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2005
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[2005] ZAFSHC 131
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S v Ludude (877/2005) [2005] ZAFSHC 131 (25 August 2005)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review No. : 877/2005
In
the review between:
THE
STATE
and
SIBUSISO
XOLILE LUDUDE
_____________________________________________________
CORAM:
RAMPAI
J
et
BLOEM
AJ
_____________________________________________________
JUDGMENT
BY:
RAMPAI
J
_____________________________________________________
DELIVERED
ON:
25
AUGUST 2005
[1] The
accused was convicted on his plea in the Dewetsdorp district court on
22 June 2005 of the contravention of section 4(b) of
the Drugs and
Drug Trafficking Act, 1992 (Act No. 140 of 1992), (the Act), namely
illegal possession of 855 grams of dagga. On the
same day he was
sentenced to a fine of R3 000,00 or 6 monthsâ imprisonment plus a
further 6 monthsâ imprisonment conditionally
suspended for 4 years
on condition that the accused not be convicted of section 4(b) of the
Act committed during the period of suspension.
[2] The
matter was subsequently allocated to me on review. I then asked the
magistrate to furnish reasons for the sentence he imposed
on the
accused.
[3] In
his response to my request the magistrate commented as follows:
â
1. It
is evident from accused own e
xplanation
that he committed offence with full knowledge of the unlawfulness and
consequences of his conduct thus deliberately violating
the law.
2. The
above fact is confirmed by accused previous conviction of similar
offence and this entitled the court to treat accused as a
second
offender taking into consideration accused personal circumstances,
seriousness of the offence and the interests of society
as amplified
on reasons of sentence contained in the record.
3. The court recognised that the
criminal justice system exists to serve the interests of public and
sentencing being an integral
part of system has same reasons.
Therefore
the court imposed sentence in order to send a clear message on one
hand to the prospective criminals that this type of
conduct,
especially if repeated in circumstances of the present case, cannot
be tolerated, and on the other hand to the public that
courts take
seriously the restoration and maintenance of law and order.
4. In light of the aforegoing it is my
humble submission that the sentence imposed is not excessive but is
in fact lenient as accused
has once more been afforded an alternative
of a fine to keep him out of jail which was paid without any
difficulty or delay.â
[4] The
following were the personal circumstances of the accused. He was 21
years old at the time of the offence. He was an unmarried
man. He
was the father of one minor child. He was the sole breadwinner of
ten dependants. His dependants consisted of his mother,
his father,
his seven younger siblings and his own child. His parents were
unemployed and they were not receiving any social welfare
grants.
Some of his siblings were still school-going. He was a casual street
vendor. His income fluctuated between R1 200,00 to
R1 500,00 per
month. He pleaded guilty to the charge. He expressed remorse. He
boiled the leaves of the dagga plant and used the
resultant liquid
substance for medicinal purposes. He had one previous conviction of
illegal possession of this prohibited drug.
[5] I
consider the following circumstances to constitute mitigating factors
in favour of the accused: his relative youth; his plea
of guilty; his
expression of remorse; his status as the sole breadwinner; the small
quantity of the prohibited substance found in
his possession and the
motive for his use of the prohibited substance. Regrettably the
record does not show the accusedâs level
of formal education.
[6] The main aggravating
factor was that the accused was not a first offender. On 5 August
2004, about ten months before the current
conviction, the accused was
convicted of the same offence. He was sentenced to a fine of R1
000,00 or 3 monthsâ imprisonment.
Half of the sentence was
conditionally suspended for 3 years.
[7] The accused has now
breached the condition of the partially suspended sentence imposed on
him last year. The magistrate correctly
pointed out during the
sentencing phase that the accused did not heed the previous warning.
But then the magistrate went further
and remarked that the court was
now required to ensure that the accused did not repeat his actions.
I understood the magistrate
to mean that it was now time he imposed a
stiffer sentence on the accused than it was done previously. In his
reasons for sentence
the magistrate replied that he imposed the
current sentence in order to deter prospective criminals, especially
second offenders,
by showing them that possession of the prohibited
substance in question could no longer be tolerated.
[8] In
S
v MOSIA
1997 (2) SA 687
(OPD) the accused, a 39 year old first offender, had
been sentenced by a district magistrate to a fine of R3 000,00 or 18
monthsâ
imprisonment for the illegal possession of
8
kg of dagga in contravention of section 4(b) of the Act
.
On review the court held that the sentence was shockingly severe,
set it aside and substituted therefor one of a fine of R800,00
or 4
monthsâ imprisonment.
[9] In
the instant case, though the accused was a second offender, I am of
the view that the sentence imposed on him was shockingly
severe and
disturbingly inappropriate regard been had to the comparatively small
quantity of 855 grams of dagga. The sentence of
this severity in
this division befits distributors and not consumers. Compare this
with
S
v MAKOAE
1997 (2) SA 705
(OPD) where the accused, a 21 year old first
offender, was convicted of
dealing
in 6 kg of dagga in contravention of section 5(b) of the Act
.
He was sentenced by the magistrate to a fine of R3 000,00 or 30
monthsâ imprisonment plus a further period of 30 monthsâ
imprisonment
conditionally suspended for 5 years. On review the
sentence was drastically reduced by this court to a fine of R3 000,00
or 8 monthsâ
imprisonment plus 12 monthsâ imprisonment
conditionally suspended for 4 years.
[10] Upon my reading of
the record I am convinced that the magistrate has over-emphasized the
accusedâs previous conviction, his
motive for using the substance
and the deterrent objective of sentencing to the detriment of the
accused. It seems to me that too
much emphasis was laid on the
gravity of the crime as well as on the interest of the community and
that too little emphasis was laid
on the profile of the accused as an
individual. The ultimate inappropriate sentence was occasioned by
such imbalance. The misdirection
was so material that it justifies
interference with the sentence imposed. Since the proceedings were
not, in my opinion, in accordance
with justice, the sentence cannot
be allowed to stand.
[11] Accordingly I make
the following order:
The conviction is
confirmed.
11.2 The
sentence is set aside. It is substituted with one of a fine of
R900,00 or 3 monthsâ imprisonment .
11.3 The
difference of R2 100,00 between the fine of R3 000,00 and R900,00
must be refunded to the accused as soon as practically
possible.
The dagga which was
found in the possession of the accused is declared to be forfeited
to the State in terms of section 25(1)(a)(iii)
of the Act.
______________
M.H. RAMPAI, J
I
agree.
____________
G. BLOEM, AJ
/sp