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1994
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[1994] ZASCA 117
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S v Hermanus (406/93) [1994] ZASCA 117; [1995] 3 All SA 169 (A) (16 September 1994)
Case No 406/93
/MC
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between
SHARON DAWN HERMANUS APPELLANT
and
THE
STATE RESPONDENT
CORAM: HEFER, VIVIER et HARMS JJA. HEARD: 16 September 1994. JUDGMENT
DELIVERED: 16 September 1994
REASONS AND ORDER
VIVIER JA/
2
VIVIER JA:
The appellant, on her plea of guilty, was convicted in the
Magistrate's Court on a charge of dealing in dangerous dependence-producing
drugs in contravention of sec 2(c) of Act 41 of 1971. She was sentenced to four
years' imprisonment of which two years' imprisonment
was conditionally suspended
for five years. Her appeal to the Witwatersrand Local Division against sentence
failed. Subsequently
leave was granted upon petition to appeal to this Court
against the sentence.
After hearing argument this Court allowed the appeal, stating that reasons
and the order would be furnished later. The reasons and
order follow.
At the trial the appellant admitted to having sold 20 tablets containing
phendimetrazine, a dangerous dependence-producing substance,
commonly known as
obex. She had obtained the obex
3
tablets lawfully on a medical doctor's prescription for her own use in order
to lose weight and had previously given some obex tablets
to a friend of hers.
The friend was arrested and informed the police that she had obtained the
tablets from the appellant. A trap
was set up and on 14 March 1990, and in Eloff
Street, Johannesburg, the appellant sold the 20 tablets to a policeman acting as
a
trap at a price of R7 per tablet after he had informed her that her friend had
sent him to her. Although the appellant had been charged
with possessing six
more tablets with the intention of selling them this was not proved.
The appellant is a 33 year old woman and the mother of two children aged
twelve and seven years who are dependent on her. She is not
married. She works
as a secretary and earns R2 200 per month. The magistrate treated her as a first
offender, disregarding a previous
conviction incurred on 28 September 1977
4
for the possession of dagga for which she was given a suspended
sentence.
Early on in his judgment on sentence the magistrate said that he
accepted that the appellant did not supply drugs to others on a regular
or
organised basis and that she could not be regarded as a drug dealer in the true
sense of the word. From an analysis of the rest
of his judgment on sentence it
seems that the magistrate lost sight of this finding when he concluded that an
exemplary sentence
was called for in the present case. In coming to this
conclusion the magistrate repeatedly emphasised the seriousness of the offence
of dealing in drugs and in this regard he quoted certain passages from S v Howe
1989 (2) SA 473
(W) at 478E-G and S v Gibson
1974 (4) SA 478
(A) at 481H. These
passages, however, deal with drug dealers proper and are not strictly relevant
to the facts of the present case.
So, for example, in the passage from S v
Gibson,
5
Holmes JA states that "a supplier for gain may in general be
regarded as a
vicious person who needs to be put down". Not only
was the present appellant
not a regular supplier but there was no
evidence that she sold the tablets
for more than she paid for them.
In his additional reasons the magistrate
said that the appellant's
motive for selling the tablets could only have been
greed. In
making this finding the magistrate misdirected himself.
The magistrate further referred to the high prevalance of
the
offence in the Johannesburg area and said that this in itself
was
sufficient reason for him to increase the seventy of the sentence.
He stressed the need for a strongly deterrent sentence in the
interests of the community and said that a light sentence would not
bring about that result. In S v Maseko
1982 (1) SA 99
(A) at
102E-G Miller JA said the following about exemplary sentences:
"What has to be guarded against when exemplary sentences are imposed is the
danger that excessive devotion by a
6
judicial officer to furtherance of the cause of deterrence may so obscure other
relevant considerations as to result in very severe
punishment of a particular
offender which is grossly disproportionate to his deserts."
In my
view this is what has happened in the present case. Dealing in
dependence-producing drugs is undoubtedly a very serious offence.
There are,
however, exceptional circumstances in the present case which distinguish it from
other cases of its kind. The appellant
lawfully possessed the tablets. The sale
to the police trap could certainly be regarded as an isolated occasion, despite
the fact
that the appellant had previously given some tablets to her friend.
Nothing is known about that incident and too much should not
be made of it. It
has not be shown that the appellant sold the tablets to the police trap in order
to make a profit. In my view the
magistrate overemphasised the seriousness of
the crime and the need for deterrence and attached insufficient weight to the
particular
7
circumstances of the case, with the result that the appellant received an
unduly severe sentence. Cf S v Collins
1990 (1) SACR 577
(A) at 581b-f.
The
Court a quo took into account, in aggravation of sentence, that on the day the
appellant sold the 20 tablets to the police trap
she possessed a further six
obex tablets with the intention of selling it. As I have said, there was no
evidence to justify such
a finding, and the Court a quo misdirected itself in
this regard.
For these reasons the appeal was allowed. The following order is made. The
sentence imposed by the magistrate is set aside and the
following sentence is
substituted. A fine of Rl 000 or in default of payment thereof six months'
imprisonment; and two years' imprisonment
suspended for five years on condition
that the accused is not convicted of contravening sections 2(a), 2(b), 2(c)
8
or 2(d) of Act 41 of 1971 during the period of suspension in respect of which
she is sentenced to unsuspended imprisonment of not
less than six months'
imprisonment.
W VIVIER JA.
HEFER JA)
HARMS JA) Concur.