[11] It was further submitted that the accused was without means to pay a fine. One can only surmise that this was inferred from the accused being unemployed because no evidence was placed before the court as regards the accused’s ability to pay a fine. In fact, one is unable to glean from the record that this possibility was ever considered; neither is it stated in the magistrate’s subsequent remarks. [12] Whereas the magistrate failed to make any effort to enquire into the accused’s personal circumstances or financial circumstances and whether she would be able to pay a fine if it were to be imposed, it cannot simply be assumed that a fine was not an option open to the court; even if the accused is unemployed. It is settled law that when the accused, though unable to personally afford paying a fine, can make payment with the assistance of friends and family, then the court may impose a fine if it would be appropriate in the circumstances. [13] In our view, and due regard being had to the personal circumstances of the accused, this is an instance where the court should have considered imposing a fine instead of a custodial sentence. Prevalence of the offence and the accused’s intention to provide a trial awaiting prisoner with a drug are indeed aggravating factors which the trial court was entitled to take into account; however, it was clearly over-emphasised at the expense of the accused and in that regard the magistrate did not exercise his discretion judiciously. [14] The sentence imposed in this instance is shockingly inappropriate and cannot be permitted to stand. The circumstances of this case are not exceptional, justifying a custodial sentence of two years and though the principle of individualisation is recognised, sentence must not be decided in isolation but must be balanced against uniformity with previous cases (S v Strauss 1990 NR 71 (HC). It is evident from review cases that it has become the norm in the lower courts not to impose custodial sentences on first offenders in cases involving possession of small quantities of cannabis.
[11] It was further submitted that the accused was without means to pay a fine. One can only surmise that this was inferred from the accused being unemployed because no evidence was placed before the court as regards the accused’s ability to pay a fine. In fact, one is unable to glean from the record that this possibility was ever considered; neither is it stated in the magistrate’s subsequent remarks. [12] Whereas the magistrate failed to make any effort to enquire into the accused’s personal circumstances or financial circumstances and whether she would be able to pay a fine if it were to be imposed, it cannot simply be assumed that a fine was not an option open to the court; even if the accused is unemployed. It is settled law that when the accused, though unable to personally afford paying a fine, can make payment with the assistance of friends and family, then the court may impose a fine if it would be appropriate in the circumstances. [13] In our view, and due regard being had to the personal circumstances of the accused, this is an instance where the court should have considered imposing a fine instead of a custodial sentence. Prevalence of the offence and the accused’s intention to provide a trial awaiting prisoner with a drug are indeed aggravating factors which the trial court was entitled to take into account; however, it was clearly over-emphasised at the expense of the accused and in that regard the magistrate did not exercise his discretion judiciously. [14] The sentence imposed in this instance is shockingly inappropriate and cannot be permitted to stand. The circumstances of this case are not exceptional, justifying a custodial sentence of two years and though the principle of individualisation is recognised, sentence must not be decided in isolation but must be balanced against uniformity with previous cases (S v Strauss 1990 NR 71 (HC). It is evident from review cases that it has become the norm in the lower courts not to impose custodial sentences on first offenders in cases involving possession of small quantities of cannabis.
S%20v%20Ganda%20(CR%2013-2014)%20[2014]%20NAHCNLD%2024%20(24%20March%202014).docx