Court name
High Court Main Division
Case number
CA 24 of 2015
Title

Machinga v S (CA 24 of 2015) [2015] NAHCMD 188 (08 November 2015);

Media neutral citation
[2015] NAHCMD 188
Coram
Liebenberg J
Shivute J










REPUBLIC OF NAMIBIA





HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK





Case No: CA 24/2015





DATE: 11 AUGUST 2015





MAYUMBELO MACHINGA





versus





THE STATE





Neutral citation: Mayumbelo v State
(CA 24-2015) [2015] NAHCMD 188 (11 August 2015)





Coram: LIEBENBERG, J et SHIVUTE, J





Heard: 20 July 2015





Delivered: 11 August 2015





Fly note: Appeal against –
Sentence – Appellant jointly charged with two others –
Appellant’s co-accused persons in position of trust – Not
apparent from record that appellant in similar position – All
accused persons sentenced to same sentence – Magistrate
misdirecting himself by not drawing a distinction between a person in
position of trust and the one who was not – Misdirection also
not to reflect youthfulness of appellant in the sentence - Sentence
vitiated by misdirection and set aside – Appellant’s
appeal upheld and fresh sentence imposed.





ORDER





(a) The appeal is upheld.





(b) The sentence of five (5) years’
imprisonment of which two (2) years are suspended for a period of
five (5) years on condition that the accused is not convicted of
theft committed during the period of suspension imposed by the court
a quo is set aside and replaced with the following sentence:





‘Three (3) years’
imprisonment of which one (1) year is suspended for five (5) years on
condition that the accused is not convicted of theft committed during
the period of suspension.’





(c) The sentence is antedated to 9
February 2015.





JUDGMENT





SHIVUTE J (LIEBENBERG, J
concurring):





[1] The appellant was jointly charged
with two others in the Katima Mulio Magistrate’s Court of theft
of goods valued at N$22565.30





[2] They all pleaded guilty and were
convicted as charged. The appellant’s co-accused persons were
working for the complainant. They were each sentenced to five (5)
years’ imprisonment of which two (2) years are suspended for a
period of five (5) years on certain conditions.





[3] Aggrieved by the sentence imposed
on him, the appellant now appeals against such sentence. Mr Kamwi
argued the appeal on behalf of the appellant while Mr Muhongo
appeared on behalf of the respondent.




[4] The grounds of appeal may be
summarized as follows:





The learned magistrate misdirected
himself or erred in law and or in fact:





(a) When he sentenced the appellant
without the option of a fine despite the appellant having indicated
that he could afford to pay a fine;





(b) By failing to consider any other
form of punishment than a custodial sentence;





(c) By imposing the same sentence on
the appellant as that imposed on the co-accused persons without
considering the fact that the appellant was not in a position of
trust as the co-accused were;





(d) By overemphasizing deterrence as
purpose of punishment over and above the personal circumstances of
the appellant and the remorse he expressed;





(e) By ignoring that the appellant
pleaded guilty on first appearance;





(f) By ‘paying lip service’
to the facts that the appellant was a youthful offender, the goods
were recovered and the appellant stole because of poverty, and





(g) By imposing a harsh sentence on the
appellant when there was no real prejudice to the complainant.





[5] Counsel for the appellant argued
that the court a quo sentenced all three accused persons to the same
sentence while they had different personal circumstances.
Appellant’s co-accused persons were in position of trust
whilst the appellant was not. Furthermore, the trial court
overemphasized the general deterrence purpose of punishment over and
above the personal circumstances of the appellant.





[6] It was again counsel’s
argument that the Court imposed an excessive sentence without
considering that the appellant pleaded guilty to the charge; the
property has been recovered; the accused was a youthful offender, and
that he stole because of poverty.





[7] On the other hand, counsel for the
Respondent argued that the court a quo was justified by treating the
offence of theft as a serious one and by imposing a stiffer sentence.
Furthermore, the fact that there was no economic loss to the victim
as all the stolen goods were recovered does not diminish the
seriousness of the offence.





[8] Concerning the alleged overemphasis
of the deterrent purpose of punishment, counsel argued that a balance
approach was normally required but courts are justified in certain
instances to attach more weight to some aims of punishment or to
emphasis one or more factors at the expense of other sentencing
considerations. In the present matter, it is counsel’s
submission that the court was justified to attach more weight to
deterrence due to the prevalence of the offence of theft and the
substantial value of the property involved.





[9] As to the option of a fine
suggested by the appellant, counsel argued that a fine would not do
justice in the circumstances as the appellant indicated that he could
only afford to pay N$600 and imprisonment is not an unrealistic
sentence in relation to the offence committed having due regard to
all relevant factors to sentencing. Counsel referred us to several
authorities which we have considered.





[10] Sentencing is pre-eminently a
matter for the trial court and that a Court of Appeal would only be
entitled to interfere with a sentence where the trial Court exercised
its discretion improperly.


(S v Van Wyk 1993 NR 426 SC at 447G.)





[11] Counsel for the appellant argued
that the appellant was supposed to be afforded an opportunity to pay
a fine. However, from the record it is clear that the trial court
did not consider an option of a fine because the accused said he
could only afford to pay N$600. Considering the value of the
property involved, a fine of N$600 would amount to an injustice in
the circumstances. I am of the view that the circumstances of the
case called for a custodial sentence and there is no misdirection on
the part of the magistrate in imposing a custodial sentence.
Therefore, the ground based on the decision not to impose a fine
cannot succeed.





[12 Although the learned magistrate
stated that the appellant was a youthful offender, this factor does
not appear to have been taken into account in the sentence imposed as
the appellant was given the same sentence as the one imposed on the
older co-accused persons.





[13] With regard to the ground that the
magistrate misdirected himself by imposing the same sentence on the
appellant as that imposed on his co-accused persons, I agree with
counsel for the appellant that the learned magistrate neglected to
draw a distinction between the appellant and his co-accused persons.
His co-accused persons were in a position of trust. One was a
security guard who was entrusted with the responsibility of
protecting the property and the other was an employee of the business
against which the offence was committed. It is not apparent from the
record that the appellant was also in a position of trust. By
stealing from their work place the co-accused persons clearly
breached the trust placed upon them by their employer and it appears
that they deserved stiffer punishment than the appellant. The trial
court therefore misdirected itself in not drawing a distinction
between the appellant who was not in a position of trust and his
co-accused who were. In view of this finding, a significant reason
exists justifying interference with the sentence imposed on the
appellant. In light of the conclusion arrived at, it is not
necessary to deal with the remaining ground of appeal or the argument
advanced in relation to it. The sentence imposed by the learned
magistrate cannot be allowed to stand and this court is at large to
consider a fresh sentence.





[14] The appellant was 23 years old and
a first offender who pleaded guilty to the charge thereby saving the
trial court valuable time. He admitted to have participated in the
theft. The stolen food stuff has all been recovered. On the other
hand theft is a relatively prevalent offence and the amount involved
in substantial. As already stated, a custodial sentence was called
for. In the circumstances, I would consider three (3) years’
imprisonment of which one (1) year is suspended for five (5) years on
condition that the accused is not convicted of theft committed during
the period of suspension to be an appropriate sentence.




[15] In the result the following order
is made.





(a) The appeal is upheld.





(b) The sentence of five (5) years’
imprisonment of which two (2) years are suspended for a period of
five (5) years on condition that the accused is not convicted of
theft committed during the period of suspension imposed by the court
a quo is set aside and replaced with the following sentence:





‘Three (3) years’
imprisonment of which one (1) year is suspended for five (5) years on
condition that the accused is not convicted of theft committed during
the period of suspension.’





(c) The sentence is antedated to 9
February 2015.





N N Shivute





Judge





J C LIEBENBERG





Judge





APPEARANCES





APPELLANT : Mr Kamwi





Sibeya & Partners Legal
Practitioners





RESPONDENT: Mr Muhongo





Office of the Prosecutor-General