Court name
High Court
Case number
CRIMINAL 3 of 2012
Case name
S v Wilibard
Media neutral citation
[2012] NAHC 11
Judge
Liebenberg J
Tommasi J













CASE NO.: CR 03/2012







IN THE HIGH COURT OF NAMIBIA



HELD IN OSHAKATI







In the matter between:











THE STATE











and











MARIA WILIBARD







(HIGH COURT REVIEW CASE NO.:
296/2011)







CORAM:
LIEBENBERG, J et TOMMASI J







Delivered on: 20/01/2012







REVIEW JUDGMENT







TOMMASI, J.:
[1] The accused, a 14 year old female was charged with and
convicted of having contravened section 2(b) of the Abuse of
Dependence-Producing Substances and Rehabilitation Centres Act 41 of
1971 (RSA) having been found in possession of 1gram of seeds of
Cannabis (dagga) valued at N$3.00. The accused, having pleaded
guilty, was convicted in terms of section 112(1)(a) of the Criminal
Procedure Act, 51 of 1977 and sentenced to one year imprisonment to
be served at Elizabeth Nepembe Centre.







[2] I am of the opinion that
the conviction and sentence imposed is clearly not in accordance with
justice and that the accused who is a juvenile may suffer irreparable
harm if the matter is not dealt with forthwith. It is for these
reasons that no statement was obtained from the presiding magistrate.







[3] The magistrate, at the
behest of the State Prosecutor, convicted the accused on her mere
plea of guilty. A pre-sentencing report was submitted into evidence
for the purpose of sentence. The recommendations of the probation
officer was that; the accused be released into the care of her
father; that the accused receive a suspended sentence; she be ordered
to return to school and that she attends a Life Skills Programme at
the Ministry of Youth under the supervision of the probation officer
at the Ministry of Gender Equality and Child Welfare. The State
objected to the recommendations of the probation officer and proposed
that the accused be sent to a rehabilitation centre because the
accused “is not able to be controlled by the parents”.
The father, who was also in attendance in his capacity as the
guardian of the accused, was called to testify. He testified that he
has no objection to the accused being sent to the rehabilitation
centre as she was “misbehaving”. The accused,
although the guardian was present, was unrepresented. She informed
the magistrate that she is a changed person and that she stopped
going to school to avoid the bad influence of her friends. The
accused, at the time of sentencing, had already spent three months in
custody without being released into the care of her father. The
magistrate in her reasons for sentence recorded that she had
considered the personal circumstances of the accused, the
pre-sentence report and the recommendations by the State prosecutor
and was of the opinion that a one year imprisonment at the Elizabeth
Nepembe Rehabilation Center was appropriate.







[4] Section 112(1)(a) provides
that:



Where
an accused at a summary trial in any court pleads guilty to the
offence charged, or to an offence of which he may be convicted on the
charge and the prosecutor accepts that plea-



  1. the
    presiding judge, regional magistrate or magistrate may, if he or she
    is of the opinion that the offence does not merit punishment of
    imprisonment
    or any
    other form of detention without the option of a fine or of a fine
    exceeding N$6 000
    ,
    convict the accused in respect of the offence to which he or she has
    pleaded guilty on his or her plea of guilty only








The
magistrate thus could not impose a sentence of imprisonment or any
other form of detention in terms of a conviction under s 112(1)(a)
1.



This
includes the detention at a rehabilitation centre.
2



[5] The
sentence imposed herein, given the youthfulness of the accused who
was a first offender and the negligible quantity of cannabis, is
shockingly inappropriate. The magistrate, without calling the
probation officer to testify was persuaded only by the objection of
the prosecutor to reject the recommendations of the probation
officer. The probation officer spent considerable time and effort to
compile the report and the appropriate action would have been to call
her as a witness in order to respond to the objections by the State
to her recommendations. It cannot be said under these circumstances
that the judicial officer gave proper consideration to the
pre-sentencing report.







[6] The accused in this matter
is described in the report as a troubled teenager who due to peer
pressure was experimenting with petty crimes. It is trite law the
courts should be: “particularly careful when designing
sentences, for youthful offenders given the formative effect it may
have on the development of their personalities ...” [S v BEGLEY
2000 NR 112 (HC) at page 114 I-J].
Custodial sentence, albeit
ordered that it be served at a rehabilitation centre, should be
reserved for juveniles who commit serious offences.







[7] A further option which was
available to the magistrate was to act in terms of section 254 (1) of
the Criminal Procedure Act, 51 of 1977 which provides that:



If
it appears to the court at the trial upon any charge of any accused
under the age of eighteen years that he is a child in need of care as
defined in section 1 of the Children's Act, 1960 (Act 33 of 1960),
and that it is desirable to deal with him in terms of sections 30 and
31 of that Act, it may stop the trial and order that the accused be
brought before a children's court mentioned in section 4 or 5 of that
Act and that he be dealt with under the said sections 30 and 31.”











[8] The prosecutor raised the
issue of poor parental control of the accused. This is a clear
indication that the accused was a child in need of care as defined by
section 1 of the Children’s Act, 1960 (Act 33 of 1960).







[9] I am of
the view that the conviction and sentence should be set aside without
remitting it to the magistrate. The State already had an opportunity
to adduce evidence herein and opted not to do so
3.
The accused may and should be brought before the Children’s
Court for an enquiry in an attempt to find a solution for a child
clearly in need of care.















[10] In the premises the
following order is made:








  1. The conviction and sentence
    are set aside




































__________________________



TOMMASI, J











I agree.











__________________________



LIEBENBERG, J



1
S v ALUDHILU 2007 (1) NR 70 (HC)




2
See S v TOLMAY 1980 (1) SA 182 (NC) [Head note: Committal to a
rehabilitation centre in terms of s 296 of the Criminal Procedure
Act 51 of 1977 is a form of detention without the option of a fine
as intended in s 112 (1) (a) (i) of the Act. Accordingly, an order
of detention in a rehabilitation centre in terms of s 296 cannot be
made where an accused is convicted in terms of s 112 (1) (a) (i)
only on the basis of his plea of guilty.




3
S v Sekhulu 1969 (2) SA 143 (T) & S v TOLMAY 1980 (1) SA 182
(NC)