WINDHOEK - Judge President Petrus Damaseb said that there is a need for change in the stance of Namibian courts on drug-related cases and to accord the necessary weight to the seriousness of such offences and its prevalence in society.
He said this in relation to a case in the Windhoek Magistrate’s Court where a man Jereme Swatz was sentenced to pay a fine for possession of cannabis in accordance with section 112(1)(a) of the Criminal Procedure Act, which allows the court to impose a fine only.
According to Judge President Damaseb who wrote the judgement in agreement with High Court Judge Christi Liebenberg, it is worrisome that prosecutors thoughtlessly dispose of cases in terms of section 112(1)(a) of the Act merely for the sake of finalising the matter and without having proper regard to the nature of the offence and particulars of the charge. In the present instance, the judges said, the accused was selling cannabis at a primary school and also used some of the learners as dealers.
They further said that by invoking the said section, the court creates the impression that the offence is considered minor and less serious as its sentencing options are now limited to that of a fine.
“It is worrisome that there are instances where matters are finalised in this fashion even where it involves dangerous dependence-producing substances like cocaine and mandrax, containing methaqualone,” the judges stated, adding: “This would undoubtedly send out the wrong message where an accused person’s freedom could readily be regained by the payment of a fine, and it seems to defeat the whole purpose of imposing deterrent sentences.”
The judges further remarked that the objective of punishment in matters of this nature is deterrence and in order to achieve this objective the sentences imposed must be such that the accused is personally deterred from reoffending while at the same time it should serve as a deterrence to would-be offenders.
Judge President Damaseb and Judge Liebenberg further said had the prosecutor in the present case familiarised herself with circumstances in which the offence was committed and that the accused was busy dealing cannabis at the school and not merely found in possession of cannabis, she would have charged the accused according to the facts the state would have been able to prove.
Similarly, the judges said, had the magistrate questioned the accused in terms of section 112(1)(b), she would have explored the circumstances under which the offence was committed and, in all likelihood, have had a fuller picture of the offence charged and responded thereto differently in sentencing.
“In my view the sentence ultimately imposed does not reflect the seriousness of the offence and could hardly be seen as deterrent,” the judge president said and added that a custodial sentence in addition to a fine would have been justified.
The judges further said the recent increase in drug-related cases and particularly the step-up from dependence-producing substances to dangerous dependence-producing substances can no longer be ignored by the prosecution or the courts, and undoubtedly call for intervention.
According to the judges there is a significant increase in the number of review cases relating to drugs in the High Court and it is evident that crimes of dealing in and possession of dangerous and dependence-producing substances have taken on alarming proportions in this jurisdiction.
As from the period January to October 2018 a total of 167 drug-related cases came on review, Judge Damaseb shared.
He said that a clear and unequivocal message should emerge from the courts that crimes of this nature will not be tolerated any longer and sentences will henceforth be appropriately severe.