BACKGROUND AND SUMMARY
|The court was tasked with considering whether or not the sentence passed in the trial court was in accordance with justice, in terms of section 304 of the Criminal Procedure Act, 51 of 1977 (“the Act”).
The accused appeared before the magistrate in Muizenberg in the district of Simon’s Town and pleaded guilty to unlawful possession of 7 (Seven) packets of Tik, which is listed in Part III of Schedule 2 of the Drugs and Drug Trafficking Act 140 of 1992 as an undesirable dependence producing substance.
The accused was questioned in terms of section 112(1)(b) of the Act. The magistrate was satisfied of the accused’s guilt and, as such, proceeded to convict him.
The State argued for direct imprisonment as the only appropriate sentence. The accused was sentenced as follows:
“R5000.00 (Five Thousand Rand) or 5 (Five) months imprisonment. A further 10 (Ten) months imprisonment is suspended for a period of 5 (Five) years on condition that the accused is not convicted of contravention of section 4(b) or 5(b) of Act 140 of 1992 committed during the period of suspension.”
In reviewing the decisions, the learned Boqwana J and Thulare AJ, requested that the Magistrate comment on the proportionality of the fine vis a vis terms of imprisonment imposed, in the light of S v Permall 2018 (2) SACR 206 (WCC).
In his response, the Magistrate raised the issue that Permall appears to take away the discretion of the magistrate in sentencing. The suggestion is that by referring to the mathematical formula, this court held that the computation ought to be rigidly applied in each case when the magistrate decides to impose a fine, thus losing the particular circumstances of an individual case.
The principle repeated in S v Swarts (181072)  ZAWCHC provides an important starting point when considering sentencing: “Sentencing entails the exercise of a discretion vested in a court which, like all discretionary powers, must be exercised judicially. Mocumie JA expressed herself as follows in Mhlongo, supra at para 3: “… Especially in criminal matters where the liberty of a person is at stake, it must be exercised judiciously and in accordance with principles of fairness and justice.”
The court emphasized that a uniform term of imprisonment as an alternative should not necessarily follow a particular fine that a Magistrate has determined or vice versa, mechanically. A sentence to be imposed is within the discretion of the trial court.
Permall merely stands to reinforce the notion that a judicial officer ought not to impose a sentence that is disproportionate.
The magistrate is not obliged to apply the ratio and must consider all relevant factors in order to meet justice as the circumstances of the case dictates. When it comes to the relationship between a fine and a period of imprisonment, it is impossible to generalize.
The learned Boqwana J and Thulare AJ stated further that, proportionality is a key consideration in sentencing. Whilst the relationship between the fine and the period of imprisonment may be relevant for determination, regard must be had to the crime, the criminal and the interests of society.
|In remarking “fines should be consistent so as to create certainty, depending on the circumstances of each offender, the seriousness of the crime and interests of society.”,
In this case, the previous convictions of the accused weighed heavily on the trial court and, more specifically, that there were only 38 days between the last day of his conviction and sentence and the offence for which the magistrate convicted him.
The continued possession of drugs in contravention of the legislation, the number of units found on the accused and the amount of money found on his person, could explain why he did not desist from possession of drugs. These are relevant factors in the evaluation of an appropriate sentence. A fine may not have had any effect on the accused in the past.
The court elected to confirm the proceedings, particularly because the sentence does not appear to be shockingly inappropriate and as being in accordance with justice.
The case stands to confirm to the extent that an individual seeks to challenge a sentence imposed by calling for review of the decision, that same shall be weighed up against the ideal of justice and provides for a proportionality test in considering the punishment imposed on the accused, in relation to the offence committed as well as the history of criminal behavior of the accused.
Written by Justin Howard Checked by Andrew Lawrie