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Reportable
CASE NO: 73/2002
In the matter between :
and
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Coram: OLIVIER, CAMERON JJA et LEWIS AJA
Delivered: 21 FEBRUARY 2003
Summary: Dealing in drugs – Sentence – Relevant factors
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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
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.RTF of original document