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REPUBLIC OF SOUTH AFRICA
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
In the matter between
ARIAS JIMENEZ Appellant
and
THE STATE Respondent
Composition of the Court : OLIVIER, CAMERON JJA and LEWIS AJA
Date of hearing : 5 NOVEMBER 2002
Date of delivery : 21 FEBRUARY 2003
SUMMARY
Smuggling of drugs into RSA - Sentence - relevant factors.
________________________________________________________________
J U D G M E N T
________________________________________________________________
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 (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
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