S v Hermanus

• Jurisdiction: South Africa
• Citation: 1995 (1) SACR 10 (A)

S v Hermanus
1995 (1) SACR 10 (A)

1995 (1) SACR p10

Citation	1995 (1) SACR 10 (A)
Court	Appellate Division
Judge	Hefer JA, Vivier JA and Harms JA
Heard	September 16, 1994
Judgment	September 16, 1994
Counsel	J A du Plessis for the appellant; A A L Neill for the State

Flynote : Sleutelwoorde

F Drug offences — Obex — Dealing in in contravention of s 2(c) of Act 41 of 1971 — Sentence — Appellant a first offender who had lawfully possessed the drug Obex on a medical prescription but sold it to a policeman who pretended to be a friend of a friend — Sentence of four years' imprisonment of which two years suspended set aside on appeal, Court G holding that magistrate had treated appellant as a drug dealer, which she was not — Sentence altered to one of a fine of R1 000 or six months' imprisonment and a further two years' imprisonment suspended for five years.

Sentence — Exemplary sentence for serious offence — When permissible for such sentence to be imposed — Appellant, who lawfully possessed Obex H tablets, sold tablets to policeman pretending to be a friend of a friend — Magistrate having overemphasised the seriousness of the offence and the need for deterrence and treated the appellant as a drug dealer — Magistrate having attached insufficient weight to the particular circumstances of the case with the result that the appellant received an unduly severe sentence — Sentence reduced on appeal. I

Headnote : Kopnota

The appellant was convicted by a magistrate of dealing in dangerous dependence-producing drugs in contravention of s 2(c) of Act 41 of 1971. She possessed Obex tablets lawfully on a medical prescription but then gave some to a friend who was arrested. On the friend's informing the police of where she had obtained the tablets, a trap was set and appellant then sold 20 tablets to a policeman acting as a trap. The appellant was J sentenced by a

1995 (1) SACR p11

A magistrate to four years' imprisonment, two years of which were conditionally suspended for five years. On appeal,

Held, that the magistrate had overemphasised the need for deterrence, and had paid insufficient regard to the accused's particular circumstances. She was supporting two children as an unmarried mother and was clearly not operating as a dealer. She possessed the tablets lawfully and the trap B represented an isolated occasion. She had not sold the tablets for gain and no evidence had been led showing that she possessed further tablets with the intention of selling them.

Held, further, that the overemphasis on deterrence resulted in an unduly severe sentence and that, accordingly, the appeal had to succeed. Sentence set aside and replaced by a sentence of a fine of R1 000 or six months' imprisonment and a further two years' imprisonment...