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[2007] ZAFSHC 86
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Moeketsi v S [2007] ZAFSHC 86 (10 August 2007)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Appeal No. A188/07
In
the appeal between:
TIEHO
MOEKETSI
Appellant
versus
THE
STATE
Respondent
CORAM:
EBRAHIM,
J
et
MOLEMELA,
AJ
_____________________________________________________
JUGDMENT:
EBRAHIM,
J
DELIVERED ON:
10
AUGUST 2007
[1] The appellant was
convicted on 2 February 2007 of contravening section 5(b) Act 140 of
1992 (the Abuse of Dependence-producing
Substances Act 1992) on
account of dealing in 679,25 kilograms of dagga. He pleaded guilty
and was convicted on his plea and sentenced
to 8 (eight) years
imprisonment. He appeals against his sentence on the ground that the
learned sentencing magistrate gave undue
consideration to the
seriousness of the offence to the detriment of his own personal
circumstances. In my view there is substance
in the appellantâs
criticism as the sentence of 8 (eight) years imprisonment imposed
certainly induces a sense of shock and on
that basis this court is at
large to interfere with the sentence imposed despite the lack of
misdirection on the part of the learned
sentencing magistrate.
[2] Whilst it is
extremely important that the seriousness of the offence and the
interests of the community be given due weight, in
this case the
learned magistrate failed to have regard to the compelling personal
circumstances of the appellant
viz
:
the appellant is a mature man, 43 years of age, with family
commitments and dependants and that no doubt being alive to his
responsibilities,
elected to come clean and pleaded guilty. An added
consideration is the remorse that he showed for his criminal act by
pleading
guilty. When one adds to it the fact that the appellant is
a first offender, these personal considerations become extremely
weighty
so that any sentence which is imposed must reflect that these
considerations have been suitably accounted for. Having regard to
this, I am of the view that an appropriate sentence in this matter
would be one of 6 (six) years imprisonment two of which are suspended
for 5 (five) years on condition that the appellant is not convicted
of the offence of dealing in dagga, that is contravening section
5(b)
of Act 140 of 1992 committed within the period of suspension. Such a
sentence would adequately give effect to both the retributive
and
deterrent aspects of punishment, whilst reflecting the courtâs
benevolent attitude towards his personal circumstances, his
clean
record and his willingness to confess his guilt. The sentence is
deemed to be imposed on 2 February 2007.
_____________
S. EBRAHIM, J
I
concur.
__________________
M.B. MOLEMELA, AJ
On
behalf of appellant: Adv. R. van Wyk
Instructed
by:
Molenaar,
Griffiths & Melato
Sasolburg
On
behalf of respondent: Adv. K.J.A. Ntimutse
Instructed
by:
Director
Public Prosecutions
BLOEMFONTEIN
/sp