S v Hiefela (31 of 2011) [2012] NAHC 153 (21 June 2012);
CASE NO.: CA
31/2011
IN THE HIGH COURT OF NAMIBIA
In the matter
between:
SALVADOR ANGELO HIEFELA
…..............................................APPELLANT
versus
THE STATE
…......................................................................RESPONDENT
CORAM:
NDAUENDAPO, J et SIBOLEKA, J
Heard on: 2012
June 11
Delivered on:
2012 June 21
________________________________________________________________________
APPEAL JUDGMENT
SIBOLEKA, J
[1] On 11 June
2012, the Court after carefully considering arguments from both
counsel and the documents filed of record allowed the appeal to
succeed, and made the following order:
[2] The sentence
imposed by the learned Regional Court Magistrate, Rundu is set aside
and substituted with the following:
Five years’
imprisonment of which three years’ are suspended for five
years’ on condition that the accused is not convicted of
possession or dealing in cannabis in contravention of section 2(a) or
(b) of the Abuse of Dependence – Producing Substances and
Rehabilitation Centres Act, Act no. 41 of 1971, committed during the
period of suspension. The sentence is antedated to 18 June 2010.
[3] We had
indicated then that our reasons will follow later, they are now
available and are as follows:
[4] The appellant,
an Angolan national and police officer in Angola was convicted on
possession of 29kg cannabis in contravention of section 2(b) of Act
41 of 1971 as amended and was sentenced to five years’
imprisonment in the Regional Court, Rundu.
[5] He now appeals
against the sentence.
[6] When the
appeal appeared before us for hearing Mr. Greyling acted for the
appellant and Mr. Nyambe for the respondent. The Court wishes to
express its gratitude to both counsel’s valuable heads of
argument in this matter. The appellant was convicted on 17 June 2010
and sentenced on 18 June 2010.
[7] By agreement
between both counsel the application for condonation for the late
filing of the appelant’s amended notice of appeal was not
opposed. The parties proceeded to argue the matter on the merits.
The grounds of
appeal are as follows:
“AD
THE SENTENCE:
The
Learned Magistrate failed to consider alternatively did not add
sufficient weight to the following: that –
the
Appellant was a first offender;
the
Appellant is a father of 6 children;
four
of the children are in school, and the other two are still infants;
the
Appellant is the sole breadwinner of the family;
the
Appellant is an Angolan resident and will lose his employment with
the Government of Angola if an custodial sentence are to be
imposed;
the
implications on Appellant’s family members if a custodial
sentence are to imposed;
the
Appellant pleaded guilty;
prior
to sentencing, Appellant was kept in police custody for
approximately 1 (one) month and 24 (twenty four) days;
the
Appellant had nothing financially to gain from the offence, and his
motive to commit the offence was to take care of his farm stock,
which in terms of Angolan law is not a criminal offence.
The
Learned Magistrate erred and/or misdirected himself by
over-emphasizing the following aspects:
a
relative large quantity of cannabis at the expense of the
Appellant’s personal circumstances;
the
seriousness of the offence and the interest of the society;
the
manner in which the offence was committed;
the
extent Appellant used to conceal the cannabis;
that
any other form of punishment apart form a custodial sentence, would
cast the administration of justice in disrepute;
that
due to the penalty clause, the offence should be viewed in a very
serious light.
By
inserting the following as the new paragraph 3 of Appellant’s
Notice of Appeal:
The
Learned Magistrate erred in considering the following to be
aggravating circumstances, alternatively lent too much weight to it
in that:
the
statement by the prosecutor that Appellant used his position as a
police officer to conceal the cannabis, notwithstanding that no
evidence was led to support such statement;
the
statement by the prosecutor that goats and cattle can not be
treated by cannabis, as evidence was led to support such statement,
and the prosecutor failed to cross-examine the Appellant on such
evidence ;
the
statement by the prosecutor that cannabis are harmful to the youth
and society, given the peculiar circumstances present in this
matter;
the
statement by the prosecutor that due to the penalty clause, the
offence should be viewed in a very serious light;
the
evidence of Sgt. Linus Mbala that the cannabis were set to be
transported to Windhoek, notwithstanding the fact that Appellant
pleaded guilty of possession and not that of dealing in cannabis;
the
evidence of Sgt. Linus Mbala regarding the street value of the
cannabis, notwithstanding the fact that Appellant pleaded guilty of
possession and not of dealing in cannabis;
that
the value of the cannabis outweigh the maximum fine of N$20,000.00
and thus a custodial sentence is therefore inescapable;
the
evidence of Sgt. Linus Mbala in respect of cannabis statistics,
without informing the undefended Appellant that the Learned
Magistrate intended considering during sentencing the said
statistics, and the Appellant was therefore not afforded the
opportunity to lead evidence in respect thereof, or to present
argument to the trial Court;
the
evidence of Sgt. Linus Mbala in respect of cannabis cases and
sentences imposed by the courts, without soliciting in depth
evidence from Sgt. Mbala as to the prevailing circumstances of each
particular case;
That
the sentence passed by the learned Magistrate in general was
shockingly inappropriate.”
[8] Looking at all
the above grounds of appeal the main contention of the appellant is
that the five years’ imprisonment imposed on him by the
Regional Court Magistrate in Rundu is according to him “shockingly
inappropriate”.
[9] Briefly the
circumstances of this case were that the appellant was charged with
dealing in cannabis as the main count. His plea of guilty on the
alternative (possession) was accepted.
[10] He mitigated
under oath in the Court a quo that he transported the cannabis
from Minonje in Angola to treat his goats at Mayongora here in
Namibia. During cross-examination he confirmed that he packed the
cannabis, concealed it in Omo boxes to create an impression that it
was not cannabis. Indeed the officers on both sides at the border
thought it was Omo, and they allowed the parcel into Namibia. At
Rundu the Appellant marked the cannabis boxes as CD player discs. He
told Parcel Force officials where he handed the parcel to be
couriered that the contents were playing discs. However, when one of
the officers confronted him about a smell coming from the boxes, and
whether the contents were indeed disc players and not cannabis he ran
away and was later caught and arrested.
[11] In my view
when regard is had to the way the Appellant had carefully planned the
shipment of the cannabis from Angola into Namibia as alluded to
above, coupled with the fact that as a police officer he is required
to guard, protect, and arrest those who possess cannabis, this Court
does not view the five years’ sentence to such a degree that it
can be described as “shockingly inappropriate”. Instead
it only finds it to be just a little bit harsh for a thirty year old
first offender, who pleaded guilty, has six children, was convicted
of possession and not dealing in cannabis.
[12] Having
considered the aforementioned observations, and taking the mitigating
and aggravating factors into account it is my considered view that
the learned Magistrate should have suspended part of the sentence.
This would give the Appellant an opportunity to re-consider his
position and stay away from dependence producing substances.
[13] One of the
factors that may persuade a Court of Appeal to interfere with
sentence is where as it is in this matter that the trial Court has
failed to take into account a material fact, or has overemphasized
the importance of another factor at the expense of the other. (See S
v Tjiho 1991 NR 361 (H) at page 366 A-B.)
[14] It is my
considered view that the learned Magistrate was to a certain extent
harsh, in that he overemphasized the seriousness of the offence and
did not give sufficient attention to the fact that the accused was
only a first offender, convicted on the alternative to dealing in
cannabis. The five years’ sentence, in my view, would have been
appropriate for dealing in cannabis even to a first offender such as
the Appellant.
[15] In S v
Scont 1969(1) SA 545 ECD, the Appellant, a first offender,
pleaded guilty, was convicted for unlawful possession of two firearms
inherited from his late father for which he neglected to legalize his
possession. The Magistrate’s Court sentenced him to R200.00 or
six months imprisonment. Following the normal procedure, the case was
sent on review and was confirmed as being in accordance with justice.
In the meantime an appeal had been noted against the severity of the
sentence. Later the Magistrate realized that the Appellant was
wrongly charged and that the correct charge does not provide for an
option of a fine. He was also not aware of the pending appeal and as
such he only advised the Registrar in his covering letter that the
fine be deleted by a Reviewing Judge, and that was accordingly done.
[15.1] The effect
of the deletion was that the appellant was sentenced to six months
without an option of a fine. The Court stated the following regarding
first offenders at page 547 F-G:
“It
is a well-known and a well-recognized principle which is constantly
adhered to and followed in our Courts, that a first offender,
particularly one who is no longer a young man and has led a blameless
life, who has a clear record should not easily or lightly be sent to
goal without the option of a fine. The underlying principle would
appear to be that persons of that nature who have demonstrated by
their way of life that they are law abiding citizens should not
lightly be sent to goal. This is a salutary principle and one which I
think ought to be followed even in case of this nature where the
Legislature regard the crime as a serious one.”
[16] For the above
reasons the appeal against sentence succeeded.
___________________
SIBOLEKA, J
I agree.
___________________
NDAUENDAPO, J
COUNSEL ON
BEHALF OF THE APPELLANT: Mr. GREYLING
INSTRUCTED BY:
GREYLING & ASSOCIATES
COUNSEL ON
BEHALF OF THE RESPONDENT: ADV. NYAMBE
INSTRUCTED BY:
THE OFFICE OF THE PROSECUTOR-GENERAL