The relevant section permits a fine up to level 10 (i.e.
US$700=) or imprisonment not exceeding five years or both.
The accused was sentenced to 36 months imprisonment of
which 12 months was suspended on the usual conditions.
In sentencing the accused, the magistrate alluded to the
harmful effects of the drug and the large quantity that he had grown. He was
also mindful of the need not to trivialise the offence by granting a fine or
community service in lieu of incarceration.
Whilst the conviction is proper, the sentence, in my view,
is unduly harsh for reasons hereby elaborated.
The criminal justice system, as a general principle, is
non-discriminatory in holding criminal violators to account for their actions
regardless of factors such as age, sex, social class or race to mention a few.
However, in meting out punishment it is a fact that positive biases often
emerge towards certain groups such as the elderly because of their increased
physical vulnerability that often comes with age which may make a lengthy
prison term unduly harsh in the case of relatively less serious crimes. Another
group sometimes treated differently are women offenders given the often less
dangerous nature of the criminality or the consequences of their gendered roles
as caretakers. Yet another group, very youthful criminal offenders given their
perceived lack of maturity to make proper judgment at the time of commission of
offences.
Thus, while elderly offenders who commit crimes can expect
to be held accountable for their actions and to be punished in accordance with
the gravity of their crime, the severity of the sentence, especially where
incarceration is deemed necessary, should, in my view, take into account
whether such elderly person is being convicted of a violent or non-violent
crime.
Prison is harsh.
It is a known fact that our prisons are over-crowded and
that the relevant authorities who run prisons do so on a shoe string budget.
Media reports of prisoners going hungry are not unknown. Magistrates should therefore
be alive to the real consequences of taking an overly punitive approach that
subjects non-violent offenders to lengthy prison terms especially those who are
already vulnerable.
This is not to unwittingly foster a soft approach to crime
but to encourage the adoption of a critical approach to sentencing that is
equally alive to the seriousness of the offence committed as it is to the
environmental circumstances leading to the commission of the crime as well as
other personal factors that pertain to the accused.
A three year imprisonment term with one year suspended, and
even taking into account reduction in sentence that may result from good
behaviour, still takes away a considerable portion of his life which he will
have to spend in extremely harsh prison conditions for a non-violent crime. An
approach to sentencing for such crimes which combines the legal position with
lived realities is more likely to result in a balanced sentence than one which
seeks to mechanically apply precedence on dagga sentencing in such matters.
Happily, case law suggests that in such matters involving cultivation of dagga
by an elderly offender, age is a factor to be taken into account in meting out
an appropriate sentence. For example, in S v Sithole HH436-86, a 63 year old
offender was convicted of and sentenced to 2 years. He appealed his sentence.
On appeal, the sentence was reduced to 1 year effective with the other year
suspended for five years on the usual conditions.
In my view, a similar sentence in this matter would more
than meet the justice of the case….,.
Accordingly, the accused's sentence is altered as follows:
“24 months imprisonment of which 12 months is
suspended for 5 years on condition accused does not during that period commit
any offence involving the unlawful cultivation, possession, sale and supply of
dagga and for which upon conviction he is sentenced to imprisonment without the
option of fine. The dagga in question is hereby forfeited to the State.”
