16
R
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT (SENTENCING)
Case no: CC 10/2020
In the matter between:
THE STATE
and
GRANT NOBLE ACCUSED ONE
DINATH AZHAR ACCUSED TWO
Neutral citation: S v Noble and Another (CC 10/2020) [2022] NAHCMD 536 (06 October 2022)
Coram: SIBEYA J
Heard: 16 September 2022
Delivered: 06 October 2022
Flynote: Criminal Procedure – Sentence – Dealing in cocaine in contravention of s 2(c) of the Abuse of Dependence-Producing Substances and Rehabilitation Centres Act, Act 41 of 1971 as amended and further read with section 332(5) of the Criminal Procedure Act, Act 51 of 1977 – Accused one’s negligible and old previous conviction afforded very little weight – For accused two to be a first offender at sixty six years old is a weighty mitigating factor – Society calls for severe sentences – Society seeks protection from drugs from the courts – Lengthy custodial sentences are inevitable.
Summary: On 25 August 2022, this court convicted both accused one and two on the charge of contravening section 2(c) read with sections 1, 2(i), and 2(ii), 8, 10, 14 and Part II of the Schedule of the Abuse of Dependence-Producing Substances and Rehabilitation Centres Act, Act 41 of 1971 as amended (the Drugs Act) and further read with section 332(5) of the Criminal Procedure Act, Act 51 of 1977 (the CPA) for dealing in dangerous dependence-producing drugs (Cocaine).
Held that, dealing in cocaine is a very serious offence which is prevalent in our country. The several number of cases of cocaine in our jurisdiction is indicative of the prevalence of dealing in cocaine. Cocaine is listed as a dangerous dependence-producing drug, while cannabis, for example, is listed as a prohibited dependence-producing drug. This makes cocaine a dangerous drug.
Held that, it is settled law that in order to arrive at a just sentence, courts must engage in a balancing exercise where all factors necessary for sentencing are balanced while considering the crime, the offender and the interest of society as well as mercy.
Held further that, time spent in custody pending trial should be judicially considered in mitigation, but there is no mathematical calculation to the effect of such time on sentence.
Held further that, Accused one and two are sentenced 12 (twelve) years’ imprisonment (for dealing in cocaine) of which 5 (five) years are suspended for a period of 5 (five) years on condition they are not convicted of the offence of contravening section 2(c), 2(d) read with sections 1, 2(1) and/or 2(ii), 8, 10, 14 and Part II of the Schedule, of Act 41 of 1971, committed during the period of suspension.
ORDER
___________________________________________________________________
1. Accused one - For contravening section 2(c) read with sections 1, 2(i), and 2(ii), 8, 10, 14 and Part II of the Schedule of the Abuse of Dependence-Producing Substances and Rehabilitation Centres Act, Act 41 of 1971 as amended and further read with section 332(5) of the Criminal Procedure Act, Act 51 of 1977 – Dealing in dangerous dependence-producing drugs (Cocaine) – 12 (twelve) years’ imprisonment of which 5 (five) years are suspended for a period of 5 (five) years on condition that you are not convicted of the offence of contravening section 2(c), 2(d) read with sections 1, 2(1) and/or 2(ii), 8, 10, 14 and Part II of the Schedule, of Act 41 of 1971, committed during the period of suspension.
2. Accused two - For contravening section 2(c) read with sections 1, 2(i), and 2(ii), 8, 10, 14 and Part II of the Schedule of the Abuse of Dependence-Producing Substances and Rehabilitation Centres Act, Act 41 of 1971 as amended and further read with section 332(5) of the Criminal Procedure Act, Act 51 of 1977 – Dealing in dangerous dependence-producing drugs (Cocaine) – 12 (twelve) years’ imprisonment of which 5 (five) years are suspended for a period of 5 (five) years on condition that you are not convicted of the offence of contravening section 2(c), 2(d) read with sections 1, 2(1) and/or 2(ii), 8, 10, 14 and Part II of the Schedule, of Act 41 of 1971, committed during the period of suspension.
3. In terms of section 8(1)(a) of the Abuse of Dependence-Producing Substances and Rehabilitation Act, Act 41 of 1971, I declare the 412 kilograms of cocaine forfeited to the state.
4. In terms of section 8(1)(b) of the Abuse of Dependence-Producing Substances and Rehabilitation Act, Act 41 of 1971, I declare the boxes of photo copy papers imported together with the cocaine into Namibia forfeited to the state.
SENTENCE
___________________________________________________________________
SIBEYA J:
Introduction
[1] On 25 August 2022, this court convicted both accused one and two on the charge of contravening section 2(c) read with sections 1, 2(i), and 2(ii), 8, 10, 14 and Part II of the Schedule of the Abuse of Dependence-Producing Substances and Rehabilitation Centres Act, Act 41 of 1971 as amended (the Drugs Act) and further read with section 332(5) of the Criminal Procedure Act, Act 51 of 1977 (the CPA) for dealing in dangerous dependence-producing drugs (Cocaine).
[2] The accused persons were found not guilty on the alternative charge of possession of dangerous dependence-producing drugs in contravention of section 2(d) read with sections 1, 2(i) and 2(iv), 7, 8, 10, 14 and Part II of the Schedule of the Drugs Act. The accused persons were further found not guilty on the charge of money laundering in contravention of section 4(b)(i) read with sections 1, 7, 8 and 11 of the Prevention of Organised Crime Act, Act 29 of 2004 (the POCA).
[3] Both accused persons persisted in their innocence to the charge of dealing in drugs (cocaine). After hearing evidence in a drawn out trial, this court found that the state proved the guilt of both accused persons on the charge of dealing in drugs (cocaine) beyond reasonable doubt.
[4] The court is presently duty-bound to pass a sentence to the accused persons that is just and befitting of the prevailing circumstances of this matter.
[5] During sentencing proceedings, Mr Itula appeared for the state while Mr. Ntinda appeared for both accused persons.
The law applicable to sentencing
[6] The well beaten path of sentencing guidelines are crucial during sentencing. I, therefore, take into account the celebrated triad factors of sentencing.1 These factors are: the crime, the offender and the interests of society. The court, thus, has a duty to consider during sentencing, the offender, his age and personal circumstances, together with the crime and the interests of society.2
[7] As reminded in S v Khumalo,3 courts should consider the fourth factor which is the element of mercy. Mercy should, however, not constitute misplaced pity. It was held in S v Sparks and Another,4 that punishment must fit the criminal, the crime, be fair to society, and be blended with a measure of mercy according to the circumstances. The above-mentioned factors must be considered together with the main purposes of punishment, namely: deterrent, preventative, reformative and retributive.5 This court, in the quest to determine the appropriate sentence, will consider the aforesaid triad factors and the different purposes of punishment.
[8] It is settled law that in order to arrive at just sentences, courts must engage in an assessment exercise where all factors necessary for sentencing are balanced. It has, however, become trite law that in evaluating the different factors relevant to sentencing it may be unavoidable to emphasise one factor at the expense of the others.6
The personal circumstances of the accused persons
[9] With the above principles in mind, I consider the circumstances of the matter commencing with the personal particulars of the accused persons. The accused persons did not testify under oath in mitigation and called no witnesses. Their personal circumstances were placed on record by Mr Ntinda.
[10] Mr Ntinda stated that accused one, is a 40 year old male. He has a daughter aged 20 years old. She has suffered from mental illness ever since she was 15 years old. She receives psychiatric counselling. Prior to his arrest, accused one was responsible for the maintenance of his daughter. His parents are pensioners, both aged around 61 years old. Before his arrest, he paid for and serviced his parents’ housing bond. Whilst in custody, accused one got engaged to his fiancé in November 2021 but is unable to get married due to his detention.
[11] Mr Ntinda submitted that at the time of his arrest, accused one worked for Oriental Tobacco Namibia where he received a monthly remuneration in excess of N$20 000.
[12] Mr Ntinda submitted that accused one was arrested on 15 June 2018 and has since been in custody for a period of four years and three months. He invited this court to consider the period spent in custody as a weighty mitigating factor. Mr Ntinda submitted further that accused one was, in the past, convicted of a negligible offence of possession of dependence-producing drugs (cannabis). Mr Ntinda submitted further that accused one instructed his legal team to express remorse and apologise for the crime committed.
[13] On behalf of accused two, Mr Ntinda submitted that accused two is a 66 year old married man. He has five children aged between 19 and 40 years old. Prior to his arrest on 15 June 2018, accused two was responsible for maintaining his last two children who attended a private school including paying their school fees. His family solely depended on him for their maintenance. Following his arrest, the school fees became unaffordable resulting in the aforesaid two children being removed from school. His wife was unable to pay rent and was subsequently evicted. She has since moved to her mother’s house in Otavi. Accused two’s parents are deceased.
[14] Subsequent to his arrest on 15 June 2018, Accused two was released on bail by this court on 15 September 2021. Accused two was remanded back in custody after his bail was cancelled by order of this court on 25 August 2022 (the date that he was convicted). Accused two, therefore, spent about three years and three months in custody pending trial.
[15] Mr Ntinda submitted that accused two was a successful businessman for several years. He later almost lost all his assets until he acquired stable employment as a driver prior to his arrest. Accused two at his advanced age is a first offender. It was submitted further that accused two suffers from high blood pressure, arthritis and an enlarged prostate gland and he has suffered prolonged distress as a result of these criminal proceedings. It was submitted that the mitigating factors for accused two carry a lot of weight and the court should accord sufficient weight thereto.
[16] Mr Ntinda drew the court’s attention to a decision of the Supreme Court in Harry De Klerk v The State,7 for his argument that a conviction at an advanced age may spare the offender from imprisonment, where Maritz AJA remarked as follows:
‘[26] It counts heavily in favour of the appellant that he was a first offender at the age of 39. Generally, a Court will be reluctant to imprison a first offender if the same sentencing objectives can be achieved by the imposition of another adequate punishment ( S v Seoela, 1996 (2) SACR 616 (O) at 620C-D).The ratio behind this approach is that accused persons falling within that category of offenders do not have a demonstrated record criminal inclinations; that they are more likely to be rehabilitated by an appropriate sentence than hardened criminals; that it may well be the only crimes they would commit during their lifetimes and that there is no apparent reason to fear that they will become repeat offenders.’
[17] The above sentencing principle guides courts not only to seek to pass an imprisonment sentence on first offenders but to also asses the merits of each matter in order to determine whether the relevant objectives of sentencing can be obtained by sentencing a first offender to any other sentence other than imprisonment. Sentences should strictly be merit based, while according due weight to first offenders.
[18] It transpired during the hearing that the previous conviction of accused one for possession of dependence-producing drugs (cannabis) was delivered on 23 March 2012 and he was sentenced to a fine of N$300 or 30 days’ imprisonment. In this respect, Mr Itula conceded, that the said previous conviction is more than 10 years’ old and, therefore, the weight to be attached to it has diminished. I find that the concession was correctly made. This is premised on the fact that the said previous conviction is not only negligible but it is over 10 years old. The weight to be attached to previous convictions shrinks with the passage of time. In casu, the fact that the previous conviction is for a negligible offence further diminishes the weight to be attached to it. Very little weight will, therefore, be afforded to the previous conviction of accused one.
[19] Being a first offender, however, does not serve as a passport for one to avoid imprisonment. Each matter must be decided according to its peculiar facts.
The crime
[20] The accused persons were convicted for dealing in dangerous dependence-producing substances for importing 412kg of cocaine from Brazil into Namibia. The cocaine is said to have a street value of N$206 000 000. The said cocaine was intercepted by members of Customs and Excise at the port of Walvis Bay. This court found that the cocaine was imported by both accused persons using Zeeki Trading CC as a front to import copy paper and cocaine.
[21] As stated, dealing in cocaine is a very serious offence which is prevalent in our country. The several number of cases of cocaine in our jurisdiction is indicative of the prevalence of dealing in cocaine. Cocaine is listed as a dangerous dependence-producing drug, while cannabis, for example, is listed as a prohibited dependence-producing drug.8 This makes cocaine a dangerous drug.
[22] The Drugs Act in s 2(c)(i) provides for the penalty to be imposed to an offender who is convicted of dealing in cocaine. Such person shall be sentenced, “(i) in case of a first conviction for a contravention of any provision of paragraph (a) or (c), to a fine not exceeding N$30,000 or to imprisonment for a period not exceeding 15 years or to both such fine and such imprisonment.” (Own emphasis).
[23] The said penalty finds application to both accused persons.
The interests of society
[24] Mr Itula submitted that the planned and deliberate acts of the accused persons which were perpetrated without having regard to the interest of society deserves severe sentences. Society expects that offenders be punished accordingly. This court in S v Sibonyoni,9 said that:
‘Drug dealers are unscrupulous criminals. The Courts have a duty to protect the members of society from exploitation by these elements.’
[25] This court retains a duty to protect society from drugs and in doing so one can only imagine how catastrophic it would have been to the Namibian community had 412kg of cocaine found its way into the society. It will not be farfetched, in my view, to conclude that such a large quantity of cocaine has the capacity to bring the nation to its knees. Courts should, therefore, play their role to condemn the dealing in drugs.
Comparable cases
[26] Mr Itula drew a catalogue of related cases to the attention of the court. In Katangolo v S,10 the accused was convicted for contravening s 2(c) of the Drugs Act (Dealing in 1.9968 grams of cocaine) and sentenced N$25 000 or 24 months’ imprisonment. On appeal, the court set aside the conviction of dealing in drugs and substituted it with possession of drugs and replaced the sentence with that of N$20 000 or 3 years’ imprisonment.
[27] In S v Mlambo,11 the accused, a first offender, was convicted of dealing in 36.102kg cannabis valued at N$108 570 and sentenced to 10 years’ imprisonment of which 2 years imprisonment were suspended. The court in Mlambo referred with approval to the South African decisions of S v Hightower12 and S v Randall.13 In Hightower, the accused was convicted of dealing in cocaine valued at N$500 000 and sentenced to 10 years’ imprisonment of which 3 years’ imprisonment were suspended for 5 years. In Randall, the accused was convicted of dealing in cocaine of 2 750 grams and sentenced to 15 years’ imprisonment of which 7 years’ imprisonment were suspended for 5 years.
[28] In S v Sibonyoni,14 the appellant had been convicted of dealing in 1,797kg of cocaine. He was sentenced to thirteen years’ imprisonment of which 3 years’ imprisonment were suspended. On appeal, the sentence was altered 10 years’ imprisonment of which 2 years’ imprisonment were suspended for 5 years.
[29] In S v Nwosu,15 the accused was convicted for dealing in cocaine after importing 80 bullets of cocaine from Brazil into Namibia. He was sentenced 10 years’ imprisonment of which 2 years’ imprisonment were suspended for 5 years. This sentence was confirmed by this court.
[30] In a matter that is close to home, of S v Paolo and Another,16 the court convicted the accused persons for dealing in a record cocaine (by then) of 31.1 kg with a street value of N$15 000 000. The accused persons who were first offenders were each sentenced to 10 years’ imprisonment of which 4 years’ imprisonment were suspended for a period of 5 years. The above cases serves as a guideline.
Time spent in custody
[31] A considerable amount of time spent in custody pending trial is a weighty mitigating factor. This position attracted no adverse submissions from both counsel, correctly so. It is established in our jurisdiction that the period spent in custody awaiting trial is a material mitigating factor which should lead to a reduction in sentence.17
[32] Courts should, however, not blindly follow this principle from a mathematical perspective where twelve months spent in custody pending trial is equal to twelve months reduction from the intended sentence. The court retains a discretion which should be exercised after considering the surrounding circumstances of the matter after which appropriate weight should be afforded thereto.
[33] In casu, I find that the period of 4 years and 3 months and the 3 years and 4 months that accused one and two respectively spent in custody pending trial deserves serious consideration. What exacerbates the lengthy time spent in custody is the fact that for a considerable amount of time the case against the accused persons, while at the Magistrate’s Court, was subjected to several postponements for investigations including alleged investigation to be carried out in Brazil. It later became apparent that no investigations were conducted in Brazil. I shall afford such lengthy time spent in custody the due weight it deserves.
Remorse
[34] The accused persons persisted in their innocence and required the state to prove its case. I find nothing untoward with the approach adopted by the accused persons as they simply exercised their right to innocence. This is in keeping with the presumption of innocence until proven guilty as guaranteed by our Constitution.18
[35] Mr Ntinda submitted that accused one was remorseful and apologised for the crime committed and sought mercy. No similar expression of remorse were made on the instructions of accused two. None of the accused persons testified in mitigation. When remorse is expressed through the legal representative it becomes difficult to assess its genuineness. This is understood from the backdrop that remorse is an expression that one is apologetic for his actions and that such actions shall not be repeated. But, I hold the view that, better expressed than never. Although belatedly expressed, the apology tendered by accused one deserves consideration.
Principles of punishment and analysis
[36] Corbett JA in S v Rabie,19 reminded judicial officers of the approach to sentencing when he remarked that:
‘… A judicial officer should not approach punishment in a spirit of anger because, being human, that will make it difficult for him to achieve that delicate balance between the crime, the criminal and the interests of society which his task and the objects of punishment demand of him. Nor should he strive after severity; nor, on the other hand, surrender to misplaced pity. While not flitching from firmness, where firmness is called for, he should approach his task with a humane and compassionate understanding of human frailties and the pressures of society which contribute to criminality…’
[37] Mr Ntinda submitted that the accused persons should not be subjected to general deterrent sentences but should rather be individually deterred and punished for their offences.
[38] Retribution and deterrence require that, during the sentencing of the accused persons, the court should consider the impact of the drugs on the society. The accused persons are further expected by the society to pay for their deeds through appropriate punishment. It is only after serving the sentence and after being reformed that society can welcome the accused persons back.
[39] Society mercilessly looks up to the courts for appropriate sentences and protection. Importing cocaine, inconsiderate of the consequential harm that it may cause to society, cannot be acceptable conduct by any measure but is worthy of condemnation in the strongest possible manner. Stiff sentences should be imposed on persons convicted of dealing in cocaine. Such sentences will, in my view, deter not only the accused persons but would be offenders as well. Would-be offenders should not be tempted by the lucrativeness that may be in drug dealing. The amount sought to be generated from the value of drugs should not be worth the risk. It is on this premise that I find that the value of the drugs constitutes a material factor in sentencing. In this matter the value of the cocaine is said to be a record N$206 000 000.
[40] In respect of rehabilitation, the Supreme Court in S v Schiefer,20 adopted with approval the following remarks by Harms JA in S v Mhlakaza21 on the effect that lengthy terms of imprisonment may have on rehabilitation:
‘Whether or not this scepticism is fully justified, the point is that the object of a lengthy sentence of imprisonment is the removal of a serious offender from society. Should he become rehabilitated in prison, he might qualify for a reduction in sentence, but it remains an unenviable, if not impossible, burden upon a court to have to divine what effect a long sentence will have on the individual before it. Such predictions cannot be made with any degree of accuracy.’
[41] I take into account that the accused persons used ZEEKI Trading CC to perpetrate their criminal activities and imported cocaine into Namibia disguised as copy paper and together with copy paper. This was an organised crime planned for which the accused persons cannot get away with a tap on the wrist. It is also on this basis, inter alia, that I find that the imported copy paper forms part of the commission of the offence of dealing in cocaine.
[42] Mr Ntinda submitted that an appropriate sentence in this matter is a fine coupled with a term of imprisonment which is wholly suspended. Mr Itula submitted contrariwise, and called for the maximum sentence of fifteen years’ direct imprisonment be imposed.
[43] Whilst accused two is a first offender, accused one has a previous conviction that is negligible and more than ten years old to the extent that it retains very little value to this matter, in my view. I will, therefore, afford accused one the treatment that is closer to that of a first offender.
[44] The air should cleared that there is no rule of law that a first offender cannot be sentenced to a direct term of imprisonment, depending on the nature of the offence and the surrounding circumstances thereto.
[45] After considering the personal circumstances of the accused persons, inclusive of the their mitigating factors and the lengthy periods of time spent in custody, and weighing same with the nature, seriousness and circumstances of the offence, particularly the organised nature in which the cocaine was imported into Namibia, I find that the accused persons cannot escape the sentence of direct imprisonment.
[46] I am of the further view that the sentences of imprisonment imposed should be reduced in order to account for substantial periods of time spent in custody awaiting trial. Accused one is forty years old and expressed remorse while accused two is sixty six years old and is a first offender. These mitigation factors qualifies the accused persons for mercy to be extended to them. I, therefore, do not agree that the accused should be trumped on with the maximum penalty as, in my view, that will leave them (particularly accused two) with little or no hope of release from prison one day.
[47] I am further of the firm view that sentences should be individualized as per the surrounding circumstances and accused persons should not be sacrificed at the altar.22
Conclusion
[48] Taking all the aforesaid factors, reasoning and conclusions into account, I am of the considered view that the sentence set out below is appropriate in this matter. In the result the accused persons are sentenced as follows:
1. Accused one - For contravening section 2(c) read with sections 1, 2(i), and 2(ii), 8, 10, 14 and Part II of the Schedule of the Abuse of Dependence-Producing Substances and Rehabilitation Centres Act, Act 41 of 1971 as amended and further read with section 332(5) of the Criminal Procedure Act, Act 51 of 1977 – Dealing in dangerous dependence-producing drugs (Cocaine) – 12 (twelve) years’ imprisonment of which 5 (five) years’ imprisonment are suspended for a period of 5 (five) years on condition that you are not convicted of the offence of contravening section 2(c), 2(d) read with sections 1, 2(1) and/or 2(ii), 8, 10, 14 and Part II of the Schedule, of Act 41 of 1971, committed during the period of suspension.
2. Accused two - For contravening section 2(c) read with sections 1, 2(i), and 2(ii), 8, 10, 14 and Part II of the Schedule of the Abuse of Dependence-Producing Substances and Rehabilitation Centres Act, Act 41 of 1971 as amended and further read with section 332(5) of the Criminal Procedure Act, Act 51 of 1977 – Dealing in dangerous dependence-producing drugs (Cocaine) – 12 (twelve) years’ imprisonment of which 5 (five) years’ imprisonment are suspended for a period of 5 (five) years on condition that you are not convicted of the offence of contravening section 2(c), 2(d) read with sections 1, 2(1) and/or 2(ii), 8, 10, 14 and Part II of the Schedule, of Act 41 of 1971, committed during the period of suspension.
3. In terms of section 8(1)(a) of the Abuse of Dependence-Producing Substances and Rehabilitation Act, Act 41 of 1971, I declare the 412 kilograms of cocaine forfeited to the state.
4. In terms of section 8(1)(b) of the Abuse of Dependence-Producing Substances and Rehabilitation Act, Act 41 of 1971, I declare the boxes of photo copy papers and copy papers imported together with the cocaine into Namibia forfeited to the state.
_____________
O S SIBEYA
JUDGE
APPEARANCES:
STATE: T Itula
Of Office of the Prosecutor General
Windhoek
ACCUSED ONE & TWO: M Ntinda
Of Sisa Namandje & Co Inc
Windhoek
1 S v Zinn 1969 (2) SA 537 (A).
2 S v Jansen 1975 (1) SA 425 (A) 427-428.
3 S v Khumalo 1973 (3) SA 697 (A) 698.
4 S v Sparks and Another 1972 (3) SA 396 (A) B at 410H.
5 S v Tcoeib 1991 NR 263.
6 S v Van Wyk 1993 NR 426 (SC).
7 Harry De Klerk v The State Case No. SA 18/2003, delivered on 08 December 2006.
8 S v Sehako (1) NR 61 (HC) at p.63.
9 S v Sibonyoni 2001 NR 22 (HC) at 25.
10 Katangolo v S (CA 21/2017) [2017] NAHCMD 314
11 S v Mlambo 1997 NR 221 (HC).
12 S v Hightower 1992 (1) SACR 420 (W).
13 S v Randall 1995 (1) SACR 559 (C).
14 S v Sibonyoni 2001 NR 22 (HC).
15 S v Nwosu (CA 105/2013) [2014] NAHCMD 105 28 March 2014.
16 S v Paolo and Another (CC 10/2009) delivered on 10 March 2011.
17 S v Kauzuu 2006 (1) NR 225 (HC).
18 Article 12(1)(d).
19 S v Rabie 1975 (4) SA 855 (A) at p. 866A-C.
20 S v Schiefer 2017 (4) NR 1073 (SC) para 36.
21 S v Mhlakaza 1997(1) SACR 515 (SCA) 519h-i.
22 S v Katema (CC09/2017) NAHCMD 125 (16 November 2018) para 12.