S v Peters (729/2007) [2007] ZAFSHC 140 (30 November 2007)

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[2007] ZAFSHC 140
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S v Peters (729/2007) [2007] ZAFSHC 140 (30 November 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case
No.: 729/2007
In the case between:
THE STATE
and
NATHAN
PETERS
CORAM:
C. J. MUSI, J
et
MOCUMIE, AJ
JUDGEMENT:
MOCUMIE, AJ
___
____________________________________________________
DELIVERED
ON:
30 NOVEMBER 2007
_______________________________________________________
[1] This matter came
before my brother
H.
M. Musi, J
on automatic review, in terms of section 302 read with 304 of the
Criminal Procedure Act 51 of 1977 (“the CPA”), from the
Magistrate
Court, Bloemfontein. The accused was convicted of
contravention of section 4(b) of Act 140 of 1992 the Drug Trafficking
Act (“the
Act”); possession 180 grams of dagga. He was sentenced
to R1 500,00 (one thousand five hundred rand) or 3 (three) months
imprisonment
and a further 4 (four) months imprisonment which 4
months imprisonment was suspended for 4 years on certain conditions.
[2]
H.
M. Musi J
couched a query regarding the appropriateness of the sentence in the
following words:
“
I
note that the sentence imposed is the type that is normally imposed
for dealing in dagga. Is there special consideration for the
addition of the wholly suspended term of imprisonment over and above
the option of a fine?”
The Magistrate supplied
her comments. She is of the view that:
“the
wholly suspended term of imprisonment over and above the option of a
fine would have the effect of deterring the accused from
committing
similar offences and also prevent the accused from continuing the
way of life he is presently leading.”
[3] The accused pleaded
guilty to possession of dagga and was correctly convicted. The issue
is whether the Magistrate exercised
her discretion judiciously when
she 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] The accused is a 18
year old first offender. He is not attending school. He resides
with his parents. It is not clear from
the Magistrate’s reasons
for sentence what persuaded her to consider this type of sentence as
the only appropriate option in these
circumstances. It is clear from
the record, including the Magistrate’s reasons that the Magistrate
did not consider other sentencing
options.
[5] The court dealing
with a case involving young children whose moral culpability cannot
be compared to that of an adult should approach
punishment as far as
possible from the point of view of the potential for rehabilitation
and care. In
S
v Nkosi
2000 (1) SACR 135
(W) guidelines were laid down for the sentencing of
juvenile offenders for both serious and less serious offences. See
also
S
v Z en
Vier Andere Sake
1999 (1) SACR 427
(E) at 430 f.
[6] In
S
v Phulwane & Others
2003 (1) SACR 631
(T) at 634 h to 635 a
Bosielo
J
states:
“
When a youth or juvenile strays
from the path of rectitude to criminal conduct, it is the
responsibility of judicial officer invested
with the task of
sentencing such a youth to ensure that she or he receives all
relevant information pertaining to such a juvenile
to enable him or
her to structure a sentence that will best suit the needs and
interests of the particular youth. It is, after all,
a salutary
principle of sentencing that sentence must be individualised. I
venture to suggest that every judicial officer who has
to sentence a
youthful offender must ensure that whatsoever sentence he or she
decides to impose will promote rehabilitation of that
particular
youth and have, as its priority, the reintegration of the youthful
offender back into his or her family and, of course,
the community.”
[7] The Magistrate’s
reasoning as alluded to above is unpersuasive. Suspended direct
imprisonment remains direct imprisonment.
It is very prejudicial to
an accused person especially a young first offender to be sent to
direct imprisonment for an offence such
as possession of dagga.
Although the dagga in this matter is more than the “normal” one
stick or one cigarette, a sentence of
direct imprisonment is still
inappropriate. The accused is exposed to a possible sentence of 4
months imprisonment should he be
in future convicted of a very small
amount of dagga.
[8] Although the
Magistrate states that the sentence will prevent the accused from
continuing the life he is presently leading, it
is not clear what she
means by this. There’s nothing on record in relation to the
accused’s way of life except that he is unemployed
and depends on
his mother’s support.
[9] In my view it would
serve no rational purpose to remit the matter to the Magistrate to
impose an alternative sentence. In my
view we are in as good a
position as the Magistrate was to impose the appropriate sentence.
[8] In
my view, the Magistrate misdirected herself in concluding that the
sentence aforementioned was the only suitable sentence to
impose on
an 18 year old first offender in these circumstances.
[9] In the circumstances
I make the following order:
1. The conviction of
contravention of section 4(b) Act 140 of 1992, possession of dagga,
is confirmed.
2. The
sentence of R1 500,00 or 3 months imprisonment and a further 4 months
imprisonment suspended for 4 years on certain conditions
is set aside
and replaced by the following.
3.
“R1500,00
(one thousand and five hundred rand) or 3 (three) months imprisonment
wholly suspended for 3 years on condition that the
accused is not
convicted of contravention of section 4(b) Act 140 of 1992 committed
during the period of suspension.
___________________

B. C. MOCUMIE, AJ
I
concur.
________________
C. J. MUSI, J
/em