S v Jimenez (73/2002) [2003] ZASCA 2; [2003] 1 All SA 535 (SCA) (21 February 2003)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2003
>>
[2003] ZASCA 2
|

|

S v Jimenez (73/2002) [2003] ZASCA 2; [2003] 1 All SA 535 (SCA); 2003 (1) SACR 507 (SCA) (21 February 2003)

THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Reportable
CASE
NO: 73/2002
In the matter between :
ARIAS
JIMENEZ Appellant
and
THE
STATE Respondent
____________________________________________________________________
Coram: OLIVIER,
CAMERON JJA
et
LEWIS
AJA
Heard: 5
NOVEMBER 2002
Delivered:
21
FEBRUARY 2003
Summary: Dealing in drugs –
Sentence – Relevant factors
____________________________________________________________________
J
U D G M E N T
____________________________________________________________________
LEWIS
AJA:
[1] This
appeal is against a sentence of twelve years’ imprisonment imposed
on the appellant by the Johannesburg High Court (per
Andre Gautschi
and Kuny AJJ). That court itself dismissed an appeal against a
twelve-year sentence handed down by a district court,
but considered
that the lower court had misdirected itself in a material respect,
and that as an appeal court it was at large to
impose a new sentence.
The judgment of the court
a
quo
is reported (twice, for
no apparent reason)
sub nom
S v Arias
2002 (1) SACR 518
(W); and
sub
nom
S
v Jimenez
2002 (2) SACR 190
(W). This further appeal is brought with the leave of the court
below. References to the reported judgment are to
2002 (1) SACR 518.
[2] The court below was concerned principally with
the application of provisions of the
Criminal Law Amendment Act 105
of 1997
, requiring the imposition of minimum sentences in respect of
the commission of certain offences. The appellant had been charged
and
tried in a district court for contravening s 5(b) of the Drugs
and Drug-Trafficking Act 140 of 1992, in that he had brought into
the
Republic 60 ‘bullets’ of cocaine – that is, condoms filled with
cocaine -- that he had swallowed before boarding an aeroplane
to come
to South Africa. It was alleged that the weight of the cocaine was
653,4 grams and its value R210 000. The appellant had
pleaded guilty
to the charge, and in so doing it was assumed, apparently, both by
the trial court and the court below, that he had
admitted not only
the weight but also the value of the cocaine.
[3] The
magistrate, after convicting the appellant, sentenced him on the
basis that he was bound to impose a minimum sentence prescribed
under
the
Criminal Law Amendment Act. The
pertinent section (s 51(2)(a)
read with
Part II
of Schedule II) requires the imposition of a
sentence of at least 15 years’ imprisonment in the case of a first
offender found
guilty of dealing in a dependence producing drug the
value of which exceeds R50 000 unless there are substantial and
compelling circumstances
that warrant the imposition of a lesser
sentence
(s 51(3)(a)).
However,
s 51(2)
expressly states that ‘
a
regional court or a High Court
’
shall be bound to impose the prescribed sentences. There is in the
section no reference at all to the
district
magistrates’ courts. The
magistrate in this matter considered, however, that there was an
obvious lacuna in the Act; that it must
have been the intention of
the legislature that all courts trying offences of the same nature
should have the same sentencing powers
and obligations; that under
the Drugs and Drug Trafficking Act the jurisdiction of district
magistrates’ courts had already been
substantially increased, and
that it therefore made no sense that a district court could impose a
sentence of up to 25 years’ imprisonment
for an offence, whereas a
regional or a high court would be bound to impose a minimum sentence
of 15 years.
[4] On
appeal the high court considered that the magistrate had misdirected
himself in concluding that he was bound to impose a minimum
sentence.
The court considered that the legislation very clearly excluded
district courts from the ambit of
s 51
of the
Criminal Law Amendment
Act. I
shall not repeat the reasoning of the court, nor the
authorities adduced by Gautschi AJ in his judgment, since it is
reported. Suffice
it to say that I consider the judgment to be
correct in finding that
district
magistrates’ courts are not bound to impose the minimum sentences
prescribed. That the legislation results in anomalies, and probably
even injustice in that sentences imposed for the same offences may be
different, depending on the court in which the accused is charged
and
tried, is most unfortunate. But that does not permit a court to
interpret the section in such a way as to change the express
sphere
of its application. The anomalies should, however, be brought to the
attention of the appropriate authorities.
[5] Because
the court below found that the trial court had misdirected itself in
imposing a sentence in terms of the
Criminal Law Amendment Act it
considered that it was at large to impose a sentence itself. After a
careful examination of a number of factors that court also imposed
a
sentence of twelve years’ imprisonment. It is in fact against this
sentence that the appeal before us lies (
S
v Makhudu
, a decision of
this court, as yet unreported, 16 May 2002, Case No 208/01.)
[6] Counsel
for the appellant argued before us that, on a comparative assessment
of other sentences imposed for the commission of
similar offences,
the sentence was disturbingly inappropriate. Indeed, it is somewhat
higher than sentences imposed recently in similar
circumstances: see,
for example,
S v Hightower
1992 (1) SACR 420
(W);
S v
Randall
1995 (1) SACR 559
(C);
S v Opperman
1997 (1) SACR 285
(W);
S v
Homareda
1999 (2) SACR 319
(W); and
S v Mkhize
2000 (1) SACR 410
(W) where the sentences for trafficking in drugs
have ranged from an effective period of five to ten years’
imprisonment. Counsel
was hard pressed to argue that there was a
shocking disparity between these sentences and the sentence of 12
years imposed on the
appellant. Furthermore, while it may be useful
to have regard to sentences imposed in other similar cases, each
offender is different,
and the circumstances of each crime vary.
Other sentences imposed can never be regarded as anything more than
guides taken into account
together with other factors in the exercise
of the judicial discretion in sentencing.
[7] However,
even where a sentence does not seem shockingly inappropriate, a court
on appeal is entitled to interfere, or at least
to consider the
sentence afresh, if there has been a material misdirection in the
exercise of the sentencing discretion. (See for
example
S
v Petkar
1988 (3) SA 571
(A);
S v Siebert
1998 (1) SACR 554
(SCA).)
[8] This court raised with counsel the question
whether the court below did misdirect itself in an important respect
– by having
regard to the minimum sentences prescribed by the
legislature in the
Criminal Law Amendment Act. It
is clear that the
court below considered that the appellant was ‘in the position’
of one who has been convicted under that legislation.
Gautschi AJ
stated (at 523h—524a):
‘
In
the light of those cases [
Homareda
in particular], a fitting sentence may have been 10 years’
imprisonment. However, we must approach the imposition of sentence
conscious
that the Legislature has, by ordaining minimum sentences,
indicated that offenders in the position of the appellant are to be
dealt
with severely. The sentences imposed in the cases referred to
in
Homareda’s
case are useful as guidelines, but must be seen to be on the light
side in view of the message sent out by the Legislature in
prescribing
minimum sentences. The sentence in
Homareda’s
case was based on a value of cocaine which was less than half of that
in the case of the appellant.
‘Although there
are compelling mitigating circumstances, . . . the seriousness of the
crime, the fact that it is premeditated, its
prevalence and the need
for deterrence to combat the evils of drug dealing (as ordained by
the Legislature), must of necessity outweigh
the personal
circumstances of the appellant.’
[9] There
is no doubt that in the exercise of the sentencing discretion a court
should have regard to public policy and the public
interest. The
expression of policy in a statute – as in the
Criminal Law
Amendment Act
– is most certainly a factor that should be taken
into account. Indeed, that statute shows the disquiet experienced by
the public,
represented through the legislature, at the prevalence of
certain offences and their effect. The imposition of minimum
sentences
is a clear indication of what is perceived to be in the
public interest. It is trite that the public interest, or the
interest of
the community as it is often put, is a factor that should
be considered when the sentencing discretion is exercised. In an
oft-cited
dictum Rumpff JA said in
S
v Zinn
1969 (2) SA 537
(A)
at 540G—H that what must be considered ‘is the triad consisting
of the crime, the offender and the interests of society’.
The
provisions of the Act inform courts of the attitude of society to
crimes of a particular nature, specified in a schedule to the
Act,
which includes drug trafficking where the value of the drug exceeds a
certain amount. Part II to Schedule II specifies a contravention
of
certain provisions of the Drugs and Drug Trafficking Act where the
value of the ‘dependence-producing substance’ exceeds R50
000
(the offence in respect of which the appellant was convicted), or
where it exceeds R10 000 and the offence was committed by a
group of
persons ‘acting in the execution or furtherance of a common purpose
or conspiracy’.
[10] While,
however, it may be appropriate for a judicial officer to attach
significant weight to the existence of prescribed minimum
sentences
even where he or she is not bound by the provisions of the Act, as is
the case here, it is proper to do so only where the
offence at issue
is one that would be governed by the provisions of the statute if the
court had jurisdiction. In this case there
was no evidence adduced
before conviction as to the value of the cocaine that had been
smuggled into the country by the appellant.
The absence of such
evidence was a function no doubt of the appellant’s plea of guilty
to the charge. After the appellant was convicted
the magistrate
merely confirmed with his legal representative that the appellant did
not dispute the value of the cocaine as being
R210 000.
[11] This
court has recently held (
S v
Legoa
2003 (1) SACR 13
(SCA)) that the
Criminal Law Amendment Act ‘requires
that an
accused must have been “convicted of an offence referred to” in
the Schedule [II]’, namely dealing in a dangerous
dependence-producing
substance ‘if it is proved that . . . the
value of the dependence-producing substance is more than R50 000’
(para 13). Further,
held the court, a court acquires an ‘enhanced
penal jurisdiction’ ‘only if the evidence regarding all the
elements of the form
of the scheduled offence is led before verdict
on guilt or innocence . . . ‘ (para 18). See also
S
v Nziyane
2000 (1) SACR 605
(T), where the court came to the same conclusion in so far as the
offence of being in possession of a semi-automatic weapon was
concerned:
the state must prove the nature of the weapon before
conviction in order for the minimum sentence to be imposed under the
Act.
[12] Although
the appellant pleaded guilty to the charge of dealing in cocaine
described as weighing 653.4 grams, there was in fact
no proof of the
weight of the drug, and no admission or proof as to its quality or
its value before conviction or even before sentence.
Nor was the
appellant ‘convicted’ of an offence covered by the minimum
sentence legislation. The procedure the trial court adopted,
in
eliciting an admission as to value after conviction, meant that the
value in issue did not form part of the offence in respect
of which
the appellant was convicted. It follows that, even if the appellant
had been tried in a regional or high court, the value
of the cocaine
had not been proved by the state before conviction. Hence, all the
elements of the scheduled offence would not have
been proved and
those courts would accordingly themselves not have had jurisdiction
to impose the minimum sentence. In the circumstances,
the minimum
sentencing legislation should not have been accorded undue weight in
determining the appropriateness of the sentence
in this case. Indeed,
the court below was wrong in concluding that the appellant was ‘in
the position’ of one who had been convicted
under that legislation.
[13] Was
this misdirection material, such as to justify interference by this
Court? The prescribed minimum sentences were clearly
regarded by the
court below as only one of several factors to be taken into account
in imposing sentence. A number of other issues
were carefully
considered. These included the mitigating factors that the appellant
is a first offender; was only 24 years of age
at the time when the
offence was committed; and has a wife and young daughter living in
Colombia, of which he is a citizen. He has
no family in South Africa,
and therefore no familial support while he serves a sentence of
imprisonment. He submitted in a statement
to the trial court that the
reason for bringing drugs into the country was to earn money to pay
for a prosthesis for his brother
who had been severely injured
through being electrocuted in an accident. The truth of this
statement was not challenged since no
oral evidence was led. Nor,
however, was it placed in dispute. It was also argued that the
appellant had shown remorse by pleading
guilty. The court below
correctly accorded little if any weight to this factor given that in
effect the appellant had been caught
in such a way that he had had no
choice but to plead guilty. Similarly, the argument that he had
cooperated with the police was not
accepted since the extent of the
cooperation was not demonstrated in any way.
[14] Thus,
although the court below was incorrect in assuming that the appellant
was convicted of an offence described in the minimum
sentencing
legislation, that assumption was not accorded undue significance. The
court was fully aware that it was not bound by that
legislation;
indeed that was the major thrust of its finding. And it was entitled
to take general account of the policy embodied
in that legislation,
and did so properly. I find, accordingly, that there was no material
misdirection on the part of the court a
quo in having regard to the
existence of the minimum sentence legislation.
[15] The
crime committed by the appellant is very serious indeed. Drug
trafficking inevitably results in grave harm to others and
courts
should ensure that the sentences they pass have the requisite
deterrent effect. The appellant’s conduct thus warrants a
lengthy
sentence of imprisonment even though he is a first offender in a
foreign country without any familial support.
[16] A
consideration of sentences recently passed for drug trafficking in
similar instances is, as I have said, of assistance only
in so far as
the sentences indicate a general trend and hence a measure of
consistency. Because the imposition of sentence (except
in so far as
the legislature prescribes sentences) is a matter of judicial
discretion, requiring a consideration of factors that
are peculiar to
each case, the appropriate sentence for the appellant is one that
takes into account his personal position as well
as the interests of
society.
[17] In
my view, a sentence of imprisonment somewhat shorter than that
imposed might have been more appropriate. The crime is grave
and its
consequences serious, but the mitigating factors presented are
significant. It cannot be said, however, that the sentence
of 12
years’ imprisonment imposed by the court below was disturbingly
inappropriate, or that the court did not exercise its discretion
properly. There is accordingly no basis on which to interfere with
the sentence passed.
[18] The
appeal is accordingly dismissed.
[19] The registrar is requested to bring this
judgment to the attention of the Minister of Justice so that the
anomalies that arise
where an accused may be charged and tried in a
district, regional or high court, only the latter two courts being
bound to impose
minimum sentences, can be considered.
C
H Lewis
Judge
of Appeal
Cameron
JA concurs
OLIVIER JA
[1]
I
have read the judgment prepared by my colleague Lewis AJA. Although
we agree on the outcome of the appeal, I wish to set out my
approach
to the matter.
[2]
The
appellant was charged in the district court of Kempton Park with
contravening s 5 (b) read with
ss 1
,
13
,
17
,
18
,
20
,
21
and
25
of the
Drugs and Drug Trafficking Act 140 of 1992
, as amended, and with
s 51
the Criminal Law Amendment of Act 105 of 1997, in that upon or about
1 August 1999 and at or near Johannesburg International Airport
in
the district of Kempton Park the accused did unlawfully deal in a
dangerous dependence-producing substance, to wit 653,4 grams
cocaine,
being a substance derived from coca leaves and thus listed in part II
of schedule 2 of Act 140 of 1992, by swallowing 60
bullets,
ie
,
condoms containing cocaine, and bringing it into the RSA by aircraft.
[3]
At
the trial, the appellant pleaded guilty and his attorney, Mr
Mphahlele, submitted a written statement in which the appellant
admitted
to the material details as charged.
On
the strength of the appellant's plea of guilty and confession, he was
found guilty as charged.
[4]
Prior
to sentencing, the accused's representative and the prosecutor
addressed the court. The following dialogue between the court
and
Mr Mphahlele occurred:
'
Court
: Mr Mphahlele, the
state informs me that you do not dispute the value involved being
R210 000,00?
Mr Mphahlele
: That is
correct.
Court
So that is common
cause.'
[5]
In
sentencing the appellant, the magistrate accepted that he was a first
offender, youthful, a 23 year old Colombian citizen who is
married
with a four year old daughter and currently a student at a university
in Bogota. The magistrate also took into account
that the
appellant's remuneration for being a courier or 'mule' would be 5 000
US dollars (
ie
then
approximately R50 000,00). The magistrate also noted the
appellant's assertion - made through his attorney - that he had
intended using a portion of his remuneration to buy a prosthesis for
his brother who had lost a leg through an electrical accident.
[6]
The
magistrate was not convinced that the appellant had shown remorse,
and found that he had been uncooperative both towards the
court and
the police. Acting in accordance with
s 51
(2) of the
Criminal Law
Amendment Act 105 of 1997
and following the judgment in
S
v Homareda
1999 (2) SACR 319
(W)
the learned magistrate imposed a sentence of
12 years' imprisonment.
[7]
The
appellant appealed to the Johannesburg High Court against this
sentence. Andre Gautschi AJ summarised the magistrate's judgment
on
sentence as follows:
'The learned magistrate gave a
lengthy judgment on sentence in which he found that, despite sitting
as a district magistrate and not
as a regional or High Court, he was
obliged to impose a minimum sentence of 15 years' imprisonment unless
he could find compelling
and substantial circumstances which would
justify a lesser sentence. He then found that the ordinary sentence
for this type of
crime would be approximately 10 years' imprisonment.
This he found, following
S v Homareda
1999 2 SACR 319
W, to
be vastly different from the 15 years' minimum sentence imposed by
the legislature, and therefore found that substantial and
compelling
circumstances existed to justify the imposition of a lesser sentence.
He added "a bit more" than the sentence
imposed on
Homareda
(which was 10 years' imprisonment) to personalise the
sentence to the circumstances of the appellant and sentenced him in
the result
to 12 years' imprisonment. The appellant appeals only
against the sentence.'
[8]
The
learned judge (with whom Kuny AJ concurred) held that the magistrate
had misdirected himself in two respects, to wit
(a) that he was
bound to impose a minimum sentence of 15 years' imprisonment unless
there were compelling and substantial circumstances
which would
justify a lesser sentence. The court
a quo
found that the provisions of
s 51
(2) of the
Criminal Law Amendment
Act 105 of 1997
are not applicable to a district court and that the
magistrate was, therefore, not entitled to consider the imposition of
the minimum
sentence of 15 years laid down in that statute;
(b) that, in any
event, even if Act 105 of 1997 had been applicable, the magistrate
erred in his application of the concept of 'compelling
and
substantial circumstances.'
[9]
The
court
a quo
, having
found that the magistrate had erred, held that it was at large to
impose a fitting sentence. The court then summarised
the mitigating
circumstances. The court also rejected counsel's argument that the
appellant had shown remorse, or that he had co-operated
with the
police to a relevant degree. The court also had regard to previous
comparable cases and continued:
'I have had regard to the
sentences imposed in the cases to which we have been referred by Mr
Karam, which are the cases referred
to in
Homareda's
case at
327, and
Homareda's
case itself. In the light of those
cases, a fitting sentence may have been 10 years' imprisonment.
However, we must approach
the imposition of sentence conscious that
the legislature has, by ordaining minimum sentences, indicated that
offenders in the position
of the appellant are to be dealt with
severely. The sentences imposed in the cases referred to in
Homareda's
case are useful as guidelines, but must be seen to
be on the light side in view of the message sent out by the
legislature in prescribing
minimum sentences. The sentence in
Homareda's
case was based on a value of cocaine that was less
than half of that in the case of the appellant.
Although there are compelling
mitigating circumstances, which I have listed above, the seriousness
of the crime, the fact that it
was premeditated, its prevalence and
the need for deterrence to combat the evils of drug dealing (as
ordained by the legislature),
must of necessity outweigh the personal
circumstances of the appellant. In all the circumstances a sentence
of 12 years' imprisonment
imposed by the learned magistrate, is in my
view a fitting one and should be confirmed.'
[10]
The
present appeal lies against the sentence imposed by the court
a
quo
, and not against the magistrate's
judgment (see
Makhudu v The State
,
case no 208 / 01 of this Court, as yet unreported, judgment delivered
on 16 May 2002, para [3]).
[11]
The
judgment of the court
a quo
is
reported as
S v Arias
2002 (1) SACR 518
(W) as well as
S v Jimenez
2002 (2) SACR 190
(W). In the first-mentioned report, the court
a
quo
correctly in my view, held (at 519 j -
522 g) that the district court erred in finding that it was bound to
impose a minimum sentence
of 15 years' imprisonment unless there were
compelling and substantial circumstances which would justify a lesser
sentence. A district
court is not entitled to apply the minimum
sentence provisions now under consideration; the
Criminal Law
Amendment Act 105 of 1997
is clear and unambiguous in this respect.
[12]
The
problem with the judgment of the court
a quo
lies in that part quoted in [9] hereof, and in particular in the
reference to
S v Homareda
1999
(2) SACR 319
(W). The point is that the sentence in
Homareda
was based upon the application of the relevant minimum sentence
provisions. In general, it is not permissible to have regard,
without
the necessary caveats, qualifications and distinctions, to
sentences imposed on the strength of minimum sentence provisions in a
case where the minimum provisions are not applicable. The point of
departure in prescribing maximum and minimum sentences differs
substantially from that applicable to cases where no such provisions
are prescribed; and equating without the necessary caveats,
qualifications and distinctions the reasoning of the one with the
other will often not be valid. (See also the arguments in
S v Malgas
2001 (2) SA 1222
(SCA).) In this
sense, the court
a quo
can
be said to have erred and misdirected itself.
[13]
But
it is trite law that a mere misdirection is not by itself sufficient
to entitle a court of appeal to interfere with a sentence
imposed by
a lower court:
' ... it must be of such a
nature, degree, or seriousness that it shows, directly or
inferentially, that the Court did not exercise
its discretion at all
or exercised it improperly or unreasonably. Such a misdirection is
usually and conveniently termed one that
vitiates the Court's
decision on sentence. That is obviously the kind of misdirection
predicated in the last quoted
dictum
above:
[see
S v Fazzie and Others
1964 (4) SA 673
(AD) at 684 B - C]
one that the "dictates
of justice" clearly entitle the Appeal Court "to consider
the sentence afresh" '
.
(Per Trollip JA in
S
v Pillay
1997 (4) SA 531
(A) at 535 E - G.)
[14]
There
are strong indications that the misdirection in the present case by
the court
a quo
was
not material. The first is that the court
a
quo
did not exclusively, or even
substantially, rely on a comparison of the judgments premised on the
minimum sentence provisions. The
court properly took into account
all the aggravating and mitigating circumstances that courts usually
consider. It properly took
into account the weight of the cocaine
illegally smuggled into our country by the appellant. On that basis
alone the court
a quo
was
entitled to impose a sentence of 12 years' imprisonment. As a very
last remark the court
a quo
referred to
Homareda
.
That remark was not the basis of the sentence imposed.
[15]
From
a careful reading and study of the judgment of the court
a
quo
, I am also convinced that even if no
reference had been made to
Homareda
or any other previous cases, the court would have imposed, or would
have been correct to impose, a sentence of imprisonment for 12
years.
In other words, the reference to the sentence imposed in
Homareda
was not only merely one of the factors taken into account; it was
not even the first or conclusive one. I am unable to see how
it can
be said that the reference to
Homareda
is ' ... of such a nature, degree, or seriousness that it shows,
directly or inferentially, that the Court did not exercise its
discretion at all or exercised it improperly or unreasonably' or that
it ' ... vitiates the Court's decision sentence.' (See
S
v Pillay
quoted above; see also
S
v Kibido
1998 (2) SA 213
(SCA) at 216 g to
j.)
[16]
The
second indication that the misdirection was not material is that the
court
a quo
was well
aware that the minimum sentence provisions were not applicable in the
present case. In referring to
Homareda
,
and to the fact that in the present case the minimum sentence
provisions were not applicable, the court
a
quo
illustrated that it was aware of the
different considerations applicable to
Homareda
and the present case.
[17]
It
is a salutary rule that this Court will not readily differ from a
court
a quo
in its
assessment either of the factors to be regarded to or of the value to
be attached to them.
I
also associate myself with what Kriegler J said in
Key
v Attorney-General, Cape Provincial Division, and Another
[1996] ZACC 25
;
1996
(4) SA 187
(CC) at 195 in para [13]:
'In any democratic criminal
justice system there is a tension between, on the one hand, the
public interest in bringing criminals
to book and, on the other, the
equally great public interest in ensuring that justice is manifestly
done to all, even those suspected
of conduct which would put them
beyond the pale. To be sure, a prominent feature of that tension is
the universal and unceasing
endeavour by international human rights
bodies, enlightened legislatures and courts to prevent or curtail
excessive zeal by State
agencies in the prevention, investigation or
prosecution of crime. But none of that means sympathy for crime and
its perpetrators.
Nor does it mean a predilection for technical
niceties and ingenious legal stratagems. What the Constitution
demands is that
the accused be given a fair trial. Ultimately, as
was held in
Ferreira v Levin
, fairness is an issue which has
to be decided upon the facts of each case, and the trial Judge is the
person best placed to take
that decision. At times fairness might
require that evidence unconstitutionally obtained be excluded. But
there will also be
times when fairness will require that evidence,
albeit obtained unconstitutionally, nevertheless be admitted.'
Consequently,
I am satisfied that although there was, technically speaking, a
misdirection on the part of the court
a quo
,
it did not constitute a material misdirection.
[18]
The
ultimate question is whether the sentence of 12 years' imprisonment
imposed by the court
a quo
was a fair and reasonable one. (See
S v
Peters
1987 (3) SA 717
(A) at 727 F - H;
S
v L
1998 (1) SACR 463
(SCA) at 468 f to j.)
I think it was.
[19]
For
a considerable time our courts have viewed dealing in 'hard' drugs,
such as heroin and cocaine, in a very serious light. In
S
v Gibson
1974 (4) SA 478
(A) at 481 H this
court, per Holmes JA, welcomed the effort of the Legislature
' ... to stamp out the growing
social evils of the abuse of drugs as a wise and laudable one. No
doubt, too, that, for example,
a supplier for gain may in general be
regarded as a vicious person who needs to be put down, for in the
drug traffic he is an indispensable
evil link in the chain leading to
the consumer.'
[20]
In
S v Hightower
1992 (1)
SACR 420
(W), a case concerned with dealing in cocaine, the
Witwatersrand Local Division of the Supreme Court quoted with
approval (per MacArthur
J; Mahomed J concurring) what Schreiner JA
had said in
R v Karg
1961
(1) SA 231
(A) at 236 B - C,
viz
:
' It is not wrong that the
natural indignation of interested persons and of the community at
large should receive some recognition
in the sentences that Courts
impose, and it is not irrelevant to bear in mind that if sentences
for serious crimes are too lenient,
the administration of justice may
fall into disrepute and injured persons may incline to take the law
into their own hands.'
MacArthur
J, at 422 j, continued:
'The deterrent aspect, however,
remains as important as ever. I have already mentioned this aspect
briefly and I would add that
anyone who wishes to deal in a dangerous
dependence-producing drug like cocaine must be made to realise that
the courts will not
be sympathetic, but will exact a heavy price upon
anyone who is found guilty of that offence.'
[21]
There
is ever-increasing smuggling of hard drugs into our country,
described fully by Steyn AJ in
S v Randall
1995 (1) SACR 559
(C) at 566 g - i. The learned judge continued (at
566 i - 567 a) with the following remarks, with which I fully
associate myself:
'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.'
[22]
The
learned judge also emphasised (at 567 c - d) that in a multi-pronged
strategy combating the importation and distribution of dangerous
drugs,
' ... the courts have their role
to play in imposing sentences which speak clearly of society's
determination to fight this danger
with all the weapons at its
disposal.'
[23]
It
was also laid down by Steyn AJ (at 567 f- h) that the personal
circumstances of couriers of hard drugs, mitigating though they
may
be, are outweighed by the public need for protection through the
imposition of deterrent sentences. (See also
S
v Sebata
1994 (2) SACR 319
(C) at 322 j
et
seq
.)
[24]
In
Sebata
,
supra
,
Steyn AJ referred with approval (at 323 g
et
seq
) to the judgment of Lord Lane CJ and
Talbot J in
R v Aramah
1983
Crim LR 271
where the learned judges remarked on the vice of dealing
in hard drugs:
' ... first of all, they are easy
to handle. Small parcels can be made up into huge numbers of doses.
Secondly, the profits are
so enormous that they attract the worst
type of criminal. Many of such criminals may think, and indeed do
think, that it is less
dangerous and more profitable to traffic in
heroin or morphine than it is to rob a bank. It does not require
much imagination to
realise the consequential evils of corruption and
bribery which the huge profits are likely to produce. ...... this
may be a fruitful
source of violence and internecine strife.
Fourthly, the heroin taker, once addicted (and it takes very little
experimentation
with the drug to produce addiction), has to obtain
supplies of the drug to satisfy the terrible craving. It may take
anything up
to hundreds of pounds a week to buy enough heroin to
satisfy the craving, depending upon the degree of addiction of the
person involved.
The only way, it is obvious, in which sums of this
order can be obtained is by resorting to crime. This in its turn
may be trafficking
in the drug itself and disseminating accordingly
its use still further.
Fifthly, and last, and we have
purposely left it for the last, because it is the most horrifying
aspect, comes the degradation and
suffering and frequently the death
which the drug brings to the addict. It is not difficult to
understand why in some parts of
the world traffickers in heroin in
any substantial quantity are sentenced to death and executed.
Consequently anything which the
courts of this country can do by way of deterrent sentences on those
found guilty of crimes involving
these class "A" drugs
should be done.'
What
the learned judges said of heroin and morphine, applies equally to
cocaine (see
S v Sebata
,
supra
, at 325 1-b).
[25]
To
the list of evils enumerated above must be added the devastating
effect the addiction to hard drugs has on the family, relations,
employees and friends of the user. Families fall apart, are
bankrupted and drained emotionally by the experience of seeing a
family
member, usually a youth, becoming addicted and changing from a
healthy, lovely child to a human wreck. No wonder that in several
countries and cultures, the smuggling of hard drugs is punishable by
death. (For details, see D P van der Merwe,
Sentencing
,
paragraph 12 - 5.)
[26]
The
aversion with which trafficking in hard drugs, especially the
smuggling thereof into our country, is viewed by the courts, is
illustrated by repeated statements to this effect, and by the
imposition of long terms of imprisonment,
eg
S v Opperman
1997 (1)
SACR 285
(W) at 288 i
et seq
;
S v Homareda
,
supra
,
at 326 and
S v Tshabalala
,
1999 (1) SACR 412
(C) at 427 a;
S v Howe
1989 (2) SA 473
(W) at 478 E - G).
[27]
In
spite of all these statements and despite heavy sentences imposed by
the courts the trafficking in drugs and the employment of
couriers to
smuggle hard drugs into our country has not abated or diminished.
On the contrary, only the most naive would not be
aware of the
ever-increasing stream of drugs illegally coming into our country via
international ports and airports. We are becoming
known as a haven
for dealers in drugs and our youth, students and schoolchildren are
singled out as soft targets. Against this
background, the
legislature has over the years steadily increased the punishment to
be meted out to dealers in drugs, including couriers
from foreign
countries. In 1971 the Abuse of Dependence-Producing Substances and
Rehabilitation Centres Act, 41 of 1971, was enacted.
For illegal
dealing in prohibited drugs, the discretion of the courts was taken
away: first offenders had to be given a minimum
sentence of five
years imprisonment; second and subsequent offenders had to be given
a minimum of ten years.
[28]
In
1986 the courts were given back their discretion in sentencing.
(See the Abuse of Dependence-Producing Substances and Rehabilitation
Centres Amendment Act, 101 of 1986.) In 1990, however, by the Abuse
of Dependence-Producing Substances and Rehabilitation Centres
Amendment Act 78 of 1990, the maximum sentences previously prescribed
were raised substantially.
[29]
All
previous statutory provisions dealing with drug offences were
repealed in 1992 by the
Drugs and Drug Trafficking Act 140 of 1992
.
Section 17
prescribes maximum sentences. In the case of dealing in
any dangerous dependence-producing substance or any undesirable
dependence-producing
substance, any court, including a magistrates'
court, may impose a sentence of imprisonment for a period not
exceeding 25 years,
or both such imprisonment and such fine as the
court may deem fit to impose
(ss 5
(b),
17
(e) and
64
).
[30]
Finally,
s 51
of the
Criminal Law Amendment Act 105 of 1997
imposed minimum
sentences for certain serious offences including
inter
alia
, dealing in cocaine. The section
provides that a regional court or High Court that has convicted a
person of such offence may sentence
the person, in the case of
(i) a
first offender, to imprisonment for a period not less than 15 years;
(ii) a
second offender, to imprisonment for a period not less than 20 years;
and
(iii) a
third or subsequent offender, to imprisonment for a period not less
than 25 years.
The
maximum sentences imposed by the 1992 Act remain intact.
[31]
In
my view it is proper for a court considering sentence to have regard
to the legislative policy as expressed in legislation dealing
with
sentencing. If this were not so, legal and social confusion would
ensue, leading to a conflict between the legislator and
the courts.
In imposing sentences for drug-related crimes, courts must take
cognisance of the persistent policy of the legislature
that these
crimes must be viewed in a most serious light and heavy sentences
imposed. (See also
S v Howe
,
supra
, at 478 E - G;
S v Gibson
1974 (4) SA
478
(A) at 481 H per Holmes JA.)
[32]
In
short, this is not an area where 'maudlin sympathy' (the expression
used by Holmes JA in
S v Rabie
1975 (4) SA 855
(A) at 861 C - D) should be allowed to override
common-sense and social and legislative policy. Nor should judges
be swayed by
misplaced pity (
intempestiva
misericordia
- an expression used by Van der
Linden
Supplement
,
quoted by Joubert AJ in
S v Opperman
1997 (1) SACR 285
(W) at 292; see also
S v
Zinn
1969 (2) SA 537
(A) at 541).
[33]
The
court
a quo
correctly
found that the appellant had shown no remorse. He also did not
testify under oath as to the alleged remorse. In
S
v Seegers
1970 (2) SA 506
(A) at 511 G - H,
Rumpff JA made a remark which has been followed in numerous cases and
is part of daily practice in the criminal
courts:
'Remorse, as an indication that
the offence will not be committed again, is obviously an important
consideration, in suitable cases,
when the deterrent effect of a
sentence on the accused is adjudged. But, in order to be a valid
consideration, the penitence must
be sincere and the accused must
take the Court fully into his confidence. Unless that happens the
genuineness of contrition alleged
to exist cannot be determined.'
[34]
I
am also not impressed by the argument that it will be hard for the
appellant to be incarcerated for a long period in a foreign country.

That will happen because the appellant chose our country for the
commission of a vile crime. In
S v Lister
1993 (2) SACR 228
(A) this Court, per Nienaber JA said at 232 g - h:
'To focus on the well-being of
the accused at the expense of the other aims of sentencing, such as
the interests of the community,
is to distort the process and to
produce, in all likelihood, a warped sentence.'
[35]
Even
if one accepts the alleged personal circumstances of the appellant -
he chose not to confirm them under oath - they are not
out of the
ordinary and certainly do not deserve special, more lenient
treatment.
[36]
This
Court must also be sensitive to the message it sends out to the
legislator, the public and drug dealers here and overseas.
Our
country is fast becoming known as a profitable and easily accessible
market for drug dealers and drug smugglers. Because of
the
relatively light sentences our courts impose for these offences,
compared to many other countries and because of the particularly
lenient parole conditions prevailing here at present, illegal drug
trafficking has obviously become a profitable business. The
appellant was prepared to take the risk of a confrontation with our
criminal justice system in return for a remuneration of U$ 5
000.
The sentences imposed by the courts must make it clear to intended
drug couriers that the game is not worth the candle.
[37]
Because
the appellant chose not to testify under oath, one does not know
whether he intended to sell the cocaine himself or to deliver
it to a
pre-arranged dealer here. He did not take the court into his
confidence, so that the recipient, if there were one, could
be
identified and brought to justice. In my view this constitutes an
aggravating circumstance. (See
S v Sebata
,
supra
, at 325 3e - g;
S v Opperman
,
supra;
R v Aramah
,
supra
; S
v Randall
,
supra
,
at 566 e - g;
S v Smith en Andere
1978
(3) SA 749
(A) at 758 F - G.)
[38]
Finally,
in my view, if one has regard to appropriate sentences imposed by our
courts (
ie
where the
minimum sentence provisions are not applicable) a sentence of 12
years' imprisonment is not improper or unreasonable, and
by no means
disturbingly inappropriate. One may compare the judgment of this
Court in
S v Morebudi
1999 (2) SACR 664
(SCA). In that case, the appellant and a
co-accused were convicted in the regional court, Pretoria, of dealing
in 1 433 kg of dagga
in contravention s 5 (b) of the 1992 Act - the
same provisions under which the present appellant was prosecuted.
The appellant
in that case was sentenced to 14 years' imprisonment
and the co-accused to 7 years. The appellant's vehicle, used in
conveying
the dagga, and valued at R 63 000,00, was forfeited to the
State. The magistrate took into account a previous conviction of
the
appellant, 20 years earlier. It had lapsed, but this Court held
that it could be taken into account for the limited purpose of
showing that the crime had been committed in spite of a previous
warning. This does not distinguish
Morebudi
from the appeal now under consideration, because it is clear that the
present appellant knew that he was acting illegally and was
aware of
the seriousness of the offence in this country.
Also
in
Morebudi
the
magistrate had found that the appellant was a 'Mafia-type organiser
of a large network of dealers'. In the present case the
appellant
cannot be said to be the organiser of a large network of dealers, but
clearly he was a willing participant in smuggling
cocaine. In this
regard this Court in
Morebudi
held that whether the appellant was a one-man dealer or formed part
of an 'omvangryke smokkelaarsnetwerk' made little difference,
regard
being had to the quantity of dagga involved. In the present case
the crime was undoubtedly at least as serious and suggestive
of
previous planning and execution as that under consideration in
Morebudi
.
[39]
In
Morebudi
, the accused
was 35 years old, and the father of two children. The sentence of
14 years' imprisonment and the forfeiture of the
vehicle was
confirmed by this Court.
[40]
Counsel
for the appellant in the present case contended for a sentence of
imprisonment for eight to ten years. Such a sentence
would, in my
view, be unrealistically lenient and contrary to present policy and
public interest. It would be totally inadequate
and disturbingly
inappropriate.
[41]
In
the result, the sentence of 12 years' imprisonment imposed by the
court
a quo
is
confirmed and the appeal is dismissed.
P
J J OLIVIER JA