CRIMINAL LAW – SENTENCE – SMUGGLING OF IMMIGRANTS IN CONTRAVETION OF POCA

CRIMINAL LAW – SENTENCE – SMUGGLING OF IMMIGRANTS IN CONTRAVETION OF POCA

The accused, a Congolese national and a refugee in Namibia pleaded not guilty to all the charges preferred against her in terms of the Prevention of Organised Crime Act. The allegations were that during December 2017 to April 2018, she aided in the smuggling of Congolese nationals into Namibia for purposes of obtaining financial or other material benefit. After a full-fledged trial, the accused was acquitted on some of the charges in respect of counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 respectively. She was, however, found guilty in respects of counts 13, 14 and 15 respectively and convicted as charged.

1. USIKU, J had to consider the appropriate sentence on the three counts on which she was found guilty. In aggravation, the state led evidence of two witnesses, and the accused testified in mitigation. The court had the duty to weigh up the accused’s personal circumstances, the crime committed and the interests of society. It is against that background that the United Nations Convention against Transnational Organised Crime and the Protocol was established with the main purpose to prevent and combat the smuggling of migrants as well as to promote cooperation among state parties to that end, while protecting the rights of smuggled migrants. Namibia is a party to that Protocol. The victims were vulnerable persons exploited for money under pretext they will be relocated to other countries for better living conditions, and, they were running away from war in their country. It was accepted that the accused suffers from ill health, but ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. Society expects that a person who has committed a crime be punished, and as such, it would not be in the interest of society when persons like the accused trample on the values and rights of others to go unpunished.

Whereas it is trite that a sentencing court must strive to balance an accused person’s personal circumstances, the crime committed and the interest of society, it does not necessarily mean that equal weight must be given to those competing interest. Though a  suspended sentence has a deterrent effect on the offender, it cannot be an appropriate sentence under the circumstances of this particular case. It is desirable that justice must be seen to be done through sentences imposed on perpetrators of serious crimes such as the present one.

In the result, the accused was sentenced as follows:

(a)          Count 13: 3 years imprisonment.

(b)          Count 14: 3 years imprisonment.

(c)          Count 15: 3 years imprisonment.

It was ordered that the sentences in respect of counts 13 and 14 run concurrently with the sentence in count 15.

S v Bashala NAHCMD 8 September 2022