Court name
High Court
Case number
21 of 2012
Title

S v Okaforudeji (21 of 2012) [2012] NAHC 219 (30 July 2012);

Media neutral citation
[2012] NAHC 219
Coram
Miller AJ
Parker J





CASE NO












Not
Reportable’








CASE NO.: CA 21/2012













IN THE HIGH COURT OF
NAMIBIA








MAIN DIVISION, HELD AT
WINDHOEK













In the matter between:













CHUKWUJEKWU NWOYE
OKAFORUDEJI …...............................................Appellant








and








THE STATE
…..............................................................................................Respondent













CORAM:
PARKER, J
et MILLER, AJ








Heard on: 2012 July 30



Delivered on (ex
tempore)
: 2012 July 30



_________________________________________________________________








APPEAL JUDGMENT



_________________________________________________________________


MILLER
AJ
: [1] The appellant in this matter who is a 35 year old
male was convicted upon his plea of guilty by the Regional Court
Magistrate in Windhoek on a charge of contravening section 2(c) of
Act 41 of 1971.






[2]
In substance, allegation against the appellant was that on 25 of
February 2010, he was found to be dealing in one thousand and
twenty-seven (1027) grams of cocaine. The facts admitted by the
appellant and established at the trial are to the effect that the
appellant acted as a courier conveying the drugs found in his
possession from South America with Angola being his final
destination.






[3]
The Magistrate in a reasoned judgment as far as sentence was
concerned, imposed at the conclusion thereof a sentence of 10 years
imprisonment of which 2 years were suspended for 5 years on condition
that the appellant was not convicted again of contravening section
2(c) of Act 41 of 1971 committed during the period of suspension.






[4]
It is against that sentence that the appellant appeals to this court.
We are indebted to counsel for the appellant and counsel for the
State for the comprehensive and instructive heads of argument they
filed.






[5]
It is accepted and almost trite that this court sitting as a Court of
Appeal does not have an unfettered discretion to interfere with
sentences imposed by trial courts. This court’s power to
interfere is confined to instances where there are irregularities and
misdirections on the part of the Magistrate who imposed the sentence
or where the sentence is in the circumstances shockingly
inappropriate.






[6]
Mr Namandje, who appeared for the appellant before did not, seek to
pursue any argument based on misdirection on part of the Magistrate
and in my view correctly so. It is apparent from a reading of the
Magistrate’s judgment that he adopted a balanced approach to
the question of sentence. Mr Namandje instead confined his
submissions to one that the sentence imposed by the Regional
Magistrate concerned was shockingly inappropriate and during argument
before us he appeared to suggest that this is a case were a fine
ought to have been considered by the Regional Magistrate.






[7]
I do not to agree, with that submission if that is indeed what it
amounted to. The international trafficking in drugs between States
and continents is not only a Namibian problem. It is an,
international problem and it behoves courts in Namibia, when persons
are found within the jurisdiction of this court engaged in smuggling
of drugs internationally, to make it plain that the courts will also
do their duty in the international fight against drug trafficking.
The fight against drug trafficking is an international one and one
must be slow to impose sentences that will discourage those drug
enforcement agencies involved in drug combating internationally by
imposing sentences that may create the impression that Namibia is a
safe haven where drugs can be distributed into Namibia and
neighboring states.






[8]
Mr Namandje makes some point of the fact the State seems to suggest
that the appellant was a Nigerian national who had brought drugs into
Namibia. That fact was not found by the learned magistrate and we
accept that the appellant has admitted, that although or Nigerian
origin, he was a Namibian permanent resident at the time. It is not
so much in our view the nationality of the particular drug courier
that one sanctions but the fact of the activity that he was engaged
in.






[9]
Mr Namandje lastly referred this court to the judgment in The
State v Daniel Joao Paulo & Another
which is an unreported
judgment of this court on 9 February 2011, in which the High Court in
that case imposed sentences less than imposed by the Magistrate in
this particular case. The Daniel Joao Paulo case can be
distinguished from this case on the basis that the judges who wrote
the judgment took into account that the accused in that case had
already spent some 3 years in custody before the sentence was imposed
which is clearly not the case here. In this the appellant was in
custody for no longer than 6 months before he was sentenced.














[10]
In all the circumstances, I do not find the sentence to be shockingly
inappropriate and on that basis the appeal against sentence be
dismissed.















_________________



MILLER, AJ








I agree.


















_________________



PARKER, J


















COUNSEL ON BEHALF OF
THE APPELLANT:
Mr S Namandje








Instructed by: Sisa
Namandje & Co. Inc.


















COUNSEL ON BEHALF OF
THE RESPONDENT:
Mr J E Eixab








Instructed by: The
Office of the Prosecutor-General