Court name
High Court Main Division
Case number
HC-MD-CRI-APP-CAL-2019/00086
Case name
Kharuchab v S
Media neutral citation
[2020] NAHCMD 345

Kharuchab v S (HC-MD-CRI-APP-CAL-2019/00086) [2020] NAHCMD 345 (12 August 2020);

Case summary:

Criminal Procedure – Sentence – Dealing in dependence producing substance in contravention of s 2 (a) read with ss 1, 2, (1) 8, 9, 10, 14 and Part 1 of the Schedule of the Abuse of Dependence Producing Substances and Rehabilitation Centre Act 41 of 1971 as amended – Deterrence important due to increase in substance dealing – Message be sent out in order to show intolerance for dealing in substance – But mitigating factors also to be considered – The substances recovered after the arrest – Custodial sentence appropriate in this case – Though Court entitled to interfere wit

Headnote and holding:

The appellant was charged in the Magistrate Court sitting at Karibib with the offence of Contravening s 2 (a) read with ss 1, 2(1) and or s 2 (ii) 8, 10, 14 and Part 1 of the Schedule of Act 41 of 1971 – Dealing in a dependence producing substance.  In the alternative, the appellant faced charges of Contravening s 2 (b) read with s 1, 2 (i) and 2 (ii) 8, 10, 14 and Part 1 of the Schedule of Act 41 of 1971 – Possession of a dependence producing substance to which he pleaded guilty.  The Court proceeded with the s 112 (b) questioning where after s 113 of the Criminal Procedure Act 51 of 1977 as amended was invoked, and the matter proceeded to trial. The appellant was subsequently convicted on the main count of dealing in a dependence producing substance after the trial where after he was sentenced to three years direct imprisonment.

The appellant now appeals against the sentence.  Court of appeal found the trial court to have misdirected itself by over-emphasising the offence and the need to impose deterrent sentence at the expense of other equally compelling mitigating circumstances.   

 

 

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK

 

APPEAL JUDGMENT

 

CASE NO.: HC-MD-CRI-APP-CAL-2019/00086

 

In the matter between:

 

SPINCER KHARUCHAB                                                                                       APPELLANT

 

and

 

THE STATE                                                                                                         RESPONDENT

 

Neutral Citation:  Kharuchab v S (HC-MD-CRI-APP-CAL-2019/00086 [2020] NAHCMD 345 (12 August 2020)

 

Coram:          USIKU J et UNENGU, AJ

 

Heard:            31 July 2020

 

Delivered:     12 August 2020

 

 


ORDER


 

a. The appeal is upheld to a certain extent and the sentence is set aside and substituted with the following sentence:

 

  1. The appellant is sentenced to two years imprisonment of which one year imprisonment is suspended for five years on condition that the appellant is not convicted of the crime of dealing in dependence producing substance or possession thereof, committed during the period of suspension.

 

b. The sentence is antedated to 17 July 2019.

 


APPEAL JUDGMENT


USIKU, J (UNENGU, AJ concurring):

 

[1]        The appellant appeared in the Karibib Magistrate Court on charges of dealing in dependence producing substance in contravention of s 2(a) read with ss 1, 2 (1) 8, 9, 10, 14 and Part 1 of the Schedule of the Abuse of Dependence Producing Substance and Rehabilitation Centre Act 41 of 1971 as amended.  Alternatively the appellant was charged with possession of dependence producing substance contravening s 2 (a) or (b) of the Abuse of Dependence Producing Substance and Rehabilitation Centre Act 41 of 1971 to which he tendered a plea of guilty.  A plea of not guilty was however entered in terms of s 113 of Act 51 of 1977 where after the trial commenced.

 

[2]        The appellant was convicted on the main count of dealing and was subsequently sentenced to 3 years imprisonment.

 

[3]        Ms Malambo appeared on behalf of the appellant whilst Mr Lilungwe represented the respondent.  The Court indeed appreciate all valuable arguments placed before it in this regard.

 

[4]        It is common cause that the appellant filed his notice of appeal dated the 29 July 2019 as reflected by the Ministry of Safety and Security date stamped at the Walvis Bay Correctional Facility, signed by the appellant.

 

[5]        An amended notice of appeal was later filed on the 16 June 2020 accompanied by an application for condonation.

 

[6]        At the hearing of this matter, counsel for the respondent did not oppose the application for condonation as substantial reasons were forwarded by the appellant through his counsel explaining in detail the reason why the appeal was filed out of time.

 

[7]        In the amended notice of appeal the appellant enumerated four grounds of appeal:  namely:

 

‘(1)    That the learned magistrate erred and/or misdirected herself in law and/or facts by overemphasizing the seriousness of the offence at the expense of the personal circumstances of the appellant by not considering or paying service to the fact that the appellant was a first offender aged 36 years old and further erred when she stated that the appellant was involved in continuous unlawful conduct.

(2)    That the learned magistrate erred and/or misdirected herself in law and/or fact by failing to follow the norm set by other courts (superior) when sentencing in cases of a similar nature.

(3)    The sentence imposed is too excessive, shocking, harsh and inappropriate in that it is too severe when regard is had to the nature of the case and the offence committed;

(4)    That the learned magistrate erred and/or misdirected herself in law and/or facts by failing to assist the unrepresented accused in placing sufficient mitigating factors, more particularly the contented wellbeing of the appellant’s minor child and his ability to pay a fine.’

​​​​​​​

[8]        It has been more than once pointed out that the power of the Court of Appeal to ameliorate sentence is a limited one.  The reason being that the trial Court has a judicial discretion and the sentence is not to the discretion of the Court of Appeal, on the contrary in the latter Court’s discretion.  The inquiry is whether it can be said that the trial Court exercised its discretion improperly.

 

[9]        Put differently, it is whether the discretion was not exercised judiciously such that when exercising its discretion to determine the length of the sentencing of imprisonment, the sentencing Court must be guided by what is reasonable.  It is thus required that a sentence to be imposed must satisfy the requirement of justice.

[10]      In casu, the appellant who was a first time offender was sentenced to a term of three years direct imprisonment.  The appellant had tendered a plea of guilty to the alternative charge of possession of dependence producing substance, though the Court was not satisfied that he had admitted to all the elements of the offence charged whereby the Court invoked the provisions of s 113 of the Criminal Procedure Act.  All the substances the appellant was said to have dealt in, were recovered and upon conviction, were declared forfeited to the State.  It was grossly unreasonable for the Court to have imposed a sentence of three years direct imprisonment for a first time offender and that came nowhere near in satisfying the requirements of justice.  It is my considered view that the Court misdirected itself by giving insufficient weight to the appellant’s mitigating factors.

 

[11]      The crime committed is indeed serious, and usually attracts severe punishment, however, the circumstances of this case are such that rehabilitation, as an objective of punishment, deserves to be equally emphasized.  This the sentencing Court had not done but clearly overemphasized the offence at the expense of equally compelling circumstances.  Further, the court a quo could have partially suspended part of the sentence imposed, as a suspended sentence equally has a deterrent effect on the offender.  Thus, there is therefore justification to interfere with the sentence imposed by the trial Court.  This court is of the view that the sentence imposed is so severe and induces a sense of shock.

 

[12]      In the result it is ordered:

 

a. The appeal is upheld to a certain extent and the sentence is set aside and substituted with the following sentence:

 

  1. The appellant is sentenced to two years imprisonment of which one year imprisonment is suspended for five years on condition that the appellant is not convicted of the crime of dealing in dependence producing substance or possession thereof, committed during the period of suspension.

 

b. The sentence is antedated to 17 July 2019.         

 

 

 

______________________

D USIKU

JUDGE

 

 

______________________

E P UNENGU

ACTING JUDGE

 

 

APPEARANCES:

 

For the Appellant:                M Malambo

Sibeya & Partners

Windhoek

                                                                       

 

For the Respondent:            B Lilungwe

Office of the Prosecutor-General

Windhoek