Court name
High Court
Case number
62 of 2005
Title

S v Klazen (62 of 2005) [2012] NAHC 64 (14 March 2012);

Media neutral citation
[2012] NAHC 64
Coram
Hoff J

















NOT
REPORTBALE



CASE
NO: CA 62/2005











IN
THE HIGH COURT OF NAMIBIA











In
the matter between:















GEORGE
KLAZEN
….............................................................................................APPELLANT











and










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



















CORAM:
HOFF, J















Heard
on: 323 September 2005











Delivered
on: 23 September 2005 (Ex tempore)











Reasons
on: 14 March 2012







______________________________________________________________________



APPEAL
JUDGMENT











HOFF,
J
: [1] The appellant was convicted in the magistrate’s
court Karasburg for dealing in a prohibited dependence –
producing drug (1,772 kg of cannabis) and sentenced to 10 years
imprisonment.







[2]
The appellant subsequently appealed against sentence only. Mr P
McNally of the firm Lentin, Botma & van den Heever appeared on
behalf of the appellant and Ms de Villiers appeared on behalf of the
respondent. The appeal was upheld on 23 September 2005. The sentence
was set aside and substituted with the following sentence:







A
fine of N$5 000.00 or 18 months imprisonment plus a further 18 months
imprisonment suspended
in
toto

for a period of 3 years on condition appellant is not convicted of
contravening section 2(a) of Act 41 of 1971 committed during the
period of suspension.”







[3]
Ms de Villiers in her heads of argument as well as her submissions in
Court referred to a number of similar cases comparing the sentences
imposed in those cases with the sentence imposed in this matter. She
conceded that the sentence imposed by the magistrate is shockingly
inappropriate and that the appeal should succeed. A period of 5 years
imprisonment of which 2 years imprisonment are suspended on certain
conditions was suggested as an appropriate sentence.







[4]
Mr McNally also referred this Court to a number of similar cases and
the sentences imposed in these cases and suggested that an
appropriate sentence would be a fine with an alternative sentence of
imprisonment.







[5]
The appellant pleaded guilty in the Court a quo. It appears
from the questioning by the magistrate that the appellant was found
in possession of dagga. No sale of dagga occurred but the dagga was
possessed with the intention to sell it. The appellant was a first
offender, aged 27 years, was self-employed and married with no
dependants.







[6]
It is apparent from the reasons for sentencing that the magistrate
was influenced by the following factors:



(a)
the quantity of dagga;



(b)
the abhorrence of society in this type of offence; and



(c)
the prevalence of the offence in the district.







[7]
If one compares the sentence imposed in this instance with the
sentences imposed in cases involving much larger quantities of dagga
the conclusion is inevitable that an inappropriate long term of
imprisonment had been imposed.







[8]
In S v August 2005 (2) NCLP 16 at p. 20 – 21 Damaseb J
(as he then was) stated the following:







It
is trite law that sentencing is pre-eminently a matter for the trier
of fact and that a Court on appeal will interfere only where a
misdirection had taken place on the facts or the law; if a material
irregularity occurred during the proceedings; if material facts had
not been taken into account or one factor or other relevant to
sentencing had been improperly over-emphasized at the expense of
others equally relevant to sentencing; or if the sentence imposed is
startlingly inappropriate or a striking disparity between that which
would have been imposed by the Court of appeal.
S
v Tjiho

1991 NR 361 HC at 366 A – C. This approach has been endorsed by
the Namibian Supreme Court in, amongst others
S
v Ndikwetepo and Othe
rs
1993 NR 319 (SC) at 322 – 323, and in
S
v Shapumba

1999 NR 342 (SC) at 344 I – J and 345 A – B.”







[9]
In S v Mlambo 1997 NR 221 the appellant dealt in 36,102 kg of
dagga. Strydom JP (as he then was) stated the following on 223 G –
H:







Bearing
in mind the aforegoing, the personal circumstances of the accused and
the fact that she is a first offender, the sentence of 10 years
imprisonment of which two years are suspended, seems to me
unreasonable and as set out previously it seems to me from the
magistrate’s reasons that the quantity involved was
over-emphasised to the detriment of the personal circumstances and
other mitigating factors of the appellant.”







[10]
In this matter the appellant was found in possession of 34 kg of
dagga less than in Mlambo, nevertheless a heavier sentence was
imposed.



In
Mlambo on appeal the sentence of 10 years imprisonment of
which 2 years imprisonment were suspended was reduced to 6 years
imprisonment of which 2 years imprisonment were suspended on certain
conditions.







[11]
In S v Khararoses 2005 (2) NCLP 81 Mainga J quoted with
approval from the unreported judgment of this Court in Jerro
Tsamaseb v The State
and stated at p. 83 that presiding officers
should not sentence in a vacuum, but must acquaint themselves with
the sentences imposed by other officers in similar and related cases.







[12]
In S v Kramer and Others 1991 (1) SACR 25 Nm at 36 F O’Linn
J (as he then was) pointed out that a sentence out of line with
comparable sentences in recent years would only be justified if
special aggravating factors are established.







[13]
In respect of the issue of abhorrence referred to by the magistrate
the remarks of White J in S v Nkombini 1990 (2) SACR (Tk) at 469 are
instructive, where he remarked as follows:







I
come now to the first offender who is convicted of dealing in a very
substantial quantity of dagga. Magistrates must be careful not to let
their natural indignation override their better judgment in such
cases. The abhorrence we have for the drug dealer must not induce us
to impose inhuman sentences.”







[13]
I am of the view that the magistrate over-emphasised the quantity of
the dagga and the prevalence of the offence at the expense of the
personal circumstances of the accused.



The
emphasis on abhorrence of society was likewise over-emphasised
resulting in a harsh sentence. The sentence imposed is furthermore
out of line with comparable sentences imposed in recent years.







[14]
I am of the view that as a result of these irregularities (referred
to supra) the magistrate imposed a startlingly inappropriate
sentence under the circumstances of this case.







[15]
These then are the reasons why the sentence imposed by the magistrate
was set aside and substituted with an appropriate sentence.























_________



HOFF,
J:



















































ON
BEHALF OF THE APPELLANT: MR McNALLY











Instructed
by: LENTIN, BOTMA & VAN DEN HEEVER















ON
BEHALF OF THE RESPONDENT: ADV. DE VILLIERS











Instructed
by: OFFICE OF THE PROSECUTOR GENERAL