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[1993] ZASCA 157
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S v Williams (559/92) [1993] ZASCA 157 (29 September 1993)
Case no 559/92 /mb
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
ROBERT WILLIAMS
APPELLANT
and
THE STATE
RESPONDENT
CORAM
: KUMLEBEN, EKSTEEN et NIENABER JJA
HEARD
: 23 SEPTEMBER 1993
DELIVERED
29 SEPTEMBER 1993
JUDGMENT
KUMLEBEN JA
/...
2
The appellant, on his plea of guilty, was
convicted in the magistrate's court of illicit possession of 17 "pills" (weight
undisclosed)
of dagga in contravention of s 2(b) of Act 41 of 1971. In the light
of his previous convictions for this offence, and a more serious
one for dealing
in dagga, he was sentenced to five years imprisonment. His appeal to the Cape
Provincial Division against sentence
failed but he was granted leave to
prosecute this further appeal.
In dismissing the appeal the court a
quo
(Tebbutt and Scott JJ)
referred to an earlier decision of that Division, also on appeal, relating to
the sentencing of dagga offenders:
S v Johnson
1980(3) SA 188(C) . In
that case the accused had received a sentence of 4 years imprisonment for being
in unlawful possession of an
insignificant amount (0,875 gr) of dagga. The
offence was committed
3
whilst the accused was in prison
serving a sentence
of 5 years for dealing in dagga. He had a host
of
previous convictions for unlawful possession of
and
dealing in dagga and for certain other common law
crimes. For the
seven contraventions of Act 41 of
1971 and its predecessor, Act 13
of 1928, he was
sentenced in aggregate to 15 years, of which
in
respect of one conviction 2 1/2 years were
suspended.
On appeal the sentence was reduced to one of 2
years
imprisonment. In the course of the judgment
the
court commented adversely on the wide discrepancy
in
the sentences imposed in the lower courts for
dagga
offences. It gave illustrations of what
it
referred to as radical differences evidenced by
cases
submitted for automatic review. These led the
court
to observe that:
"Alhoewel strakke eenvormigheid met betrekking tot vonnisse in hierdie
soort gevalle af te keur is, is dit egter ook onwenslik dat
vonnisse.
4
selfs met inagneming van besonderse plaaslike omstandighede of faktore,
in andersins aanverwante sake so radikaal verskillend moet
wees.
Na bespreking van hierdie ongewenste toedrag van sake was die Regters van
hierdie Afdeling dit eens dat vonnisse van meer as twee
jaar effektiewe
gevangenisstraf selfs waar die oortreding in die gevangenis gepleeg is en waar
die beskuldigde vorige veroordelings
vir besit van of handeldryf in dagga net,
slegs in baie uitsonderlike gevalle opgele behoort te word."
(195C-D).
The judgment of the court a
quo
referring
to the above said:
"Hierdie sogenaamde beleid kan egter nie as die wet van die Mede en die
Perse beskou word nie. Dit beteken seer sekerlik nie dat in
alle gevalle waar 'n
daggabesitter twee of meer vorige veroordelings vir dergelike oortredings op sy
kerfstok net, nie meer as twee
jaar gevangenisstraf sal opgele word nie. As
gereelde daggagebruikers onder daardie indruk deur die uitspraak in
JOHNSON
se saak gebring is, sal dit myns insiens heeltemal verkeerd
wees."
And in granting leave to appeal the court
reverted to
Johnson
's case, remarking that:
5
"Hierdie hof het tot die gevolgtrekking gekom dat dit nie in alle gevalle so
is dat maar net twee jaar gevangenisstraf opgele kan
word nie, en dat in gepaste
gevalle meer as twee jaar gevangenisstraf opgele mag word. Dit sal derhalwe
waardeer word dat hier twee
uiteenlopende uitsprake in die verband
is."
If one is to conclude from what was said by the
court a
quo
that we are impliedly asked to resolve what is seen to be a
conflict between two courts of equal status, no need to do so in fact
arises.
Sentencing is pre-eminently a question of discretion having regard to the triad
of considerations which are too well-known
to require repetition. They are to be
applied to the facts of each particular case in deciding whether imprisonment is
the only appropriate
sentence and, if so, what the period ought to be. The
stipulation of an arbitrary period of imprisonment as a maximum with the
inherently
imprecise qualification of "exceptional
6 circumstances"
cannot in my view facilitate this task. Thus, even if one accepts that in 1980
when the
Johnson
appeal was heard the prevailing local situation
warranted such an observation or guideline, this court ought not now to endorse
it.
However, leave to appeal was also granted on the additional, and
independent, ground that there was a reasonable prospect of this
court altering
or reducing the sentence. Thus the critical question for determination is
whether the trial court exercised a proper
discretion in sentencing the
appellant to serve 5 years imprisonment.
The appellant's chronicle of previous convictions makes lamentable
reading. Over a period of some thirty years as from about nineteen
years of age
(if his age reflected in the charge sheet can be relied upon) he had been
convicted six times for being in possession
of, and once for dealing
in,
7 dagga before this most recent offence was committed. The
sentences imposed, after a small fine for his first contravention, were
2 years
imprisonment in 1963 for possession for the purposes of sale; 18 months
imprisonment in 1976 for possession; and 36 months
in 1978 for dealing, half of
which period was suspended. In 1986 for being in possession of 40 gr a sentence
of 5 years imprisonment
was imposed. The sentence was set aside on review and,
after remittal to the trial court, the appellant was referred to a
rehabilitation
centre. Despite the treatment he must have received there, during
1988 he was again convicted for possession of 4 gr for which he
was sent to
prison for one year. He was unconditionally released in March 1989 and in
January 1990, some 10 months later, he was
convicted of the present
offence.
Up until the time of conviction the
8
appellant was represented by an attorney. He handed in on behalf of the
appellant a written statement in terms of
s 112(1)(b)
of the
Criminal Procedure
Act 51 of 1977
in which the appellant said that he had possessed the dagga for
his own use. After his conviction the appellant, now unrepresented,
elected not
to adduce evidence in mitigation of sentence. What did take place is thus
recorded:
"Beskdeel hof mee dat hy nie van voornemens is om dienste van ander
prokureur te verkry nie.
Erken vorige veroordelings -
SAP 69.
Ter versagting: Regte verduidelik: Verkies nie te getuig of getuies te
roep nie.
Besk. se: Ek vra 'n boete.
Hof: Getroud - het 2 skoolgaande kinders. Verdien R600,00 per maand. Vrou
werk nie.
V. Het u problems met dagga?
A. Nee - Ek is nie verslaaf aan dagga nie.
V. Hoe lank was u in rehabilitasiesentrum.
A. Ek was net 6 maande daar - toe ontslaan
hulle my en se ek het nie daggaprobleme nie.
9
SA wys op vorige veroordelings. Vra direkte
gevangenisstraf."
This was a somewhat exiguous enquiry
particularly if a long period of imprisonment was contemplated as an appropriate
sentence. Since
questions were put to the appellant, and he was prepared to
answer them from the dock, it might have been of value to know the source
of his
monthly income, whether he was in regular employment and, if so, for how long.
More pertinently his bald allegation that he
is not an addict and his statement
that when discharged from the rehabilitation centre this was told to him ought
not to have been
taken at face value. The magistrate said in his reasons for
sentence that he did consider the desirability of sending the appellant
to such
a centre. In that case all the more need for a proper enquiry in this
regard.
The main purposes of punishment, as is well
10 known, are reformation, retribution and deterrence. To what extent in
this case is a . long period of imprisonment likely to serve
or attain these
objectives? The information on record does not satisfactorily establish whether
his problem is addiction or deliberate
misconduct. If the former,
-
as
Johnson
's case illustrates - imprisonment will not necessarily deprive
him of the source of his dependancy and any treatment received there
has
not
-
at least in the long
run - proved successful. If the latter, the record convincingly demonstrates
that this form of punishment has
had no reformative effect. As regards
retribution, it is, broadly stated, the expiation required of an offender for
the mollification
of the injured party and society at large: "Retribution means,
in essence, the act of requiting or paying in return for evil done":
Commission of Inquiry into The Penal System of
the
11
Republic of South Africa
1976 para 5.1.2.8
page 52. (And see Du Toit
Straf in Suid-Afrika
102.) Particularly since
no complainant or injured party was involved in this offence, the need for
retribution cannot feature significantly
in this case. Heavy sentences in the
past have, as I have said, not prevented the
appellant
from repeating
this offence. Any virtue in a prison sentence for its deterrent effect must
therefore refer to its intended restraining
influence on other would-be
offenders. That this was the main reason for the confirmation of the sentence by
the court a
quo
appears from the passage already cited from the judgment.
In stressing this reason for upholding the sentence emphasis was placed
on what
was said by Steyn J in
S v De Vos
1970(2) SA 590(C) 593 A - E:
"Daar was ongetwyfeld in die afgelope jare 'n geweldige toename in
oortredings van hierdie Wet insoverre as wat dit sy verbodsbepalings
12
aangaande die besit, verkoop, lewering en vervoer
van dagga betref. Daar bestaan by hierdie Hof geen twyfel uit hoofde van sy
ondervinding,
uit hoofde van getuienis wat in verskeie sake voor hom afgele is,
dat die gebruik van dagga nadelig inwerk op diegene, lede van die
gemeenskap,
wat gebruik maak daarvan nie. Dit geld - en ek wil dit onmiddellik stel - nie
alleenlik vanwee die feit dat die gebruik
van dagga kan lei tot die gebruik van
meer ernstige en selfs meer skadelike verdowingsmiddels nie, dit geld vir die
gebruik van dagga
per se
. Daarbenewens is ons daarvan oortuig dat dit ' n
rol speel of op sigself of tesame met die gebruik van drank, wat die pleeg van
ander
oortredings en veral misdade en geweld aanbetref. Derdens is dit ons
mening dat dit die vermoe van diegene wat dit gebruik om te
presteer op
aansienlike wyse nadelig beinvloed. Ons deel hoegenaamd nie die soetsappige
sentimentele uitgangspunt dat die gebruik
van dagga iets is wat deur die
gemeenskap as 'n moderne manifestasie van ons maatskaplike samelewing
aanvaar_moet word nie. Dit is
ons mening dat dit die plig van ons howe is, ter
beskerming van die gemeenskap, om vonnisse op te le wat 'n rol kan speel by die
bekamping van die oortreding, en
hier qaan dit meer besonderlik oor die
afskrikwaarde van vonnisse van gevanqenisstraf
." (Emphasis
supplied.)
But as regards the appellant the possession and use
13
of dagga on his part, one infers, has not caused
him to become addicted to more harmful drugs. Nor has it led to the commission
of
any crimes of violence: his only other offences are for escaping or
attempting to escape from custody and two minor contraventions
of the Liquor
Act, 30 of 1928. Furthermore, there is no evidence that his ability to hold down
a job or support a family has been
detrimentally affected: the little that is on
record points the other way. All this is not to say that his most recent offence
is
not to be regarded in a serious light. But the critical question remains:
whether a long term of imprisonment to serve as a deterrent
to others is
justified in this case at the expense of being fair to the appellant -
particularly if the imposition of some more constructive
form of punishment can
be entertained. As Miller J in
S v Khulu
1975(2) SA 518(N) 521 E pointed
out:
14
"[A]n 'exemplary' sentence may be justified only where the injustice
thereby done to the individual is 'moderate'; a degree of injustice
in that
sense may be a lesser evil than the neglect of the broad interests of society
which sometimes require that severe sentences,
possibly in excess of the true
deserts of the offender in the particular circumstances of his case, should be
imposed for deterrent
effect. But I cannot conceive of any principle which could
justify, for the sake of deterrence, the imposition of a sentence grossly
in
excess of what, in the circumstances of a particular case and having regard only
to the crime and the degree of the particular
offender's moral reprehensibility,
would be a just and fair punishment."
In my view the sentence of 5 years imprisonment, taking into account all
the relevant circumstances, does result in more than a "moderate
degree of
injustice" to the appellant and is to my mind disturbingly inappropriate. This
court is thus free to consider sentence
afresh.
In the course of argument before us the feasibility of imposing a
sentence of correctional
15 supervision in terms of
s 276(1)(h)
of
the
Criminal Procedure Act was
raised. Its merits in reference to this case are
the following:
(1) The consideration of such an order would involve the setting aside of
the existing sentence and the remittal of the case to the
trial magistrate for
his decision on the suitability of this form of punishment. This in turn would
entail a proper and detailed
enquiry to determine whether he is addicted and, if
so, the manner in which he could be treated at a rehabilitation centre not
within
prison precincts. There would in addition be an opportunity to obtain
more information relating to his form of employment and other
relevant personal
details.
(ii) Any such rehabilitative treatment
which
16
might be necessary would have - one may confidently suppose - a better
prospect of success whilst the appellant is a member of the
open community,
employed and living with his family.
(iii) The prospect of his having to serve a term of imprisonment should
he fail to comply with any of the conditions of such an order
would be ever
present to serve as a deterrent.
(iv) Such an order could, and perhaps should, have a community service
component that would satisfy any need for the retributive element
of punishment
to be acknowledged.
(v) Though differing from a conventional prison sentence, correctional
supervision, depending on
17
the conditions imposed, can amount to
an
appropriately severe sentence thus serving as a
deterrent to others and indeed perhaps giving more publicity to the fact
that these offenders do not go unpunished.
All in all,
this alternative punishment would appear to hold out a better prospect of a
constructive result than yet another prison
sentence. Corrective supervision was
introduced as a sentence option by
s 41(a)
of Act 122 of 1991 and was therefore
not one available during 1990 when the trial and appeal took place. This,
however, is no bar
to this court remitting the matter for such a sentence to be
considered. (
S v R
1993(1) SA 476 (A) 484 J - 485G.)
In the result the appeal succeeds. The appellant's sentence is set aside
and the matter is
18
remitted to the trial court to sentence the appellant, after due
compliance with the provisions of
s 276A(l)(a)
of the
Criminal Procedure Act 51
of 1977
to correctional supervision in terms of
s 276(1)
(h) of that Act or, if
for good reason the appellant is found not to be fit for such a sentence, to
otherwise sentence him in the
light of the views expressed in this
judgment.
M E KUMLEBEN
JUDGE OF
APPEAL
EKSTEEN JA
- CONCUR NIENABER JA