CASE NO.: CR 15/2011

"Not Reportable"

In the matter between:

THE STATE
vs
THEOPLAT MBAARI NDERURA
(HIGH COURT REVIEW CASE NO.: 1563/2010)

Delivered on:       2011 February 23

REVIEW JUDGMENT

'24 months' imprisonment of which 18 months (are) suspended for four years on condition that the accused is not convicted of contravening s. 11 (1) (a), s. 14 and s. 17 of the Stock Theft Act 1990, as amended, committed during the period of suspension.'

[2]     I directed the following query to the learned magistrate:

'(1) It is not clear what circumstances the learned Magistrate found to be 'compelling and substantial'. If as the learned Magistrate says, she found such circumstances to exist, justifying the imposition of a sentence less than the statutorily prescribed minimum sentence, why then did she impose a sentence of 24 months' imprisonment?

(2)     Would the learned Magistrate please explain?'

And the learned Magistrate responded in the following terms (quoted verbatim):

The record indicates on page 3 that s.14 (1) and 2 of Stock Theft Amendment Act 19/2004 was explained as per annexure C. Accused indicated that he is a first offender he pleaded guilty to the charge he further stated that most of the meat was recorded. He requested for a suspended sentence.

2001 (2) SA 1222.   The starting point is that the prescribed
minimum sentence is to be imposed, if court is satisfied compelling and substantial circumstances exist then it can depart from the minimum sentence.

It was the court's view that the fact that accused person was first offender, pleaded guilty and that he did not benefit anything from the offence is weighty enough to justify a lesser sentence. Further, the value of the stolen goat is N$300.00 so it was this court's view that if accused is given the prescribed minimum sentence it will be overly harsh. Accused was not given direct 24 months imprisonment it was suspended for 4 years on the usual conditions. '

Accordingly, as I have said previously, the factors that the learned magistrate says he found to exist do not, in my view, measure up to the mark of 'substantial and compelling' within the meaning of s. 14(2) of the
Act.

[6]     In the result the following orders are made:
(1)	The conviction of the accused is confirmed.
(2)	The sentence imposed by the learned Magistrate is set aside and the following is put in its place:

24 months' imprisonment, of which 18 months are suspended for five years on condition that the accused is not convicted of the crime of theft which takes into
account s. 11 (1) (a), s. 14 and s. 17 of the Stock Theft Act, 1990 (Act No. 12 of 1990) (as amended).

PARKER, J

I agree.

UNENGU, AJ