REGINA v HADJIVASSILI 1980 ZLR 57 (A)

Author: Trodat Zimbabwe

REGINA v HADJIVASSILI 1980 ZLR 57 (A)

1980 ZLR p57

Flynote

Criminal procedure — sentence — prospective deportation of accused — whether Dmitigatory.

Headnote

The appellant had been convicted of buying foreign currency in contravention of section 3 (1) (a) (i) of the Exchange control Regulations, 1977? as it was his second conviction for an offence under the Act imprisonment was mandatory and he was sentenced to an effective term of imprisonment accordingly. On appeal it was argued that because he was due to be deported from the _E country as a result of his previous offence, the whole of his sentence should have been suspended.

Held that in the circumstances the appellant’s impending deportation was not a mitigating factor.

Held, further, that the courts should not refrain from imposing what is the proper sentence for an offence merely because executive action will be taken against _F the offender by way of deportation.

Cases cited

S v Horowitz1976 (1) RLR 241 (AD)? _G

Case information

R. W Pollard, for the respondent. _H

R. Jagger for the appellant, cited the following cases:

S v Horowitz 1976 (1) RLR 241 (AD)?

R v Poswell and Anor., 1969 (4) SA 194 (R),

R v Barclay, 1975 (2) RLR 87 (AD)? 1969 (4) SA 195 (RAD)?

R v Pretorius and Anor., 1969 (2) RLR 402 (GD)? 1969 (4) SA 198 (R)

Judgment

Lewis JP: The appellant in this case was convicted in the Court of the Provincial Magistrate at Fort

Victoria of the crime of contravening subparagraph (i) of paragraph (a) of subsection (1) of section

3 of the Exchange control Regulations, 1977, that is to say, unlawfully buying

1980 ZLR p58

Lewis JP

foreign currency. He was sentenced to three months’ imprisonment with labour and to a fine of $171 or, in default of payment, one month’s imprisonment with labour. The foreign currency involved in the _A transaction, consisting of 210 South African rands, was declared forfeited.

He noted an appeal to this Court against both conviction and sentence, but Mr Jagger who appeared for him today has informed the Court that although not authorized to abandon the appeal against conviction he _B finds himself unable to advance any argument in support of that appeal. That attitude is readily understandable. The guilt of the appellant was established beyond any doubt at all. What happened was that the appellant, who was a store­keeper in Fort Victoria, was approached by an African who wanted to buy a bed. He had R210 in notes. The African _C bought the bed from the appellant for $75, handed over his R210 and received $135 by way of change. In effect, therefore, this was the buying of R210 for $210. The evidence of the African concerned, who was admittedly an accomplice, was corroborated in full by the appellant’s extra­curial statement, the admissibility of which was not challenged and _D the accuracy of which was established beyond any reasonable doubt.

As regards sentence, as this was the appellant’s second conviction for the same offence, a prison sentence was mandatory. The fine imposed was also mandatory, the equivalent of the foreign currency involved. _E

The only basis upon which Mr Jagger has found himself able to support the appeal against sentence is the simple one that the appellant is due to be deported from the country. This deportation order arises from his previous conviction and not as a consequence of the current _F conviction. We are urged to suspend the whole of the sentence because of this factor.

In considering this argument, it is necessary to consider the appellant’s background. He came here originally as an immigrant from Cyprus as a _G youngster, and on the 4th March, 1970, he was convicted of the crime of criminal injuria at Fort Victoria and was sentenced to a moderate correction of six cuts with the cane. In consequence of that conviction, he was declared a prohibited immigrant and deported back to Cyprus.

He re­entered this country apparently some time in 1975 on a temporary _H residence permit and it must be assumed that this was granted to him, having regard to his previous background, only on condition that he behaved himself in this country and properly observed the laws of this country. On the 17th May, 1979, he was convicted of contravening section

1980 ZLR p59

Lewis JP

5 (1) (a) (i) of the Exchange control Act [Chapter 170], as read with section 5 (1) of the Exchange control Regulations, that is possessing _A foreign currency to the value of more than $20, and also of contravening section 5 (1) (a) (i) of the Exchange control Act, as read with section 16 (1) (b) of the Exchange control Regulations, in attempting to export foreign currency without the permission of the

Minister. The foreign currency involved in those offences was the very large sum of R22 000, _B plus U S.$448 and £130 sterling. On that occasion, both counts being treated as one for sentence, he was sentenced to a fine of $18 400 (which was presumably the equivalent of the foreign currency involved), or, in default of payment, to undergo 18 months’ imprisonment with labour, and the usual forfeiture order was made in regard to the currency. _C Despite that severe warning one finds, a mere five months later, in October of last year he was commencing to build up another fund of foreign currency in precisely the same way. He admitted at his trial in the instant case that the R22

000 which he had accumulated and which was the subject of the previous offences was all accumulated as a result of _D buying rends from Africans employed in Johannesburg on the mines through the WENELA organization. These Africans on their return to this country had sold their rends to him instead of exchanging them for dollars at the bank at the proper rate of exchange, as they should have done. There was evidence from the police that this practice of selling _E dollars to Africans of the WENELA organization returning to this country in exchange for rends at favourable rates of exchange was extremely prevalent, and that this was having a serious effect on this country’s foreign currency reserves because the money was finding its way into the hands of traders such as the appellant instead of being exchanged at the _F proper rate of exchange through the banks.

Now, the argument is that the whole of the prison sentence in this case should have been suspended because of the deportation order in force against the appellant, which is in itself a severe punishment. The principle _G to be applied where, as in the present case, a prison sentence is a mandatory one laid down by the Legislature was formulated in the case of S v Horowitz, 1976 (1) R L.R 238 (AD) by the CHIEF JUSTICE. In a judgment, in which I concurred, the learned CHIEF

JUSTICE said at page 242: _H

“Where the Legislature has decreed a mandatory prison sentence, a Court will not lightly order the whole of that sentence to be suspended (compare the remarks in S v Mtembu, 1970 (1) SA 435 (N.)) and will only do so when the mitigating circumstances clearly make such a course desirable. On the 20th August, 1971, the appellant had received a clear and explicit warning of what would happen if he contravened the Exchange Control legislation again and,

1980 ZLR p60

Lewis JP notwithstanding that warning, he did so on about the 30th May, 1973, that is only some 20 months after his first conviction.”

I pause here to reiterate that in the instant case it was only a bare five _A months after the first conviction that the appellant blatantly contravened the regulations again. Then, at page 241H, the CHIEF JUSTICE said:

“In considering whether part or whole of the sentence should have been suspended, it is important to consider the seriousness of the earlier and present offences and to give due weight to the appellant’s personal circumstances. It B is accepted that the earlier offences were committed when the appellant sent money to Israel to assist an indigent relative, not to create a fund for the appellant’s own use outside the country. The charitable motive behind the commission of the earlier offences reduced the appellant’s moral blameworthiness for those offences.”

It _C was then pointed out in the judgment that so far as the current offences were concerned there was also the mitigating feature that originally the appellant expected to receive the necessary funds for importing machinery for his business from moneys which he had in Zambia, but that fell through? initially he had no intention of contravening the law, but he was _D tempted, because of his failure to obtain access to his Zambian funds, to break the law in order to get the machinery which was vitally needed into this country. Those circumstances were clearly mitigating circumstances both as regards the earlier offences involved in the previous convictions and the later offences, and certainly as regards the earlier offences _E the circumstances were far more mitigatory than in the instant case, yet this Court refused to order the suspension of the whole of the prison sentence, but merely reduced the effective period to one of two months.

Bearing in mind the principle laid down, it does not seem to me that _F it can be said that it is a mitigating circumstance of this current offence that the appellant will be deported from the country. This is something which arose out of his first conviction under the Exchange control Act. Moreover, it does not seem to me that Courts should refrain from imposing what is the proper sentence for an offence merely because executive _G action will be taken against the offender by the authorities by way of deportation. That is a matter for the Executive. The immigration authorities may, in their discretion, decide to deport the appellant immediately, as has been done in other cases in the past, and in that event he would not serve the sentence imposed upon him. As far as this _H Court is concerned, its concern is to see that the sentence is an appropriate one for the offence committed, having regard to the appellant’s record, and bearing in mind the need to deter others from committing such offences.

1980 ZLR p61

Lewis JP

Apart from that, the appellant can be said to have brought this misfortune upon his own head. He was allowed into this country again, _A having previously been deported, clearly on condition that he behaved himself. He committed a gross breach of the law in his first offence involving R22 000, to the prejudice of this country. A mere five months later he was again engaging in the same activity. It does not seem to me that the appellant is entitled to any sympathy from this Court. In my view, _B the sentence, if it erred at all, erred on the side of leniency, and I would dismiss the appeal.

Macdonald CJ: I agree.

Davies JA: I agree. _C

Byron Venturas & Travlos, attorneys for the appellant. _D