Top judges jolt magistrates, prosecutors over slack handling of drugs cases

22 February 2019 · Carmel Rickard

TWO high court judges in Namibia have strongly criticized magistrates and prosecutors in that country’s lower courts for not taking drug abuse offences seriously enough. The two judges, one of them Judge President Petrus Damaseb, were reviewing the conviction and sentence of a drug dealer who had been selling cannabis to children at a primary school. After the prosecution put to him the count of possession only – and not the second count of dealing – the prosecutor proposed that he be dealt with under a section that limits sentence to a fine. The judges said the purpose of their strongly-worded judgment in the case was to emphasise to prosecutors and magistrates “the need to reflect on the approach currently adopted in the lower courts which, unfortunately, often operates against the interests of justice.” The judges, who said they confirmed conviction and sentence only reluctantly, urged that a clear message should now emerge from the court that crimes of this nature would no longer be tolerated and that sentences would from now on be “appropriately severe”.

This article first appeared in Legalbrief

Read the judgment here

THE shocking case of Jereme Swatz could be a turn-around moment in the way Namibian courts deal with drug offenders if Judge President Petrus Damaseb and Judge Christie Liebenberg have their way.

Reviewing how the Swatz matter had played out in the magistrates court, the two judges made a strongly worded plea: prosecutors and magistrates should realise that the way they were handling drug charges often operated against the interests of justice, with the Swatz matter being a case in point.

Swatz orginally appeared in court on two counts - possession and dealing in dependence-producing substances. When he first appeared in court the prosecutor told the magistrate that the state was strongly opposed to bail because Swatz had been trying to sell drugs to children at a primary school in Windhoek.

Backing this view was a letter from the school also strongly against bail. The principal said the school had a legal responsibility to provide a safe environment for its learners and teachers and that the actions of Swatz had to be condemned in the strongest terms. It was of particular concern when the lives of children and staff were endangered by providing drugs to them, and where the accused “used minors as dealers”.

When the case was called three days later it came before “a differently constituted court”. This time, only the count of possession was put to Swatz. After he pleaded guilty the prosecutor proposed that provisions of the Criminal Procedure Act be invoked, which attract a fine rather than a more serious sentence. The magistrate obliged and convicted him on his plea.

It was only during mitigation of sentence that the court referred to the letter from the school which spelled out what Swatz had actually done and the danger he posed. Passing sentence, the magistrate then went on to mention the increasing prevalence of such crimes and their impact.

The two judges said it was true that such crimes were far more prevalent, with a considerable increase in the number of review matters before the high court. In the first 10 months of this year, 167 drug related cases came on review, to which had to be added the fact that not all such cases ended up with reviewable sentences. Clearly such cases had grown to “alarming proportions”.

Sentences had to deter the accused from reoffending and deter others from committing the same crime. But if cases were “thoughtlessly disposed of” in terms of a section that allowed for fines only, “merely for the sake of finalizing the matter”, and without proper consideration of each individual case, it meant that sentences were not actually a deterrent. Where these sections were routinely involved, the impression was created that the offence was considered a minor matter. Even cases involving cocaine and mandrax were handled in this way, and sent out the wrong message to an accused that freedom “could readily be regained” by paying a fine. This seemed to “defeat the whole purpose of imposing deterrent sentences”.

In this case, if the prosecutor had familiarized herself with the circumstances of the offence, namely that he was dealing at a school and not merely found “in possession”, then she could have charged him according to the facts that the state could prove. And if the magistrate had questioned the accused, she would have explored the circumstances of the offence and gained a fuller picture. This in turn would have led to a different sentence. Judge Liebenberg said that in his view the sentence ultimately imposed did not reflect the seriousness of the offence “and could hardly be seen as a deterrent”. A custodial sentence, perhaps in addition to a fine, would have been justified.

Neither the prosecution nor the courts could any longer ignore the increase in drug related cases, and it was the “considered opinion” of the two judges that there was a “dire need” for change in the way the courts dealt with such matters so that proper weight was given to the seriousness of the offence.

“All possible evidence should be submitted to place the presiding officer in the best position to fully appreciate the offence before court and to impose an appropriate sentence.”

While the personal circumstances of the accused should be given the necessary weight, “the nature and extent of the crime, as well as the need of society to root out the evil of drugs … should equally be given proper consideration.”

Given the background of how poorly Swatz’s case had been handled, his conviction and sentence were only “reluctantly” confirmed, said the court.

Carmel Rickard

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