Court name
High Court
Case number
CA 56 of 2010
Case name
Shivute v S
Media neutral citation
[2011] NAHC 67





CASE NO







5




CASE
NO.: CA 56/2010









IN
THE HIGH COURT OF NAMIBIA








In
the matter between:












ESTER
SHIVUTE
….........................................................................................APPELLANT







versus



THE
STATE
…..............................................................................................RESPONDENT






CORAM:
DAMASEB,
JP
et
UNENGU,
AJ



Heard
on: 2011 March 11



Delivered
on: 2011 March 11











APPEAL
JUDGMENT











UNENGU,
AJ
[1]
The Appellant, a 27 years old mother of two minor children was
charged with malicious injury to property in the Swakopmund
Magistrate's Court. She pleaded guilty to the charge, was questioned
by the learned Magistrate in terms of s. 112(1)(b) of the Criminal
Procedure Act 51 of 1977 (the Act), convicted as charged and
sentenced to three (3) years imprisonment. This happened on 29
September 2010.











[2]
Before the Record of proceedings in the matter could be submitted to
the High Court for automatic review, the Appellant drafted a letter
in her own handwriting in which she gave Notice to appeal the
sentence. The letter was dated 6 October 2010 which is within the
prescribed period of fourteen (14) days after she was sentenced. In
this letter of Notice of Appeal, she indicated that she was
appealing against the sentence, because it was too harsh.











[3]
She indicated further that the property (damaged) belonged to her
boyfriend, the father of her children. Furthermore, Appellant
submitted that the learned Magistrate misdirected himself to send
her to prison without the option of a fine.











[4]
The Appellant conducted her own defence in the court
a
quo
and
again is prosecuting the appeal in person, while Respondent is
represented by Ms. Jacobs from the Prosecutor-General's office. In S
v
Rabie
1975
(4) SA 855 at 857 D-E, Holmes, JA laid down the following
guidelines:











"1. In every
appeal against the sentence, whether imposed by a magistrate or a
Judge the Court hearing the appeal -



(a) should be guided
by the principle that punishment is 'pre­eminently a matter for
the discretion of the trial Court'; and



(b) should be careful
not to erode such discretion: hence the further principle that the
sentence should only be altered if the discretion has not been
'judicially and properly exercised'.



2. The test under (b)
is whether the sentence is vitiated by irregularity or misdirection
or is disturbingly inappropriate."











See
also S v Giannoulis 1975(4) SA 867 at 865 F-H.











[5]
It is also trite that in search of an appropriate sentence the Court
must always consider the crime, the offender and the interests of
society (S v Zinn 1969 (2) 537 (A)). The punishment should fit the
criminal as well as the crime, be fair to society and to the accused
and be blended with a measure of mercy.
(S
v Sparks
1972
(3) SA 396 at 410 H). The Court should also have in mind that the
convicted person should not be visited with punishment to the point
of being broken.
(Sparks
supra).











[6]
In this appeal, Appellant was found guilty on her own plea of guilty
to a charge of malicious injury to property of her boyfriend. The
annexure to the charge sheet only alleged that the Appellant
(accused) "on or about the 21
st
day
February 2010 at House number 947, Lukas Nehoya Street, Mondesa in
the district of Swakopmund did wrongfully, unlawfully and
maliciously break and/or damage and/or various properties valued at
N$11 931.25, the property or in the lawful possession of Abel
Amutenya with intent to injure the said Abel Amutenya in his
property" without specifying which properties were damaged.











[7]
However, Appellant, on her own accord and honesty listed the items
she allegedly damaged. The same goes with regard to the value of the
damaged property. Appellant herself admitted the value being N$11
931.25.



[8]
In mitigation of sentence Appellant told the court, amongst others,
that she was no longer living with the boyfriend but was in a
domestic relationship with complainant at the time she committed the
offence. She said that she was a mother of two children of five (5)
and three (3) years old with complainant. Further, that she was
employed at a China Shop in Mondesa as a cleaner earning N$500.00
per month and as such, asked for a suspended sentence. In spite of
this, coupled with the fact that she had pleaded guilty to the
charge against her -which is in itself a mitigating factor - and
that this was her first offence in her life, the learned Magistrate
sent her to jail for three (3) years.











[9]
In our view, the Magistrate over-emphasised the seriousness of the
offence and the interests of the society and paid very little
attention or none to the personal circumstances of the Appellant.
More so, when he failed to consider other options of punishment like
a suspended sentence. It is apparent from the reasons for sentence
of the Magistrate that he made up his mind to send Appellant to jail
for a long period of time. He resorted to strong words like "it
is thunder and lightning sentence that is required to protect the
community", "the message here is deterrence to denounce
the pulsive conduct of the accused", "the sentence will
not be a mere slap on the wrist" and also words like "the
sentence should reflect the determination of the Swakopmund
Magistrates to give effect to and protect the constitutional values
of the inviolability of human dignity, right to property and
equality between men and women". Ms. Jacobs, Counsel for the
Respondent, submitted written Heads of Argument, which she amplified
with oral submissions in support of the sentence. She referred the
Court to various cases dealing with sentencing and concluded that
the appeal against the sentence be dismissed. We disagree.







[10]
In our view the sentence imposed on Appellant is too harsh,
disturbingly in appropriate and induces a sense of shock. That being
the case, the sentence imposed by the learned magistrate cannot be
allowed to stand as it is. Where the trial Court misdirected itself,
this Court is entitled to interfere and impose the sentence afresh.















[11]
For the reasons stated above, the appeal should be allowed.















[12]
Consequently, the following orders are made:



1.
the appeal against the sentence succeeds partially.



2.
the sentence of three (3) years imprisonment imposed by the
Magistrate is set aside and is substituted for the sentence
hereunder:











Six
(6) months imprisonment.











3.
The
sentence is antedated to 29
th
of
September 2010.






















UNENGU,
AJ























I
agree










DAMASEB,
JP










COUNSEL
ON BEHALF OF THE APPELLANT:

In
Person



















COUNSEL
ON BEHALF OF THE RESPONDENT:
Ms.
Jacobs















Instructed
by:
The
Office of the Prosecutor-General