(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

DATE:							18 APRIL 2008

In the matter between:

and

JUDGMENT

[1] For the sake of convenience I shall refer to the appellant as the accused. The accused was charged on 5 December 2006 of having contravened section 5(b), alternatively 4(b) and related sections of the Drug Trafficking Act 140 of 1992 (to which I shall refer as "the Act").

[4] The second of the alleged misdirections is that the magistrate over-emphasised the seriousness of the offence at the expense of the accused's personal circumstances. The third of the alleged misdirections is that the magistrate failed to give due consideration to the accused's    condition    of    health,    as   well    as   the consequences thereof when he imposed such a lengthy period of imprisonment.

[5] It is trite that a court in exercising an appeal function does not have an overriding power to interfere with the sentence imposed by a fower court at will, but will only do so if the sentence imposed is shockingly or disturbingly inappropriate, or if the lower Court committed a material misdirection. Those bases have been formulated in a number of decisions which need not be quoted, but can be paraphrased broadly as follows.

[6] The first ground requires the Court to determine, with reference to the record of the proceedings, whether there is a striking disparity between the sentence imposed by the trial Court and that which the Court of appeal would have imposed had it sat as a Court of first instance. As regards the second basis, it is trite that it constitutes a misdirection if the trial Court misconstrued certain facts; failed to have taken certain material factors which should have been taken into account; or has over-accentuated the seriousness of the crime and/or under-estimated the accused's personal circumstances.

[7] I have carefully considered the magistrates detailed judgment on sentence and have come to the conclusion that he dealt with, and carefully weighed each and every one of the aspects enumerated in the accused's counsel's heads of argument, and considered them in an even-handed and balanced manner. Accordingly, the misdirections attributed to the magistrate, in my view, are devoid of any merit.

[8] It is common cause that the accused, by having brought 9.961 kilograms of cocaine into the Republic of South Africa from South America, performed an act of importation which, in terms of section 1 of the Act amounts to dealing therein which, in terms of section 13(f) is an offence and in terms of section 17, punishable with a sentence of 25 years' imprisonment or both such imprisonment and a fine and such fine as a court might deem fit to impose.

[9] It is apparent from the said penalty provision that the Legislature viewed crimes such as the one of which the accused has been convicted, in a very serious light. Bearing in mind the prevalence of the offence, as mentioned by the magistrate, and the cataclysmic consequences of addiction to hard drugs of that nature on individuals and society; that the accused had been warned against participating in bringing drugs into South Africa from overseas previously, and did so again purely because of financial considerations; and failed to show any remorse there, in my view, there is not such a disparity between the sentence imposed by the magistrate and the one I would have imposed had I sat as a Court of first instance that it would have evoked a reaction of shock or a reaction of startling inappropriateness. In my view, the crime of which the accused has been convicted requires the imposition of a severe sentence and that is exactly what the magistrate did.

[10] Bearing in mind all those factors that should normally be taken into account in sentencing, the magistrate's conduct in having imposed the sentence he did, cannot be criticised. I accordingly incline to the view that the only other ground on which the sentence was assailed is also devoid of any merit.

[12] In conclusion, although it is an aspect that did not feature in this appeal, there is an aspect that troubfed both members of this Court. It is that the magistrate who tried the accused is the same magistrate who presided in the application for bail on 8 February 2006, i.e. approximately 10 months prior to the trial. What troubled us was that as the accused was charged with a Schedule 5 offence, he, in terms of section 60(11)(b), was obliged to divulge any previous convictions and in fact alluded to previous convictions for possession of marijuana and housebreaking.

[13] Although the record of such proceedings formed part of the record of the trial, it did not feature in the proceedings before the magistrate but, contrary to the provisions of section 60(11)(b), the full record of both proceedings, including the reference to the previous convictions, forms part of the record on appeal. There does not appear to have been anything improper in the magistrate hearing the bail application and the provisions of section 197 of Act 51 of 1977 (the Criminal Procedure Act) - which restricts questions relating to previous convictions to clearly circumscribed circumstances - do not appear to have been offended against during the trial.

[18]  Accordingly, in our view, there is no need for us to interfere with the conviction in the exercise of our review powers.