CASE NO.: CA 87/2008
IN THE HIGH COURT OF NAMIBIA
In the matter between:
GILLIAN SWIEGERS APPELLANT
THE STATE RESPONDENT
CORAM: NDAUENDAPO, J et SIBOLEKA, J
Heard on: 2010 June 11
Delivered on: 2010 June 11
 This is an appeal against a sentence of direct imprisonment, eighteen (18) months. At the conclusion of arguments by both counsel the sentence was set aside and substituted for the following:
N$10,000,00 or four (4) years imprisonment of which N$5,000,00 or two (2) years are suspended for five (5) years on condition that:
The appellant pays the Manager, Nedbank Swakopmund, the amount of N$5,000,00 as damages occasioned to the ATM, and that proof of such payment be furnished to the Clerk of the Magistrates Court, Swakopmund on or before the 30th of July 2010.
That the accused is not convicted of the offence of malicious damage to property, committed during the period of suspension.
 The Court had indicated at that stage that the reasons would be given at a later stage. These are the reasons.
 The appellant was convicted in the District Magistrate’s Court, Swakopmund on a charge of malicious damage to property involving an ATM machine screen allegedly valued at N$10,000,00.
 During the trial in the Court a quo he was undefended and his conviction followed a guilty plea and subsequent questioning in terms of section 112 (1)(b) of Act 51 of 1977.
 When this matter was heard before this Court, Adv. Botes appeared for the appellant and Adv. Campher for the respondent. This Court appreciates their valuable contributions in this regard.
 The grounds of appeal are as follows:
“It is respectfully submitted that the learned magistrate misdirected herself on the facts of this matter as no evidence was adduced in respect of inter alia the following important aspects:-
Whether the appellant hit the damaged screen with his fist more than once.
The precise nature of the damages inflicted to the broken and/or damaged screen.
The measure of force necessary to damage and/or break the screen to the extent that the appellant did.
Whether the broken and/or damaged screen was still operational after having been hit by appellant.
Whether the appellant had knowledge of the high value of the replacement costs of the screen when he struck the screen in anger.
As such, as already submitted, the learned magistrate had no factual basis to, without sacrificing the principle of individualization of sentencing, to conclude that the offence indeed was such a serious one, even in the light of the appellant’s previous conviction on a similar offence, to warrant a direct period of imprisonment 18 months.
In this regard, it is respectfully submitted that, apart from the aforegoing, the learned magistrate clearly erred in the law and/or on the facts to give no, alternatively insufficient weight to the following facts, namely:
That the offence was committed in anger.
That the appellant pleaded guilty to the said charge.
The appellant’s apparent ability to pay a substantial fine and if to, if the aspect had been properly investigated by the learned magistrate, compensates the complainant for the damages suffered, the combined effect of which would clearly have satisfied the aspects of retribution, as well as deterrence in the circumstances.
The possible devastating consequences of the period of imprisonment on the appellant’s life, as well as future employment.
That the appellant, in the past, did not receive a suspended sentence for the offence, previously committed.”
 The facts of this matter are briefly that the appellant wanted to withdraw cash (money) at an ATM machine at Nedbank, in Swakopmund. After the machine could not give him the money, he got angry and broke the screen thereof by hitting it with a fist.
 It was argued on behalf of the appellant that after the Public Prosecutor had asked for a direct imprisonment in aggravation of sentence, the Court a quo did not avail the appellant an opportunity to reply to that request. It is this Courts’ view that direct imprisonment is indeed a drastic measure that encroaches on the liberty of the individual and as such it would have been appropriate for the Court below to hear the appellant in that regard.
 It was further argued by Adv. Botes that the undefended appellant should also have been assisted to place the relevant personal circumstances appropriately before the learned Magistrate than it has been the case. From the record itself the following appears as the appellant’s mitigation of sentence.
I will address the Court:
“Not married. No children. Working at Grant Browse Adventures. I do camera work. Earn N$3,000,00 per month. I have money for a fine. Nothing else to say.”
 From the above it appears that the appellant did not anticipate to be directly sent to prison without being afforded an opportunity to pay a fine. It is this Court’s considered view that this impression on the part of the appellant would have been easily removed from his mind had he been given and or invited by the Court below to say something in reply to the Prosecutor’s request for direct imprisonment.
 Adv. Campher argued for the respondent that the sentence was in order given the fact that the appellant attacked the ATM machine without being provoked by any other person. He further argued that the Court was persuaded to impose a custodial sentence because the appellant had a similar record.
 Not withstanding the fact that the ATM screen is a valuable item meant for the use of members of the public, there was no evidence regarding its operational aspect. In view of the machine’s use, it would have been of much assistance to the Court below to establish whether the appellant’s fist blow rendered it unfunctional or not. This not being the case, reliance by the Court below on the fact that the offence is serious cannot be confirmed.
 In the light of the above a wholly custodial sentence is too harsh and in appropriate in the circumstances. This Court is of the opinion that although the appellant has a similar previous record, he should nonetheless have been given a sentence coupled with an alternative of a fine. The reason being that malicious damage to property is not such a serious offence that would require the appellant to be removed from society like it would be the case with a dangerous person.
 After carefully considering the arguments of counsel for both parties this Court felt that the sentence imposed by the Magistrate should not be allowed to stand.
 While seized with the review of a matter involving a first offender this Court has per my brothers Muller, J and Frank, AJ as he then was in S v Lisethe Case No. CR 95/2008 (High Court Review Case No. 880/2008) delivered on the 30th of June 2008 expressed a view that offenders in respect of lesser offences (less serious offences) albeit prevalent should not be given non-custodial sentences as a normal rule.
 For these reasons the appeal against sentence was upheld.
COUNSEL ON BEHALF OF THE APPELLANT: MR. BOTES
INSTRUCTED BY: LEGAL AID
COUNSEL ON BEHALF OF THE RESPONDENT: MR. CAMPHER
INSTRUCTED BY: THE OFFICE OF THE