S v Simon (CR 39/2010) [2010] NAHC 80 (17 August 2010);

Group

Full judgment



REPUBLIC OF NAMIBIA


CASE NO.: CR 39/2010


IN THE HIGH COURT OF NAMIBIA


In the matter between:

STATE

versus

FERNANDU SIMON


(HIGH COURT REVIEW CASE NO.: 652/10)


CORAM: VAN NIEKERK, J et MULLER, J

Delivered on: 17 August 2010

______________________________________________________________________________

REVIEW JUDGMENT

VAN NIEKERK, J [1] In this matter the accused was charged in the Magistrate’s Court at Usakos with theft, read with the provisions of the Stock Theft Act, 12 of 1990, of a goat to the value of N$500. The accused pleaded guilty and after questioning in terms of section 112(1)(b) of the Criminal Procedure Act, 51 of 1977, he was convicted.


[2] The magistrate sentenced the accused to 2 years imprisonment wholly suspended for a period of 5 years on condition that the accused is not convicted of “an offence contravening provisions of the Stock Theft Act 19 of 1990”.


[3] When the matter was sent for automatic review, I directed several queries to the trial magistrate, of which only the following are still relevant:

1. Is the sentence a competent sentence, bearing in mind the alleged value of the goat?

2. ........

3. ........

4. Should the magistrate not have determined if any substantial and compelling circumstances existed which justified the imposition of a lesser sentence than the sentence prescribed by the Act?”



[4] As I understand the learned magistrate’s response to the first question, he in effect acknowledges that, because the value of the goat was N$500 the sentence of 2 years imprisonment would not be competent unless there were substantial and compelling circumstances justifying the imposition of a lesser sentence. This is correct, because section 14(1)(a)(ii) of the Stock Theft Act provides for a penalty of imprisonment for a period not less than 20 years without the option of a fine where the value of the stock is N$500 or more.


[5] The learned magistrate acknowledges in his response to the fourth question that it is crucial to determine if substantial and compelling circumstances exist that would justify a lesser sentence. He states in his reasons that in his view the facts placed before the court by the accused in mitigation of sentence amount to compelling and substantial circumstances. He states that these circumstances, weighed with the prosecutor’s submission in which he called for a suspended sentence persuaded him that a sentence of imprisonment of 20 years was not warranted in this case.


[6] The magistrate however did not comply with section 14(2) of the Stock Theft Act, because he did not enter the substantial and compelling circumstances on the case record. He did not even explain to the accused that he could place such circumstances before the court. However, in the light thereof that the magistrate in fact concluded that there were indeed substantial and compelling circumstances, the accused was not prejudiced by the failure to explain. The magistrate should just have recorded the explanation in full and have entered the substantial and compelling circumstances on the record.


[7] I am in agreement that there were indeed such circumstances. It will not be in the interest of justice that the matter be remitted to the magistrate to record these circumstances on the record, as the accused will have to be brought back to court for just this purpose. I shall therefore record the circumstances in this judgment. These are that the complainant, who was accused’s employer, had not provided food rations to the accused for 8 months and had also punished the accused for some undisclosed transgression by withholding his salary for 4 months; the accused used most of the N$300 he received in return for selling the goat to buy maize, sugar and washing powder; the stolen goat was returned to the owner; the accused pleaded guilty and showed remorse; he is a first offender at age 33 and is employed as a herdsman with a new employer who pays him N$300 per month; the prosecutor asked that a lenient sentence be imposed; and that the value of the goat was on the borderline between the minimum sentence of 2 and 20 years imprisonment.


[8] In the light thereof that substantial and compelling circumstances were found to exist, the magistrate was at liberty to impose any appropriate lesser sentence of imprisonment.


[9] In the Full Bench decision of The State versus Mbahuma Tjambiru (Unreported High Court Review Case No CR 47 – 49/2008 delivered on 21 July 2008) the following was stated (at page 9):

[8] Where “substantial and compelling circumstances” were found to be present the Court is free to impose any lesser sentence on the first offender and as no minimum sentence is applicable, to suspend the whole of the sentence so imposed. This is so because the matter is then dealt with in terms of s. 297(1)(b) of the CPA as the finding of “substantial and compelling circumstances” negated the applicability of s. 297(4) of the CPA.”



[10] The fact that the magistrate totally suspended the sentence of two years is therefore in order. I am however of the view that the condition of suspension is too wide because it provides that accused may not commit any offence contravening the Stock Theft Act. In my view it should be limited to theft of stock.


[11] In the result the following order is made:

1. The conviction is confirmed.

2. The sentence is confirmed, except that the condition of suspension is altered to read “on condition the accused is not convicted of theft of stock, read with the provisions of the Stock Theft Act, 12 of 1990, as amended, committed during the period of suspension.”







____________________

VAN NIEKERK, J







I concur.







____________________

MULLER, J



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