clear and unequivocal
message to the public including drug dealers
that our courts will not hesitate to impose particularly severe
sentences which are
intended to act as deterrents even for those who
dabble in drugs and prohibited substances. To my mind, drug-dealers
deserve no
sympathy or pity. They must face the full might of the
law. See
S v Jeminez
2003(1) SACR 507 (SCA) at p522 par [36].
Having given this matter careful
and anxious consideration, I am of the view that the personal
circumstances of the appellant pale
into insignificance when
considered against the gravity of this offence. In my view, the
greater public interest for protection
of society against this
scourge justify the sentence imposed on the appellant. I am unable
to say that the magistrate failed to
exercise his sentencing
discretion properly. On the contrary I am constrained by the facts
of this case to find, as I hereby do,
that a sentence of 12 years
imprisonment is appropriate. Severe as it might be, it is intended
to send a clear message to all
drug dealers that our courts have
finally declared war on them. There is therefore no basis on which
this court can legitimately
interfere with such a sentence.
In the result and for the
aforegoing reasons, I make the following order:
The appeal against the sentence
imposed on the appellant is dismissed.
_____________________
L
O BOSIELO
ACTING
JUDGE PRESIDENT
Northern
Cape Division
I
agree.
_____________________
F
E MOKGOHLOA
ACTING
JUDGE
Northern
Cape Division
On behalf of the Applicant
:
Adv. B. SEGONE
Instructed
by: KIMBERLEY JUSTICE CENTRE
On
behalf of the Respondent
:
Adv. M. MASHUGA
Instructed
by: DIRECTOR PUBLIC PROSECUTIONS