Court name
High Court
Case number
CRIMINAL 116 of 2007
Case name
S v Owos-Oab
Media neutral citation
[2007] NAHC 187















CASE
NO.: CR 116/07






IN
THE HIGH COURT OF NAMIBIA



In the matter
between:



THE STATE



versus






CHRISTIE
OWOS-OAB






(HIGH
COURT REVIEW CASE NO.: 1161/06)


CORAM:
VAN NIEKERK,
J
et
SILUNGWE, AJ



Delivered on:
2007-08-10



REVIEW
JUDGMENT
:


VAN
NIEKERK, J
:





[1]
The accused in this matter was convicted on a charge of escaping from
lawful custody from the Karibib police station holding cells. He was
sentenced to 30 months imprisonment.






[2] On
a review I initially had some misgivings about the conviction, but
the magistrate's reasons are such that I am inclined to uphold the
conviction.





[3] When
I asked the learned magistrate for her reasons for sentence, she
responded:






"3. The
rationale behind the sentence imposed is because the accused had a
previous conviction and furthermore, the offence is becoming quite
prevalent in this district and the reasons frequently furnished by
accuseds is that the Police refused to take them to receive medical
attention or that the Police refused to take them to visit relatives.





The
sentence was not only aimed at specific deterrence but also at
general deterrence, to caution would be offenders."









[4] The accused is
a 35 year old person with a previous conviction for stock theft for
which he was sentenced to 18 months imprisonment during 2004. When
he escaped from custody he was awaiting trial on allegations that he
again stole stock. He pleaded guilty to the charge and stated that
he escaped to go to the hospital or clinic. He said that he is a
sick person and that the police refused to take him. The magistrate
clearly did not believe this story. However, the State did not
present any evidence to the contrary. There is therefore no basis on
which the magistrate could just reject the accused's alleged reason.
In my view she committed an irregularity which prejudiced the accused
because it motivated her to impose a long sentence.





[5] Apart
from this, the previous conviction on which the magistrate relies,
has no bearing on the charge of escaping from lawful custody. In my
view the sentence is unduly harsh in the circumstances of this case,
leading one to the conclusion that the learned magistrate over
emphasised the severity of the crime.





[6] I
therefore make the following order.






1. The conviction
is confirmed.





2. The
sentence is substituted with the following sentence:






12 months
imprisonment.






3. The sentence is
backdated to 21 August 2006.
















______________________________



VAN NIEKERK, J






I agree










_______________________________



SILUNGWE, A J