IN THE SOUTH GAUTENG HIGH COURT
(The Republic of South Africa)
CASE NUMBER: A87/2013
In the appeal between:
PRINSLOO, HELLBERTH					APPELLANT
and
THE STATE							RESPONDENT

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CORAM:			VICTOR J et VALLY AJ
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JUDGMENT:		VALLY AJ; 
				VICTOR J (concurring)
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HEARD ON:		27 AUGUST 2013
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DELIVERED ON:	29 AUGUST 2013
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Vally AJ:
A.	Introduction
1.	The Appellant, a 49 year old male South African citizen was convicted in 	the Kempton Park Magistrate's Court of contravening Section 5(b) of Act 	140 of 1992 read with sections1, 13, 17, 18 and 25 of Act 140 of 1992, as 	amended.  On the 17 August 2011, he did unlawfully deal in 771.33 grams 	of cocaine by importing it into South Africa via an aircraft at OR Tambo 	International Airport in Kempton Park.
2.	The Appellant, who was legally represented at all relevant times, pleaded 	guilty to the charge set out above and handed in a written plea in terms 	112(2) of Act 51 of 1977.  The guilty plea was accepted by the State and the 	Appellant was accordingly convicted and sentenced to ten (10) years 	imprisonment on the 25 January 2012.
3.	The Trial Court granted the Appellant condonation for the late filing of the 	application for leave to appeal and he was granted Leave to Appeal against	 	the sentence only on the 6 December 2012.
B.	Sentence
4.	As regards appeals against sentences, it is established law "that a court of 	appeal can only interfere with the exercise of such a discretion by the 	sentencing court where it is satisfied that the sentencing court misdirected  		itself, or did not exercise its discretion properly or judicially.  Absent such 	proof the appeal court has no right to interfere with the exercise of a 	discretion by a sentencing court."
	S v Mokela 
5.	The limited circumstances under which an appeal court can interfere with 	the sentence imposed by a sentencing court have been distilled and set out in 	many judgments.  In the matter of S v Whitehead and Others the test 	enunciated was whether the sentences " were startlingly inappropriate" or 	whether "they induce a sense of shock".  Similarly in S v Malgas, the 	question asked was would the appeal court have regarded the sentence as 	"shocking, startling or disturbingly inappropriate".
6.	It is well established law that a just and fair sentence would be  one that 	takes into account the gravity of the crime, the personal circumstances of the 	Appellant and the interests of society.
7.	The Trial Court did take into account all of these factors when sentencing 	the Appellant viz. the gravity of the crime, the personal circumstances of 	the Appellant and the interests of society.
8.	In mitigation of sentence:
		8.1 Although the Appellant had previous convictions, these were old 			and therefore  the Trial Court considered him a first time offender for 			purposes of sentence.
		8.2 The Trial Court recognised that he did not waste the Court's time 			by pleading guilty	.
9.	In S v Morebudi, the Supreme Court of Appeal confirmed a sentence of 	14 years for contravening Section 5(b) of  Act 140 of 1992, albeit for dealing 	in 1 433kg of dagga.  Furthermore it affirmed that it was 	proper for the 	court a quo to take into account a previous conviction which had 	occurred more than 20 years previously, to the limited extent that the 	Appellant should have been aware of the consequence of  crime and had not 	taken heed thereof.
10.	In S v Opperman, a 26 year old single parent who was pregnant at the 	time of her trial and who was the sole supporter of her children sentence of 	ten years imprisonment for contravening Section 5(b) of Act 140 of 1992 	was confirmed on appeal. She was a first offender and had imported  6 353 g 	of cocaine into the country.
11.	There is no evidence to show that the trial court misdirected itself, or did not 	exercise its discretion properly or judicially.  
12.	Drug 	dependency is a scourge in our society. It is destroying families and  	drug 	dealers target persons from a young age.  It impacts negatively on the 	whole of our society and can be regarded as a national crisis. The Appellant 	who was a widower and had two minor children at the time of the offence 	should be especially aware of the possible consequences of his actions on 	the lives of his children.
13.	The Appellant, as a courier , was an essential link in bringing drugs into the 	country.  He had every opportunity to 	reconsider his participation in this 	criminal enterprise at every stage.  Instead he chose to travel all the way to 	Brazil, ingested 771.3 grams of 'bullets' of cocaine at great risk to himself 	and returned to South Africa with this drug in his body purely for monetary 	gain.
14.	In view of the aforegoing, the sentence of ten years imprisonment cannot be 	regarded as shocking, startling or disturbingly inappropriate.  It is a just, fair, 	reasonable and balanced sentence.
For all these reasons the appeal against the sentence has to fail.  Accordingly, the following order is made:
The Appeal is dismissed.

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Vally AJ
Acting Judge of the South Gauteng  High Court
Johannesburg.

I concur

________________________
Victor J
Judge of the South Gauteng  High Court
Johannesburg.

Appearances:
For the Appellant:		Adv. C. Xamsa
Johannesburg Justice Centre
41 Fox Street
Edura House
Johannesburg
For the Respondent:	Adv. CCW Steyn
Private Bag X 8
Johannesburg
2000