S v Kharuchab (Case No.: CR 10/2008) [2007] NAHC 101 (26 February 2007);

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Full judgment
CASE NO
SUMMARY

CASE NO.: CR 10/2008


THE STATE

and

DAVID SACKY KHARUCHAB


SILUNGWE, AJ et LIEBENBERG, AJ

CRIMINAL PROCEDURE


SENTENCE         -        Stock Theft – Failure to apply section 14(2) of stock Theft Act, 1990, as amended – court must consider and determine whether substantial and compelling circumstances exist – If such circumstances do not exist, the court must impose at least the prescribed minimum sentence – If such circumstances are present, the court has option either to impose a lesser sentence than the prescribed minimum one; or, in case of first conviction for stock theft, impose such lesser sentence but conditionally suspend part thereof in terms of section 297(4) of the Criminal Procedure Act 1977 – The said subsection (4) only permits suspension of part of a sentence passed but not the whole of it.



CASE NO.: CR 10/2008

IN THE HIGH COURT OF NAMIBIA

In the matter between:

THE STATE

vs

DAVID SACKY KHARUCHAB

(HIGH COURT REVIEW CASE NO.: 192/2008)

CORAM:            SILUNGWE, AJ et LIEBENBERG, AJ

Delivered on:    2007.02.26
___________________________________________________________________________

REVIEW JUDGMENT

SILUNGWE, AJ    
[1]      In this automatic review matter, the accused appeared before the Outjo Magistrate’s Court on a charge of stock theft in contravention of section 11(1)(a) read with sections 1, 14 and 17 of the Stock Theft Act, Act 12 of 1990 (the Act), as amended (by Act 19 of 2004). Following his trial and conviction, he was sentenced as follows:

2 years imprisonment wholly suspended for 5 years on condition that the accused is not convicted of contravening section 11 of Act 12 of 1990 as amended.”


[2]      The sentence is irregular because the presiding Magistrate failed to apply section 14(2) of the Act, which is couched in these terms:

14(2) If a court is satisfied that substantial and compelling circumstances exist to justify the imposition of a lesser sentence than the sentence prescribed in subsection (1)(a) or (b), it shall enter those circumstances on the record of the proceedings and may thereupon impose such lesser sentence.”

[3]      It follows that, in all cases of stock theft which attract a prescribed minimum sentence, in terms of section 14(1)(a)(i) and (ii) of the Act, a court must, upon conviction, but before passing sentence, consider and determine whether or not substantial and compelling circumstances exist in the matter.

[4]      In the event of the court finding that substantial and compelling circumstances are non-existent, it has no option but to impose at least the prescribed minimum sentence of imprisonment, without the option of a fine.

[5]      However, once substantial and compelling circumstances are found to be present, and such circumstances are necessarily entered on the record of proceedings, the court has two options, to wit, it may simply impose a lesser sentence than the minimum sentence prescribed in subsection (1)(a)(i) or (ii) of section 14 aforesaid; or, in the case of a first conviction for stock theft (vide section 14(4) of the Act), it may impose such lesser sentence but order that a part thereof be suspended for a period not exceeding five years on such conditions as it may deem appropriate, in terms of section 297(4) of the Criminal Procedure Act, Act 51 of 1977. For ease of reference, that subsection reads:

297(4) Where a court convicts a person of an offence in respect of which any law prescribes a minimum punishment the court may in its discretion pass sentence but order the operation of a part thereof to be suspended for a period not exceeding five years on any condition referred to in paragraph (a)(i) of subsection (1).”

(Emphasis is provided).

In other words, where a court is sentencing a person convicted of a crime in respect of which the law prescribes a minimum punishment (part of which may, in the court’s discretion, be conditionally suspended), it is impermissible for such court to order (as was done in the instant case) the suspension of the whole sentence, since such sentence would plainly violate the provisions of subsection (4) of the said section 297.

[6]      In conclusion the following order is made:

1.       the conviction is in accordance with justice and it is accordingly confirmed;

2.      
the sentence of two years imprisonment is set aside;

3.      
the case is remitted to the presiding Magistrate for sentencing in conformity with section 14(1)(a)(i) of the Stock Theft Act, 1990, as amended, and section 297(4) of the Criminal Procedure Act, 1977.



___________________
SILUNGWE, AJ

I agree



_______________________
LIEBENBERG, AJ
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