Dagga joint lands man in jail for nine months

Jana-Mari Smith
A man imprisoned for close to a year based on an amount of dagga 13 times higher than the 1.2 grams of dagga valued at N$12 he was actually caught with, had his sentence reduced to two months.
Shilongo Ismael was arrested four years ago in September 2018. His trial at the Outapi magistrate’s court only started in January this year.
While Ismael pled guilty, he always disputed the 15.4 grams of dagga he was first accused of having in his possession, admitting to being in possession of just over one gram – enough to roll one joint according to online dispensaries.
A state witness later confirmed the weight.
Two High Court judges, Johanna Salionga and Eduard Kesslau, in a review judgment handed down this month, slashed his nine-month sentence to two months, noting that his sentence was based on an incorrect object’s weight, instead of the cannabis he was caught with.
“Evidence presented was that the empty exhibit bag weighed 15.4 grams, thus the magistrate convicted the accused on the weight of an empty exhibit bag,” the review judgment states.
The magistrate’s sentence “was based on the incorrect weight of cannabis whilst also considering a non-admitted previous conviction. It follows that the sentence cannot stand and will be replaced with an appropriate sentence.”
The judges found “it is doubtful if the magistrate took the time to read the initial pleas and properly apply his mind”.
Riddled with errors
The review judgment contains scathing criticism levelled at the magistrate and state’s handling of the case, including the errors related to the weight of the drugs.
“Upon reviewing the record of proceedings, it appears to this court that the proceedings are clearly not in accordance with justice,” the review judgment noted.
During the trial, the state asked the court to sentence Ismael to six months behind bars, arguing that drugs are “the core cause to crimes” (sic), and that being in possession of 1.2 grams of cannabis “demands a harsh sentence”.
The magistrate, not identified in the court records, agreed that Ismael faced “quite a serious” charge and claimed the accused had not shown any remorse.
Kesslau and Salionga noted that “a guilty plea is normally an indication of some remorse from an accused”.
Moreover, the court records were in disarray, with the judges underlining that “the level of carelessness displayed with the record keeping by the magistrate is alarming”.
Furthermore, the records were changed in writing relating to the weight of the cannabis.
Initial witness records indicate testimony that the dagga weighted more than 14 grams, but were later scratched out with a pen and changed to the 1.2 grams of dagga. “No questions were asked by the state or the magistrate to the witness to clarify the alterations. It is unclear who did the alternations and if it was done before or after the plea was taken from the accused,” the judges noted.
They underlined that the weight and value of the cannabis were an integral part of the charge, and the magistrate was expected to clarify the evidence before making a decision.
Court records show further that the magistrate explained that to apply for legal aid, the accused would have to “pay half or one third of this cost and the other two thirds will be subsidised by government”.
Kesslau and Salionga stressed that this explanation “is misleading in that it is untrue”, noting that the explanation has been used frequently in the Division of Oshakati and “should be rectified immediately”.
The judges said the false information given to Ismael could amount to an “irregularity in proceedings”, but because he declined legal support on numerous occasions, did not mar proceedings in that regard.