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2014
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[2014] ZAGPPHC 301
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Okafer v S (A719/2013) [2014] ZAGPPHC 301 (28 May 2014)
IN
THE GAUTENG DIVISION OF THE HIGH COURT
PRETORIA,
REPUBLIC OF SOUTH AFRICA
CASE NO:
A719/2013
DATE: 28 May 2014
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
JOHN
OKECHUKWU
OKAFER
....................................................................................................
Appellant
and
THE
STATE
....................................................................................................................................
Respondent
JUDGMENT
Tuchten
J
:
1 The appellant and
two co-accused were charged with four counts of dealing in cocaine,
contrary to the provisions of the Drug Trafficking
and Drugs Act, 140
of 1992. The appellant was also charged with various alternative
counts. He was found guilty on the main counts
in count 2, involving
0,7 gm of cocaine, and count 3, involving 10 tablets containing
cocaine. The two acts of dealing took place
on consecutive days.
2 The convictions
occurred after a carefully planned police operation against a drug
ring operating in Phalaborwa. The evidence
against the appellant was
obtained by the police who, posing as ordinary customers, bought
product from the appellant. The appellant
pleaded not guilty to the
charges against him and a lengthy trial ensued, during which the
appellant, as was his right, challenged
the evidence adduced against
him but did not give evidence himself. After the appellant was
convicted, he chose not to give or
adduce any evidence in mitigation
and was content that his legal representative make submissions from
the bar which included information
as to the appellant’s
personal circumstances. This information was accepted as correct for
purposes of sentence.
3 At the time of his
conviction, the appellant was 33 years old, single and with no
dependents and a first offender.
4
The appellant was sentenced to 5 years imprisonment on each count.
With the leave of the court
a
quo
,
he appeals against the sentences. On his behalf it is submitted that
because the value of the drugs was said to be R2 000 and
the
appellant was a first offender, the sentence was too harsh. No
misdirection on the part of the regional magistrate is suggested.
His
counsel argues that the sentences should run concurrently, thereby
reducing the sentence to an effective five years.
5
I do not agree. The appellant was the visible face of a commercial
operation, carried out for profit, to distribute these drugs
into the
community. One can only speculate about how many lives he and his
associates helped to ruin by the distribution of the
pernicious
substance in which he and his associates dealt but the number cannot
be negligible. Counsel for the appellant referred
to the minimum
sentencing regime applicable to such crimes but I need not go into
that because the court
a
quo
did
not sentence the appellant pursuant to that regime.
6 The evidence
before the court pointed ineluctably towards the conclusion that the
appellant was a career drug dealer. His business
was to be where
potential customers could find him and supply their needs. There is
no indication on the record that the appellant
was motivated to
commit these crimes by anything other than the desire for commercial
gain. The evidence that the quantities involved
were relatively small
is not to my mind of great significance in the present context. The
appellant was a drug dealer. He supplied
product in the quantities
his customers wanted and his capacity to push product into the market
was limited only by his sources
of supply. The appellant was not
convicted of one isolated incident of drug dealing. He made a
business of dealing in drugs, so
the fact that the two offences for
which he was convicted were committed over a short period is in
context not a mitigating circumstance
either. He displayed no
remorse. There is nothing on the record to show that the appellant
has good prospects of rehabilitation,
even with the encouragements
towards rehabilitation provided by the prison authorities.
7 The appellant was
convicted of contravening s 5(b) of the Act. Under s 17(e) read with
s 13(f) he was liable to go to prison for
25 years on each count and,
in addition, to pay a fine entirely in the sentencing court’s
discretion as to amount. This is
an indication of how very seriously
drug dealing is regarded in this country.
8 I do not regard
the sentence as harsh. The appellant will need to undergo a lengthy
period of imprisonment if he is to have any
prospect of
rehabilitating himself as a decent person. The appeal must fail.
9 I make the
following order:
1 The appeal is
dismissed;
2 The convictions
and sentences imposed upon the appellant, John Okechukwu Okafer, are
confirmed.
NB Tuchtem
Judge of the High
Court
22 May 2014
I agree.
SP Mothle
Judge of the High
Court
22 May 2014