Court name
High Court Main Division
Case number
CRIMINAL 22 of 2013
Case name
S v Luish
Media neutral citation
[2013] NAHCMD 79
Judge
Shivute J
Unengu AJ














REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA MAIN
DIVISION, WINDHOEK








JUDGMENT



Case No: CR 22/2013



In the matter between:








THE STATE








and








MUTHATO NICOLAUS LUISH








(HIGH COURT MAIN DIVISION REVIEW
REF NO 182/2013)








Neutral citation: S v Luish
(CR 22-2013) [2013] NAHCMD 79 (27 March 2013)








Coram: SHIVUTE, J and UNENGU,
AJ



Delivered: March 2013








Flynote: Criminal procedure –
sentence of – a fine beyond the ability of the accused to pay
or to generate – not proper and inappropriate – on review
– sentence substituted for a short sentence of imprisonment.








Summary: The accused was
charged with and convicted of assault with the intent to do grievous
bodily harm – read with the provisions of the Domestic Violence
Act, 4 of 2003 – The magistrate imposed a fine beyond the
ability of the accused to pay or to generate, therefore, the accused,
inevitably has to go to jail to serve the alternative sentence –
sentence no proper and inappropriate – on review, sentence
imposed by magistrate set aside and substituted for a short sentence
of imprisonment.



___________________________________________________________________



ORDER








In the result, I make the following
order:








(i) The conviction is confirmed.








(ii) The sentence of a fine of
N$4000.00 (Four thousand Namibia dollars) or two (2) years
imprisonment by the magistrate is set aside and substituted for the
sentence of four (4) months imprisonment. The sentence is backdated
to 7 December 2012.



___________________________________________________________________



REVIEW JUDGMENT








UNENGU, AJ (SHIVUTE, J concurring):








[1] The accused in the matter was
charged with the crime of assault with the intent to do grievous
bodily harm – read with the provisions of Act 4 of 2003
(Domestic Violence Act).








[2] He pleaded not guilty to the
charge but was, after leading evidence, convicted as charged and
sentenced to pay a fine of four thousand Namibia dollars (N$4000.00)
or two (2) years imprisonment.








[3] When the matter was submitted
before me for review following the provisions of section 302 of the
Criminal procedure Act1,
I directed the following query to the presiding magistrate:













REVIEW
CASE NO.: 303/2011



HIGH COURT REF. NO.:
182/2013



MAGISTRATE SERIAL NO.: 41/2012



THE STATE vs MUTHATO
NICOLAUS LUISH








The Honourable Reviewing Judge
remarked as follows:








1. Kindly provide reasons for the
sentence imposed considering that:









  1. Complainant did not want to go ahead
    with the charge against her boyfriend; and



  2. The accused is unemployed and a first
    offender.









2. Your urgent reply is appreciated.”








[4] The magistrate replied to my query
as follows:








REVIEW
CASE NO.: 303/2011



HIGH COURT REF. NO.:
182/2013



MAGISTRATE SERIAL NO.: 41/2012








The state vs Muthako Niclaus Luish








The presiding officer remarks as
follows:








The crime of Assault with intent to do
grievous bodily harm is a prevalent crime in the District of Rundu.
It is without any doubt a serious crime. The attack was uncalled for.
It is true that the complainant and the mother wanted to withdraw the
case.








Though there is no evidence to prove
that they were labouring under threat such possibility cannot be
ruled out. The purpose of withdrawing the matter was not absolute.
The mother of the complainant told the court that they were
withdrawing the case for the accused to go and sacrifice a chicken,
or a goat even a cattle to redeem the blood that flew from the
complainant. She further informed court that the two families are not
at peace with each other, owing to the assault of the complainant.








The accused acted out of jealousy. He
suspected that there was a man in the complainant’s room. Even
when the complainant tried to explain or deny the allegation, accused
could not understand it so he went ahead and beat her with a Sjambok
inflicted an (sic) injuries which rendered her unconsciousness (sic).








This is a domestic violence case.








The judge president had this to say
about violence cases: (sic)








Just
as it is a judge’s duty to show mercy to a convicted prisoner,
it is equally important duty of judges to protect society from the
scourge of violence. The fact that sentences we impose do not seem to
deter would-be-criminals should not make us shrink from that
responsibility. In my view, in order to maintain a balance between
the High violence against the vulnerable, especially women and
children, and society’s demand for justice, very long terms of
imprisonment for such crimes must be then a norm. Only to be deviated
from in exceptional circumstances. If that were not the case there
is, I apprehend a real risk of vigilantism and lynch-justice if one
listens to the chorus of public despair at the incidence of violent
crimes in Namibia.’



The manner in which the accused person
conducted himself does not support any deviation in this mater (sic).
Although unemployed and a first offender he deserved to be punished
harder in order to come to the realization that anger, short temper
or jealousy does not pay and the courts will not hesitate to impose
severe sentences upon conviction.








I am of the opinion that the sentence
is in order and request that the proceedings be confirmed.








I rest my submissions.”



[5] Briefly the facts of the matter
are that complainant and the accused are boyfriend and girlfriend
having together one child. On the fateful day, the accused who was
visiting his village earlier on, returned to the village of
complainant where he stays with her. On arrival at his home, he
noticed a male person going out from his house. He entered the house
and found the complainant lying on the bed. The accused wanted to
know from complainant who the male person was, she denied knowledge
thereof. She became angry, probably because of the accusation by the
accused, regarding this male person he saw coming out of his house
and started throwing his belongings out of the house so that he could
go away from her. The accused also became angry and assaulted the
complainant by whipping her with a sjambok over her body. Complainant
sustained injuries for which she had received treatment at the
hospital, and laid a charge of assault with the intent to do grievous
bodily harm at the police. However, she wanted to withdraw the charge
against the accused but was not allowed to do so by the police and
the state. She had forgiven the accused for what he had done to her.








[6] In mitigation the accused told the
court that he was unemployed but was doing casual work here and there
to maintain the complainant and his two children. He indicated that
he was paying school fees of the complainant and their child. The
complainant, when called by the state to testify in aggravation of
sentence, she asked the court to impose community service as a
sentence for the accused. Nevertheless, the magistrate proceeded and
imposed the sentence indicated above.








[7] In her reply to my query, the
learned magistrate said that ‘although unemployed and a first
offender he (the accused) deserved to be punished harder in order to
come to the realization that anger, short temper or jealousy does not
pay and the courts will not hesitate to impose severe sentences upon
conviction’.








[8] If the intention of the magistrate
was to punish the accused harder – why then did she impose a
fine instead of an imprisonment sentence without an option of a fine?
Is a fine not intended to keep the accused person out of jail upon
payment? It is not what happened in this matter though.








[9] In this matter, a fine was imposed
well knowing that the accused, who was unemployed, would not be able
to pay and would also not be able to generate the money somewhere,
therefore, inevitably would have to go to jail to serve the
alternative sentence of 2 (two) years imprisonment. In S v Kamu2,
Strydom, JP (as he then was) stated the following:








Judging from
reviews coming before the High Court it seems that there is now a
tendency to impose fines, even in serious cases, where the only
appropriate sentence would be imprisonment. The fine is usually
imposed well knowing that the accused would not be able to pay and
would not be able to generate money from the assets. Such fines are
then coupled with long periods of imprisonment which must then be
served by the accused.
I
must sound a note of warning. This method of sentencing is in my
opinion not a proper exercise of the Court’s discretion. It
creates the wrong and misleading impression that the Court
endeavoured to keep the accused out of prison
.
This can boomerang, especially in those cases where a fine is not a
proper and appropriate sentence. It further creates the impression
that those with money who can pay have the advantage that they can
buy their freedom, whereas those with no money will have to go to
prison”. (Emphasis added).








[10] I agree. It is what happened in
the present matter. The accused, having no money to buy his freedom,
was obliged to go to prison to serve the two (2) years imprisonment.
In my view, the learned magistrate did not exercise her discretion
properly, thereby creating the wrong and misleading impression that
she endeavoured to keep the accused out of prison.








[11] When a presiding magistrate
decided to impose a fine, then, as a general rule, the offender must
either be capable of paying the fine or getting the fine paid on his
or her behalf. (See S v Vekueminina and others3).








[12] Further, I am of the view that
the learned magistrate failed or did not consider the personal
interest of the accused adequately but over-emphasised the interest
of the society and the seriousness of the crime he was convicted of.
That being so, it is my further view that the sentence imposed on the
accused is not proper and is inappropriate in the circumstances,
therefore, it cannot be allowed to stand. The conviction is in order
and will be confirmed.








[13] In the result, I make the
following order:








(i) The conviction is confirmed.








(ii) The sentence of a fine of
N$4000.00 (Four thousand Namibia dollars) or two (2) years
imprisonment imposed by the magistrate is set aside and substituted
for the sentence of four (4) months imprisonment. The sentence is
backdated to 7 December 2012.


















______________________



E P Unengu



Acting Judge























______________________



N Shivute



Judge




1Act
51 of 1977





21998
NR 194 at 196 E-H





31992
NR 255 at 257