Judges throw out shocking spliff sentence

The High Court has overturned a two-year prison sentence for possession of a single dagga cigarette.

28 January 2020 | Justice

A N$4 000 fine or two-year prison sentence for possession of a single two-gram dagga joint worth N$20 was tossed out by two High Court judges who said the punishment was too severe.

“There can be no doubt that the N$4 000 fine imposed by the court fell well outside the financial means of the accused, thereby effectively imposing a sentence of two years imprisonment for two grams of cannabis valued at N$20.”

This was the conclusion reached in a review judgement by High Court Judge Christie Liebenberg and acting High Court Judge Orben Sibeya in mid-January.

Benoit Swart (45) was found guilty of possession by a Keetmanshoop magistrate last October after the police discovered him with a cannabis cigarette on his home's stoep following a tip-off.

Liebenberg and Sibeya agreed that the magistrate, not named in the review papers, handed down a sentence that is “so shockingly inappropriate that it borders on a failure of justice”.

They said Swart was “clearly sacrificed on the proverbial altar of deterrence” with no regard given to a number of critical mitigating factors.

In their scathing judgement, Liebenberg and Sibeya wrote: “How the magistrate could possibly think that this is an instance where the accused should be visited with the full extent of the law is beyond comprehension.”

Swart had told the magistrate he earned N$1 300 as a plumber and that he was the sole breadwinner for his family.

His plea for a fine of N$400 or one month behind bars fell on deaf ears.

Liebenberg and Sibeya pointed out that the fine imposed was clearly out of reach of the accused, “resulting in him having to serve the alternative two years' imprisonment”.

Ultimately, Swart spent two days in prison and was released after he managed to scrape together N$4 000.



Faulty

Among the multiple criticisms levelled against the sentence was the magistrate's decision to ignore the small amount of cannabis found on Swart.

This “bold conclusion” was not in line with case law, however, Liebenberg and Sibeya noted.

“Logic dictates that a person found with two grams of cannabis should receive a lesser sentence than a person found with two kilograms of cannabis.”

Furthermore, the magistrate had applied “erroneous reasoning” when she linked Swart's crime with children being exposed to drugs, and offences like rape, murder, culpable homicide and robbery.

“There is simply no basis for connecting the crime committed by the accused with any of these circumstances,” they said.

She also failed to acknowledge that he was a first offender, employed and his family's sole breadwinner.

“It is evident that mere lip service was paid to the accused's personal circumstances. This unfortunately resulted in the court over-emphasising the seriousness of the offence and the interests of society,” the review read.

While upholding the conviction, Liebenberg and Sibeya ordered that his sentence be set aside and instead imposed a fine of N$500 or, in default, 60 days behind bars.

The judges ordered that Swart be refunded N$3 500 and that the judgement be brought to his attention, as well as that of the chief magistrate and magistrates in the Keetmanshoop jurisdiction.

JANA-MARI SMITH

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