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1986
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[1986] ZASCA 135
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S v Reay (161/86) [1986] ZASCA 135 (27 November 1986)
161/86
IN THE SUPREME COURT OP
SOUTH AFRICA
(APPELLATE DIVISION)
In the appeal of:
GEORGE REAY
appellant
versus
THE STATE
respondent
Coram
: JOUBERT et SMALBERGER JJA, et GALGUT AJA.
Date of Hearing
: 7 November 1986
Date of Judgment
27-11-1986
J U D G M E N T
GALGUT AJA
:
The appellant pleaded guilty in the Regional Court,
Johannesburg, to five counts of housebreaking with intent to steal and theft,
and one count of pos-
/session
2
session of dagga in contravention of sec. 22(A)(10)(a) of Act 101 of 1965. He
was duly convicted on all six counts. He was sentenced
to one year's
imprisonment on each of the five counts of housebreaking with intent to steal
and theft; on the remaining count he
was sen-tenced to a fine of R50,00 or three
months' imprisonment. His appeal to the Transvaal Provincial Division against
the sentences
imposed in respect of the five counts of housebreaking with intent
to steal and theft was dismissed, as was his application for leave
to appeal to
this Court. He thereafter petitioned this Court for the necessary leave, which
was duly granted.
The offences were committed over a period of fourteen months from July 198l
to September 1982. Each instance involved breaking into
a pharmacy and stealing
a quantity of drugs. On four of the occasions the appellant also stole cash in
amounts ranging from R163,00
to Rl 800,00. The appellant was 19 years of
/ age
3
age when he committed the first two offences, and 20 years old when he
committed the remaining three.
The defence called Mr Basil Carnie, an expe-
rienced
clinical psychologist, to give evidence in
of mitigation/sentence. He also has knowledge of the
treatment and therapy given to prisoners. This ap-
pears from the following extract from his evidence:
"I am familiar with this. One of my interns at Weskoppies is now Colonel Rina
Nel of the Pretoria Central Prison and a lot of my
colleagues are now in senior
positions there and we liaise together. I have also trained a lot of the prison
personnel. The prison
personnel send two interns per year to Weskoppies Hospital
for training as clinical psychologists, once they have completed the Honours
Degee in Psychology. So I am pretty au
fait
with the circum-stances as
regards the treatment and therapy given to
patients."
Mr Carnie had had interviews with the appellant
and
his parents. The opinions expressed by Mr Carnie
were based mainly on
information gleaned from the appellant
/ and
4
and his parents. The State did not challenge the correct-ness of such
information. The appellant did not testify.
It appears from Mr Carnie's evidence that the appellant had a serious drug
dependency problem at the time of the commission of the
offences. At the age of
7, while living in Newcastle in England, the appellant began sniffing petrol and
later lighter gas. After
moving to South Africa with his parents he started
sniffing glue. He began using dagga and a variety of other harmful habit-forming
drugs including Mandrax and LSD. He became particularly dependent upon a drug
known as Welconal. His abuse of this drug was so severe
that two fingers of his
right hand became gangrenous and had to be amputated. As a result of injections
of drugs that he administered
to himself he developed an abscess on the inside
of his right elbow which necessitated an operation. He also contracted
/ hepatitis
5
hepatitis as a consequence of his drug taking. According to Mr Carnie the
appellant's drug abuse was more self-destructive than harmful
to other people.
The appellant passed standard 7 at school before undergoing some tech-nical
training. He worked for Escom for a
while but lost his employment as a result of
drug abuse. The appellant voluntarily attended SANCA (the South African National
Council
on Alcohol and Drug Dependence Organisation) but was unfortunately only
seen on an irregular basis. The main problem underlying his
drug abuse, namely
an emotionally inadequate personality, was apparently never treated. In 1983 his
parents, from sheer frustration
because of his drug problem, sent the appellant
to live with his ailing grandfather in England. He, however, continued his
drug-taking
overseas. He returned to South Africa in 1984. After his arrest he
was seen by a district surgeon and the evidence is that he had
/ to
6
to be given doses of Welconal because he was in a comatose condition.
At the time of his trial the appellant had been in custody for some six
months and had not had drugs during that period. I quote the
following passages
from Mr Carnie's evidence. I make no excuse for doing so at length. These
passages set out his views concerning
the appellant's condition, how and where
he should be treated and the probable long term prognosis.
"The drugs are physiologically out of his system but definitely not
psycho-logically.
Now, so would you still say that the accused is psychologically dependent on
drugs at the moment?-- Definitely
so .
In the accused's case he has a serious susceptibility to the psychological
dependence on drugs and by virtue of his personality make-up,
will be again
susceptible to the use of drugs and involve himself" (if he is not
treated).
/ "We
7
"We have a case of a person who is adequately equipped in terms of his
intelligence to differentiate between right and wrong, but
emotionally
inade-quately equipped tp deal with the stresses of life and that until he has
received psycho-therapy and some emotional
support, I do not believe his
rational abilities will be able to prevent him from re-entering the world of
drugs.
Now, what would the prognosis be for the accused should he undergo
psycho-therapy on a professional basis?-- I believe the prognosis
should be
positive, providing that he is seen on a long-term basis and then preferably
under strict supervision in a place like Magaliesoord
near Cullinan, Pretoria,
where he is kept there as a certified, where he is committed for a period of
time, so as to keep that supervision.
I do not believe he can be treated on an
out-patient basis as yet, because of his
susceptibility to Welconal
if he
is motivated, which I believe he is, I believe the prognosis to be a lot better.
I think also conducive to this is the fact
that his parents seem to be
one-hundred percent behind him and they are very supportive of this, and I
believe with the fact that
he has an average intelligence, that he has realised
how destructive his drug-taking habits
/ have
8
have become, I believe that long-term there should be a reasonable
prognosis.
(As) he is still inadequately equipped to control his drug-taking, I believe
that without support, without control, without strict
supervision over a pe-riod
of time, there should be little prognosis for him; in other words, he will not
be able to do this on his
own accord.
Now obviously you would not
recom-
mend that the accused be treated while
in society itself, that he
is for instance,
should he get a suspended sentence, that
he would
not — Definitely not.
So he should be in a place where there is some
form of strict discipline?-That is correct.
Taking the prison setting where they
have behaviour modification
techniques,
I do not believe that with the accused
and his personality
structures, I do
not believe he is receptive to that type
of treatment or
that he will respond.
I believe that he has got to be in an
institution where the therapeutic milieu
is geared for drug rehabilitation
as
in the case of Magaliesoord where there
is strict supervision. Also, unfortunately,
I do not believe the prisons are adequately
equipped with personnel to
deal with
each individual case, whilst Magaliesoord
/ is
9
is monitored by psychiatrists and cli-nical psychologists and they have group
therapies on the go, they have detoxifi-cation units,
which they do not have in
the prison setting.
What would be the disadvantage of the accused receiving his treatment in
prison?-- Solely because of the milieu within the prison
setting and the
treatment process is geared towards people who have a chronic history of
irresponsible
behaviour the whole atmosphere
is not geared or directed
towards drug-
taking or the alleviation of drug depen-
dency but to the
changing of behaviour
per
se. Now, within the setting at
Magalies-
oord for instance, where we have alcoholics
and drug dependents,
we have a situation
there, all the people have one thing
in common, they
are all people who have
been involved with habit-forming drugs.
It is a
sort of Alcoholics Anonymous
situation, which is more conducive to
the
rehabilitation of these people and
this is a more specialised form of
therapy
which is not available in the prison
setting.
There are no facilities for drug dependency
per se
in the prison
setting. There
are a few clinical psychologists and
social workers but the
therapy is on
a individual basis and it is definitely
not directed towards
drug dependency."
/ The
10
The magistrate stated that he accepted Mr Carnie's evidence. In sentencing
the appellant he took into account the fact that the appellant
was a first
offender, and that he had a drug dependency with an underlying personality
problem. He regarded the fact that the appellant
had pleaded guilty as
indicative of remorse on his part.
The following extracts from the
magistrate's reasons for sentence indicate why he decided to impose a prison
sentence (the lettering
is mine):
(a) ".... the Court must bear in mind that
in all the counts except count No 4, you did not only steal drugs, but in four
of the counts you stole apart from drugs large amounts
of cash as well. So this
is not merely and purely a case of a person break-ing into pharmacies to steal
only the drugs that he needed."
(b) " the Court
must bear in mind as of
late there are quite a large amount of simi-
/
lar
11
lar cases, where drug addicts have broken into pharmacies and other shops and
the Court therefore today does not only have to impose
a sentence which will
punish you, but must to some extent also serve as a deterrent to others."
(c)
"The Court also cannot only
bear in mind your personal circumstances, because that is but one leg of the
triad which the Court has
to consider. The other aspects are, the seriousness of
the crimes to which the Court has already related, as well as the interests
of
society. If you are given a suspended sentence today, or if you are merely
referred to a rehabilitation centre to get rid of your
own problems, the Court
cannot keep in mind the interests of society, because that will only look after
your needs and not the interests
of society as well."
(d)
"It is clear from the evidence of Mr Carnie that there are to some
extent professional facilities to help you in prison, although
they may not
measure up the same standard as those offered in other
places."
/ I turn
12
I turn now to deal with each of the above reasons.
Ad (a) above
:
The appellant was a first offender. The evidence of
Mr Carnie indicated that he is not a criminal type. There is also a statement
by
Mr Carnie to the effect that "the only problems that he (the appellant) has had
have been related to his drug abuse". It is therefore
highly probable that the
real reason for breaking into the pharmacies was for the drugs and that the
money was taken in order to
enable the appellant to obtain drugs. The fact that
the appellant did not give evi-dence does not detract from this probability.
It
follows that the magistrate placed undue emphasis on the fact that money was
also taken.
Ad (b) above:
Where a crime is prevalent a severe sentence
/
may
13
may be justified in order that it may act as a déterrent to others.
This does not mean that where the personal circumstances
of an accused and his
reasons for committing the crime are such that in his case a prison sentence may
not be appropriate, he should
nevertheless be sent to gaol.
Ad (c) above:
It seems to me, on the particular facts of this case
that it would be not only in the interests of the appellant but also in the
interests
of society to seek to rehabilitate the appellant rather than to send
him to gaol in which event he will not, on Mr Carnie's evidence,
be cured of his
dependence on and need for drugs. Moreover, it was not suggested by Mr Carnie
that he "merely" be sent to a rehabilitation
centre or given a suspended
sentence without enforced treatment. What was suggested was a suspended sentence
coupled with an order
that he be sent to a rehabilitation centre.
/
Ad (d) above
14
(Ad (d) above
:
This statement by the Magistrate overlooks the fact that Mr Carnie's evidence
relates to this particular appel-lant; that there was
no doubt in his mind that
the pro-fessional facilities would not achieve the desired result, viz, of
curing the appellant of his
drug dependency.
The powers of an appeal court to
interfere on appeal with a sentence imposed by a lower court are cir-cumscribed.
The Magistrate misdirected
himself in the respects set out above thereby leaving
this Court at large to impose what it considers would have been an appropriate
,
sentence.
In addition to what has been set out above, Mr Carnie also testified that the
appellant "is a person who does not rationalise as I
found in most other
people's cases. He does not rationalise his use of drug-taking". He further
testified that the appellant not
only showed remorse but also realised that his
drug-taking was self-destructive and that he was desirous of "undergoing
/ intensive
15
intensive psycho-therapy as well as detoxification for his drug dependency".
If one has regard to these fac-tors and the fact that
he was a first offender
and his comparative youth, an appropriate sentence would have been one designed
to keep the appellant out
of prison as far as possible and to ensure that he
receives the necessary treatment for his effective rehabilitation.
Having regard to what has been said above I am of the view that this is the
very type of case in which the magistrate having had the
benefit of and having
accepted Mr Carnie's evidence (see
S v Mitchell
1982 (3) SA 72
(T)
),should have invoked sec. 296 of Act No 51 of 1971. A difficulty which faces
this Court is that the appellant has already been
in prison for two years
serving the sentence imposed by the magis-trate. We are informed that he has not
received treatment during
that period.
/ it
16
It follows from the above that the sentence imposed by the magistrate
must be set aside and an order made which will do proper justice
to the
appellant. This will be achieved by the order made hereunder.
The appeal succeeds and the following order
is
made:
A. The sentences imposed upon the appellant by the magistrate in respect of
counts 1 to 5 are altered to read:
1 (a) The accused is sentenced to
1 year's imprisonment on each of the counts 1 to 5.
(b) Such sentences are suspended for a period of five years, on condition,
firstly, that the accused is not convicted of any offence
of which the intention
to steal or theft is an element, committed during the period of suspension, and,
secondly, that the accused
adheres to all the requirements of the rehabilitation
centre referred to in para. 2 below.
/2 In
17
2 In additipn to the above it is
ordered that the accused be
detained at a rehabilitation centre established under the provisions of Act 41
of 1971.
3 The accused is to be detained in custody pending his removal to such a
rehabilitation centre.
B. In addition to the above order this
Court orders that if the suspended
prison sentences are at any time
brought into force it is to be borne
in mind that the accused has already
served two years imprisonment which
period is then to be taken into
account.
O. GALGUT.
JOUBERT JA) SMALBERGER JA) concur.