Makambilwa and Others v S (A1046/06, 142/06) [2009] ZAGPPHC 391 (9 October 2009)

Makambilwa and Others v S (A1046/06, 142/06) [2009] ZAGPPHC 391 (9 October 2009)

The court found that while dealing in drugs is a grave offence deserving of stern punishment, the third appellant was a first offender and the sentence imposed by the Magistrate was at the lower end of the statutory range. The court held that a portion of the sentence should be suspended to reflect the appellant's status as a first offender and the circumstances of the case. Accordingly, the appeal against sentence was upheld to the extent that 3 years of the 8-year imprisonment were suspended for 5 years, conditional on the appellant not being convicted of a similar offence during the period of suspension.

Citation
[2009] ZAGPPHC 391
Parties
Appellant: T Makambilwa; Appellant: M Hadiz L Chinakwe; Appellant: L Chinakwe; Respondent: The State
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
9 October 2009
Case Number
A1046/06, 142/06
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Outcome
Appeal against sentence upheld in part; sentence varied.
Judges
Kemp, Els
Legal Topics
Drug Offences, Sentencing, Suspension of Sentence
Criminal Law Drug Offences Sentencing Suspension of Sentence

Case Brief

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Parties

T Makambilwa

Appellant

M Hadiz L Chinakwe

Appellant

L Chinakwe

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence

Legal Issues

  1. 1 Whether the sentence of 8 years' imprisonment imposed on the third appellant for dealing in drugs was appropriate.
  2. 2 Whether part of the sentence should have been suspended given the circumstances of the third appellant.

Ratio Decidendi

The court found that while dealing in drugs is a grave offence deserving of stern punishment, the third appellant was a first offender and the sentence imposed by the Magistrate was at the lower end of the statutory range. The court held that a portion of the sentence should be suspended to reflect the appellant's status as a first offender and the circumstances of the case. Accordingly, the appeal against sentence was upheld to the extent that 3 years of the 8-year imprisonment were suspended for 5 years, conditional on the appellant not being convicted of a similar offence during the period of suspension.

Court Disposition

Appeal against sentence upheld in part; sentence varied.

Orders

  • The sentence of 8 years' imprisonment imposed on the third appellant is varied: 3 years of the 8 years are suspended for 5 years on condition that the appellant is not convicted of dealing in drugs as described in Schedule 2 part 2 or 3 of Act 140 of 1992 during the period of suspension.