NOT REPORTABLE 
CASE NO.: CC 10/2009

IN THE HIGH COURT OF NAMIBIA

In the matter between:

THE STATE

and

DANIEL JOAO PAULO 						First Accused
JOSUE MANUEL ANTONIO 					Second Accused

Delivered on:    2011 March 10

JUDGMENT (SENTENCING)

2(ii), 8, 10, 14 and Part II of the Schedule of Act 41 of 1971 (as amended) ('the Act') - dealing in dangerous dependence producing drugs ('drugs'). I do not propose to rehearse the factual findings I made bearing on the conviction as set out in the aforementioned judgment on conviction. It is worth noting that both counsel have submitted heads of argument; and I am grateful for their industry.

[2] I now proceed to determine an appropriate sentence. In doing so I must point out that the statute creating the offence that the accused have been convicted of has provided its own penal sanctions under s. 2(i) of the Act, namely, in the case of a first conviction a fine not exceeding N$30, 000.00 or to imprisonment not exceeding 15 years or to both such fine and such imprisonment. It is clear from the scheme of the statutory penal sanction that the Court has no power to impose any sentence beyond the maximum mark that is set by the Act. The converse is therefore that up to the maximum bar the Court has discretion to impose any appropriate sentence. This conclusion leads me to the next level of the enquiry.

[5] I pass to consider the crime. I have already set out previously the crime for which the accused persons were convicted. The crime involved is serious; that much both counsel agree. Indeed, that the Legislature in its wisdom has seen it fit to prescribe a sentence, albeit only the uppermost ceiling, is indicative of the seriousness with which the Parliament, as the legislative representative of the Namibia nation, views the crime. Mr Sibeya drew the Court's attention to the fact that the weight of the cocaine is 'a record' 31.1 kg, with a street value of N$15, 000, 000.00.

[6] Mr Sibeya submitted further that cocaine is presently prevalent in Namibia. Counsel's submission was confirmed in material respects by evidence by Chief Inspector De Klerk, the then head of the Drug Law

Enforcement Unit (DLEU) of the Namibia Police (NAMPOL). I accept De
Klerk's evidence. In this connection, I also accept De Klerk's testimony that since Namibia is a State Party to the SADC Protocol and the UN Convention on control of drugs like cocaine, the international community expects Namibia to play its role in enforcing those international instruments by, for instance, ensuring that Namibia does not allow itself to become a hub for the international trafficking of dangerous drugs like cocaine. On this, the evidence is incontrovertible in the judgment on conviction that the cocaine was not meant for the Namibia market; it was on its way to South Africa. But, of course, I hasten to add that, as I have said previously, as a member of the comity of nations Namibia must be seen to be playing its part in not being looked at as a transit point for such dangerous drugs as cocaine. That much also Mr Namandje appreciates. But it does not follow as a matter of course that only a severe punishment would satisfy the international community. That NAMPOL was vigilant in arresting the accused and charging them before the Court and seizing the cocaine are, in my opinion, on any pan of scale indicative of Namibia's preparedness to enforce the SADC and UN instruments.

[7] In this regard, I find that although the accused have been convicted of 'dealing in' the cocaine, in terms of s. 1 of the Act the crime of 'dealing in' consists of different and separate kinds of acts connected with cocaine: (1) collection, (2) importation, (3) supply, (4) transshipment, (5) administration, (6) exportation, (7) cultivation, (8) sale, (9) manufacture, (10) transmission and (11) prescription. In my opinion, all these acts cannot be put in the same basket for the purpose of sentencing. For instance, 'importation', 'cultivation', 'sale' or 'manufacture' of a dangerous drug like cocaine is more serious than its 'exportation' or 'transmission' and so, therefore, any of the latter acts should attract a lesser sentence than any of the former acts. That, in my view, is fair. In this regard, it must be remembered that the accused were convicted of 'dealing in' the cocaine on account of 'exportation' or 'transmission' of the cocaine.

[8] As respects the interests of society the pith and marrow of Mr Sibeya's submission is that the prevalence of such crimes as the present can be gathered from the many cocaine cases which come to our courts, including the district magistrates' courts and the regional magistrates' courts. I agree that since the crime is a serious one, the society must be protected from its devastating effects.

[12] Apart from the personal circumstances mentioned previously, Mr Namandje sought to draw this Court's attention to others, particularly the fact that the accused persons are first offenders, coupled with the fact that each accused has been in custody awaiting trial for three years and some three months.

[15] Taking all the aforegoing factors and reasoning and conclusions into account, including the fact that the accused persons have been held in custody for three years and some three months, awaiting trial, I think the sentence set out below meets the justice of this case.

[16]   Whereupon:

2)	I declare the aforementioned 31.1 kg of cocaine to be forfeited to the State.
3)	I declare the motor vehicle, registration number KEA 88-61, used for the purpose, and in connection with, the commission of the offence, to be forfeited to the State.

PARKER J
COUNSEL ON BEHALF OF THE STATE:
Mr O Sibeya

COUNSEL ON BEHALF OF THE ACCUSEDS:

Mr S Namandje