MINIMUM SENTENCE – STATE’S DUTY

S v MUKUYU 2017 (2) SACR 27 (GJ)

Sentence — Prescribed minimum sentences — Criminal Law Amendment Act 140 of 1992 — Application of by state — Semble: where facts relied upon place offence within ambit of Act, state duty-bound to invoke provisions to prevent aims and objects of Act being undermined.

Drugs — Cocaine — Dealing in in contravention of s 5(b) of Drugs and Drug Trafficking Act 140 of 1992 — Sentence — Young mother of 8-year-old child bringing 3,076 kg into country — Sentence of 12 years’ imprisonment imposed.

The appellant, a 36-year-old single mother of an 8-year-old child, was convicted in a regional magistrates’ court of dealing in 3,076 kg of cocaine in contravention of s 5(b) of the Drugs and Drug Trafficking Act 140 of 1992, having brought the cocaine with her on a flight from Brazil. She was sentenced to 15 years’ imprisonment. The state conducted the case against her without invoking the minimum-sentencing legislation or making any attempt to prove the value of the cocaine.

Held, that the appellant was prejudiced in her defence by the state’s omissions in this regard and furthermore that there had been no investigation of the interests of her young child. These circumstances constituted an irregularity sufficiently serious to warrant the court interfering with the sentence imposed by the court a quo.

 

Held, further, that in the circumstances, a sentence of 12 years’ imprisonment would be appropriate (see [28]).

Semble: In each case where the facts relied upon place the offence within the ambit of the Criminal Law Amendment Act 105 of 1997, the state was duty-bound to invoke the provisions of that Act. If it were left up to the state to decide on a discretionary basis whether to rely upon minimum-sentencing legislation, accused persons charged with such offences may escape their sentences because of the state’s omission. This would undermine the aims and objects of the Act. Public policy considerations and the public interest required that the Act be applied and enforced where the facts and circumstances brought the offences within the ambit of the Act.

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