Court name
High Court Main Division
Case number
CA 12 of 2012
Title

Ude v S (CA 12 of 2012) [2013] NAHCMD 149 (07 June 2013);

Media neutral citation
[2013] NAHCMD 149
Coram
Hoff J
Ndauendapo J













NOT REPORTABLE








REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK



APPEAL JUDGMENT



Case no: CA 12/2012








In the matter between:








KEN INEM UDE
...........................................................................................APPELLANT








and








THE STATE
..............................................................................................RESPONDENT








Neutral citation: Ude
v State
(CA 12/2011) [2013] NAHCMD 149 (7 June 2013)








Coram: HOFF J et
NDAUENDAPO J



Heard: 23 MAY 2013



Delivered: 7 JUNE
2013








Flynote: Drug
offences – Cocaine – Dealing in contravention of s 2 (c)
of Act 41 of 1971 – Sentence – Accused a 41 year old
first offender, born in Nigeria, married to a Namibian woman –
Accused having sold on two occasions 276.7644 grams of cocaine for N$
139 006.07 – Sentence of 2 years imprisonment (count 1) and 8
years on count 2 of which 2 years are suspended on the usual
condition and the sentence on count 1 to run concurrently with
sentence on count 2, confirmed on appeal.








Summary: The
appellant was convicted, on his own guilty plea, in the regional
court on two counts of dealing in 276.7644 grams of cocaine in
contravention of s 2(c) of Act 41 of 1971 and was sentenced to an
effective 6 years imprisonment. The appellant was 41 years old and
first offender. A trap was set up for him. He pleaded guilty on two
counts of dealing. Sold the cocaine for N$ 139 006.07. On appeal the
sentence confirmed.










JUDGMENT










NDAUENDAPO J (HOFF J
concurring):








NDAUENDAPO J [1]
On 9 December 2010, the appellant pleaded guilty on two charges of
contravening section 2 (c) read with sections 1, 2 (i) and or 2 (ii),
8, 10, 14 and part II of the schedule Act 41 of 1971, as amended.
The allegations being that on the 27 May 2010 and 28 May
2010 at Ohangwena in the district of Eenhana in the regional division
of Namibia, he did wrongfully and unlawfully deal in dangerous
dependence producing drugs or a plant from which such a drug can be
manufactured, to wit, 0.7644 g of cocaine (count 1) and 276 g of
cocaine (count 2) except admixtures containing not less than 0.1
percent of cocaine calculated as cocaine alkaloid to the value of N$
382.20 and N$ 138 624.50 respectively.








[2] The appellant
consented to the jurisdiction of the Regional Court sitting at
Windhoek. On 24 June 2011 he was sentenced as follows:








Count 1: Two (2) years
imprisonment.



Count 2: Eight (8) years
imprisonment of which two years were suspended for five years on
condition that the appellant is not convicted of an offence of
contravening section 2 (c) of Act 41 of 1971 committed during the
period of suspension. In terms of section 280 (2) of Act 51 of 1977
the court ordered that the sentence imposed on count 1 was to be
served concurrently with the sentence imposed in count 2. He was
therefore sentenced to six years effective imprisonment.








[3] He now appeals
against sentence on the following grounds:








1. It is
respectfully submitted that the Learned Magistrate misdirected
himself in law and/or the facts, alternatively erred in one or more
of the following aspects:








2. That the magistrate
paid mere lip service when referring to the Appellant’s
personal circumstances:








2.1 the fact that he lost
his business;



2.2 the effect which his
arrest and sentence would have on himself, his children and family;



2.3 his age and the fact
that he is a first offender.








3. The magistrate
attached no weight alternatively insufficient weight to:








3.1 that this was a trap
situation;



3.2 that there is no
evidence whatsoever placed before court that appellant was a drug
dealer and that there was any reason whatsoever to have set a trap
for him;



3.3 that if it was not
for the trap set for appellant, he would not have been arrested and
sentenced to mandatory imprisonment;



3.4 that he did not
possess any cocaine whatsoever and needed time to search for the
drugs;



3.5 that the possessor of
the drugs brought same and handed it to the police trap;



3.6 that the possessor of
the cocaine was arrested and charged, but the police and state in
their wisdom decided to withdraw the case against them.








4. The magistrate was
referred to many cases dealing with trap situations but hardly dealt
with and of the authorities submitted by Appellant’s Legal
representative.


















4.1 in sentencing the
appellant the magistrate to such an extend referred to authorities
which deals with ordinary drug cases that he imposed a sentence which
is normally done in normal drug cases where not trap situation is
present.








5. The sentence imposed
is startlingly inappropriate and creates a sense of shock.








6. the magistrate not
once in his reasons for sentence asked the rhetorical question why
was it necessary to set this trap and was it not for the unjustified
trap, would there have been the necessity for a conviction and
sentence?’








The appellant appeared in
person and Mr Nyambe for the respondent.








[4] FACTS AD SENTENCE:
They are succinctly summarised in the heads of counsel for
respondent and they are as follows:









  1. The accused
    testified in mitigation that he was 41 years old, married to a
    Namibian woman with 2 (two) children – 2 (two) years and 4
    (four) years respectively.



  2. He was in custody, trial
    waiting for about a year.



  3. He was born in Nigeria
    and obtained Namibian citizenship through his marriage.



  4. He was running shops in
    Windhoek and Oshikango respectively as his businesses.



  5. He realized between N$
    13 000 and N$ 14 000 of income from the shops after bills were paid.



  6. His wife was not
    employed and is dependent on him.



  7. He maintained the
    children with income from the shops.



  8. He had three employees
    working at his shops in Oshikango and Windhoek respectively.



  9. He alleges that the
    businesses broke down apparently because of his arrest.



  10. The wife and children
    now only survive with support from families.



  11. He alleges that he was
    lured into this transaction by a lady who owed him money for
    clothes, wrist watches and a necklace.



  12. The lady allegedly
    failed to pay him for four to five months despite various demands
    for the money.



  13. She eventually informed
    him that she had a customer looking for cocaine on the understanding
    that the accused would recover the debt from the proceeds of the
    crime. The accused agreed to search for cocaine. After he left the
    lady, she repeatedly phoned him to find cocaine.



  14. He eventually found
    cocaine which was sold and handed to a police trap.



  15. He testified to how the
    dealing took place but inconsistent with what the police officer who
    testified to the facts testified.’









THE LAW








[5] In S v Tjiho 1991 NR
361 at 366 A-B Levy J (as he then was) set out the grounds upon which
the court of appeal will interfere with sentence as follows:








The appeal court
is entitled to interfere with a sentence if:









  1. the trial court
    misdirected itself on the facts or on the law;



  2. an irregularity which
    was material occurred during the sentencing proceedings;



  3. the trial court
    failed to take into account material facts or overemphasized the
    importance of other facts;



  4. the sentence imposed
    is startlingly inappropriate, induces a sense of shock and there is
    a striking disparity between the sentence imposed by the trial court
    and that which would have been imposed by a court of appeal.’









In S v Ndikwetepo and
others NR 319 (SC) Chomba AJA (as he then was) said the following:








‘…the
discretion may be said not to have been judicially or properly
exercised if the sentence is vitiated by an irregularity or
misdirection.’








In S v Pillay, it was
stated that:








the essential
inquiry in an appeal against sentence, however is not whether the
sentence was wrong or right, but whether the court in imposing it
exercised its discretion properly and judicially, a mere misdirection
is not by itself sufficient to entitle the appeal court to interfere
with the sentence, it must be of such a nature, degree, or
seriousness that it shows directly or inferentially, that the court
did not exercise its discretion at all or exercised it improperly or
unreasonably.








[6] The penalty for
dealing in cocaine is stipulated in the Abuse of Dependence Producing
Substances and Rehabilitations Act 41 of 1971, section 2 (d) (i),
provides:



in the case of
a fist conviction for a contravention of any provision of paragraph
(a) or (c), to a fine not exceeding thirty thousand rand or to
imprisonment for a period not exceeding 15 years or to both such fine
and such imprisonment.








[7] Dealing in cocaine is
a serious crime. In S v Sibonyoni 2001 NR 22 at 25 Hoff AJ (as
he then was) said the following: “there can be no doubt that
dealing in cocaine is a serious crime and that drug dealers are
unscrupulous criminals and further that the courts have a duty to
protect members of society from exploitation by these elements but a
court in considering an appropriate sentence must be mindful also of
the personal circumstances of the accused and the maximum penalties
prescribed by the legislature








[8] From the record, it
is very clear that the presiding officer considered the personal
circumstances of the appellant and other relevant factors.



The appellant in his
grounds of appeal further stated that ‘this was a trap
situation’ and that ‘there is no evidence whatsoever
placed before court that appellant was a drug dealer and that there
was no reason whatsoever to have set a trap for him

Unfortunately for the appellant, he pleaded guilty and his appeal is
against sentence and not against conviction and the court is bound by
his notice of appeal against sentence only.








[9] The scourge of drug
abuse is on the increase in our society and the devastating effect of
drug abuse on members of our society is there for everyone to see.
The courts must join forces with law enforcement agencies in
combating that evil by imposing harsh sentences on drug dealers and
by so doing send a strong message to drug dealers that they will be
dealt with severely.








[10] In my view the
magistrate exercised his discretion judicially in sentencing the
appellant and the sentence imposed is not startlingly inappropriate
nor does it induces a sense of shock considering the seriousness of
the crime. In fact the appellant was lucky to have been sentenced as
he was considering that he committed the offence twice and also
considering the sentences imposed in similar cases by this Court.










ORDER










In the result, the appeal
is dismissed.


















----------------------------------



GN Ndauendapo



Judge













----------------------------------



E Hoff



Judge























APPEARANCES








APPELLANT : IN PERSON








RESPONDENT: MR NYAMBE



of the Office of the
Prosecutor General