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(EASTERN CAPE DIVISION)

REVIEW CASE NO: 20080069

DATE DELIVERED: 7/5/08

In the matter between:

THE STATE

and

SISEKO BAM

REVIEW JUDGMENT

PLASKET J

[1] The accused was correctly convicted of contravening s 4(b) of the Drugs and Drug Trafficking Act 140 of 1992. He was sentenced to 12 months imprisonment, a sentence which I queried with reference to Jones J’s judgment in S v Yaka and others.¹

[2] The accused is a prisoner serving a sentence in the Fort Glamorgan Prison in East London. On 2 October 2007 he was found in possession of 117.5 grams of dagga. He was duly convicted of possession of dagga, rather than the more serious offence of dealing in it.

[3] The accused has five previous convictions, two for the unlawful possession of arms and ammunition, two for housebreaking and one for robbery. He is single and has no dependants. He lived, prior to being imprisoned, with his parents. His highest level of education is standard eight.

[4] In Yaka’s case, Jones J (with whom Leach J concurred) set aside four sentences for possession of dagga in prisons which ranged from 12 months to three years. He held that even though the fact that the dagga was possessed in a prison ‘while three of the accused were serving sentences for other offences, and the fourth was visiting a prisoner and tried to pass the dagga to him’ was an aggravating factor,² the sentences were nonetheless excessive. He held in this regard:³

‘A sentence of three years imprisonment, or 24 months, or 18 months, or 12 months, is not an appropriate sentence for a petty offence. It is patently the kind of sentence that is reserved for more serious cases. The fact of being committed in a prison context is aggravating in respect of sentence, but it does not alter the nature of the offence. It does not make the offence itself more serious.’

[5] There is little difference between the circumstances of this case and those of the accused in the Yaka case. In my view, Jones J’s reasoning in that matter applies with equal force to this matter. In the result, the sentence must be interfered with because, as in the cases of the accused in Yaka, ‘the fundamental principle of the sentence fitting the crime has been overlooked’ and the magistrate has ‘overemphasised the aggravation of the prison context of the offence’.⁴

[6] The accused’s conviction is confirmed but his sentence is set aside and replaced with a sentence of eight months imprisonment backdated to 18 January 2008.

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C. PLASKET

JUDGE OF THE HIGH COURT

I agree:

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J. ROBERSON

ACTING JUDGE OF THE HIGH COURT

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