Court name
High Court
Case number
16 of 2012
Title

S v Johnson (16 of 2012) [2012] NAHC 134 (30 May 2012);

Media neutral citation
[2012] NAHC 134
Coram
Liebenberg J
Tommasi J















IN
THE HIGH COURT OF NAMIBIA





NORTHERN
LOCAL DIVISION





HELD
IN OSHAKATI


CASE
NO.: CR16 /2012








In
the matter between:








THE
STATE








versus








ROLF
JOHNSON















(HIGH COURT REVIEW CASE
NO.:13/2012 )





CORAM:
Liebenberg J et Tommasi J








DELIVERED
ON:
30 May 2012










REVIEW JUDGMENT











TOMMASI J [1]
This matter was sent for review from the district court of Eenhana.
The accused was convicted of having contravened section 29(5) of
Immigration Control Act, 7 of 1993 and sentenced to a fine of
N$6000.00 or 20 (twenty) months imprisonment.







[2] The accused pleaded guilty
and after questioning the accused in terms of section 112(1)(b) the
accused was convicted. The conviction is in order but the Court
requested the magistrate to provide reasons for the sentence imposed.
Scant evidence was placed before the magistrate by the accused in
mitigation and the sentence appears to be harsh in comparison with
other sentences imposed by the same magistrate for more serious
immigration offences.







[3] The magistrate responded to
the issues raised as follow:



there
is no duty to solicite from the accused more and relevant best
evidence he wishes to give in mitigation, but the court has the duty
to explain the right to give evidence in mitigation”;
and







I
am unable to say precisely what the reasons for the approach in this
case in comparison with case 920/2011; 910/2011 and 911/2011 because
the case record of the referred cases are not attached, however it
our trite law that each case has to be decided on its own merit. The
crime fact, the aggravating factors might not be the same
.
(sic)”










[4] The accused overstayed
after the expiry of his entry visa for a period of 32 days. After
conviction the magistrate explained his rights to mitigate before
sentence “as per annexure”. It appears from the
record that the accused opted to address the court and he placed the
following before the magistrate: “I am unemployed, my
contract expired, I pray for a court fine.”







[5] The explanation to mitigate
as per the annexure does not make any sense. It must however
be accepted that what appears on the annexure was read verbatim to
the accused. The annexure reads as follow:



You
are informed that before the court passes the sentence, you have now
a right to address the court on the matter of sentence. You may now
bring to the attention of the court mitigating factors.
Mitigating
factor which if brought to the knowledge of the court could have
passed in the absence thereof (sic)

[my
emphasis]







The accused would have been in
no position to fully understand the purpose of the enquiry from the
aforesaid explanation.
1







[6] Duty of a magistrate
during sentencing proceedings:
. Section 112(3)of the
Criminal Procedure Act, 51 of 1977 provide as follow:



Nothing
in this section shall prevent

the
prosecutor from presenting evidence on any aspect of the charge, or
the
court
from
hearing evidence, including evidence or a statement by or on behalf
of the accused, with regard to sentence, or
from
questioning the accused on any aspect of the case for the purposes of
determining an appropriate sentence.

[my emphasis]







These provisions clearly
empower the magistrate to pose questions to an accused in order to
arrive at an appropriate sentence. The magistrate in casu
erroneously believes that no duty rests on the presiding officer to
solicit any information from the unrepresented accused once his
rights to mitigate has been explained to him.







[7] Although the first duty to
place mitigating facts before the court rests on the accused, it
remains the ultimate responsibility of the presiding officer to
ensure that substantial justice is done. In
S
v Namaseb
2
it was held that the presiding
officer has, in imposing sentence, a duty to question the accused, if
the latter is not legally represented, thoroughly, insightfully and
objectively in connection with possible mitigating factors. In
instances where the accused do not provide any facts or place
insufficient facts before the court upon which the court may rely in
arriving at an appropriate sentence, then the court is not only
empowered to question such an accused but has a duty to do so,
provided that such questioning is fair to the accused.
3
In S
v Limbare
4
the Court held that this should
be done even where the accused was represented and insufficient facts
in mitigation were placed before the court by the legal
representative.







[8] When the accused informed
the magistrate that he can pay a fine and that he was unemployed, no
effort was made by the magistrate to clarify how, if the accused was
unemployed, he would be able to pay a fine; what amount he would be
able to pay from his own income; whether he has means to obtain
funds; and whether or not he has any dependants. These facts would
have placed the magistrate in a position to determine, along with
other factors,
5
whether a fine would be an
appropriate sentence and if so what the amount should be. The lack of
information before imposing such a hefty fine is tantamount to
sentencing the accused to effective imprisonment. If the aim was to
sentence the accused to effective imprisonment then the magistrate
should have done so instead of imposing a fine with no idea whether
he would be able to pay it or not. The manner in which this was done
creates the impression that the sentence was imposed in an arbitrary
manner.







[9] Consistency/Uniformity:
This Court raised the issue of disparate sentences imposed by the
magistrate. The magistrate correctly responded that each case must be
determined on its own merits. This however does not mean that the
magistrate should ignore decided cases which should serve as a
guideline in the exercise of her discretion. Is
S
v Jeremani
6
the district court imposed a
fine of N$6000.00 or two years imprisonment on an accused for
overstaying for 603 days. On review the sentence was considered to be
shockingly inappropriate and substituted with a fine of N$4000.00 or
16 months imprisonment of which N$2000.00 or 8 months were suspended.
In the aforementioned judgment Silungwe AJ agreed with what was
stated in this regard in The
State
v Paul Makonde
7
where Mainga J, as he then was,
stated the following:



While
I agree with the learned magistrate that the offence is serious, I
find the fine disturbingly high. It is nearly the maximum allowed by
the Act. It is obvious that the accused suffered from lack of money,
which is the reason he committed the offence
.
To impose such a large fine, which he appears unlikely to pay, is in
my view tantamount to sending him to jail directly
.
The Act provides that a person who contravenes s 29(5) may be dealt
with as a prohibited immigrant. This means that he may be removed
from Namibia under Part VI of the Act and presumably the relevant
authorities will take the necessary steps to do so. Namibian prisons
are overcrowded and a considerable burden on the fiscus. In my view
it would serve the interests of the community to give the accused a
partially suspended sentence to clear the way for him to be dealt
with under Part VI of the Act. In the unlikely event that he receives
a visitor's permit in future, he would be wise to obey its time
period, lest the suspended sentence be brought into operation
.'







The sentence imposed herein,
like the aforementioned cases, is equally shockingly inappropriate.
No consideration was given to suspend a part thereof.










[10] This Court received a
number of cases including this matter from the same court on
automatic review. All these matters were finalized during the same
period; presided over by the same magistrate; and involved
accused who pleaded guilty to immigration offences. It was noted that
a striking disparity existed between the other matters and the one at
hand. In one of the matters the accused was convicted of having
contravened section 6(1) of the Immigration Act, 7 of 1993 and was
sentenced to N$3000.00 or 12 months imprisonment. In terms of section
10 (3) a contravention of this section would render an accused on
conviction liable to a fine not exceeding N$20 000 or to imprisonment
for a period not exceeding five years or to both such fine and such
imprisonment. The offence the accused was convicted of, carries a
penalty of a fine not exceeding N$12 000 or imprisonment for a period
not exceeding three years or both such fine and such imprisonment.
Judging from the different maximum penalties that may be imposed for
the first mentioned offence, the legislator clearly considered that
offence more serious than the latter.







[11] The differences in the
circumstances of the accused in these two cases alone cannot account
for the fact that the same magistrate, in the same court dealt more
leniently with the offender who committed a more serious offence. The
decision to impose a fine of N$6000.00 or 20 months imprisonment
under the circumstances prevailing herein cannot rationally be
justified. The learned author SS Terblanch in Guide to Sentencing
in South Africa
on page 124 states as follow:


Consistency
in sentencing essentially has two components:



  1. It
    requires that similar sentences should be imposed when similarly
    placed offenders commit similar crimes.


  2. It
    requires that perpetrators of more serious crimes be sentenced more
    severely than those of less serious crimes (and vice versa) or; in
    other words that the most blameworthy offender receives the severest
    sentence (and vice versa).




Consistency
does not require that exactly the same sentence be imposed in similar
cases. It requires only basic consistency, which means that there
should not be any wide divergence in the sentence imposed in similar
cases. This should appeal to any reasonable person’s sense of
fairness and justice.”







The same author on page 122,
referring to S v Makwanyane 1995 (2) SACR 1, states that:



these
dicta are important for at least two reasons. The first is that they
clearly demonstrate that consistency is the principle which is in
accordance with justice and fairness and, secondly, that
arbitrariness (inconsistency) violates the right to equality.”







The place of consistency in the
sentencing process was formulated by Liebenberg AJ, as he then was,
in
The State v Janine
A Snyders
8
as follow:



In
short this means that each case has to be considered on its own facts
and, in regard to sentence, effect must be given therein to the
particular personal circumstances of the accused. These circumstances
obviously, will differ from one case to the next. These circumstances
must again be weighed up against other factors, also relevant when
determining sentence. Having done all this, the Court must look at
sentences imposed by the Courts in similar and related cases and must
not simply sentence in a vacuum”
9



[12] The sentence imposed by
the magistrate cannot rationally be explained given the failure to
solicit sufficient information from the accused and is shockingly
inappropriate. The magistrate clearly had no regard for the decided
cases providing guidelines when applying her discretion and moreover
failed to apply a measure of consistency in the cases which appeared
before her.







[13] The failure of the
magistrate to properly use her discretion when sentencing the accused
constitutes a grave misdirection which warrants this Court’s
interference with the sentence.







[14] The accused in this matter
was sentenced on 29 December 2011. He failed to pay the fine and is
currently serving the alternative sentence of twenty months
imprisonment. He served five months thereof to date hereof. The
accused, aged 46 years, is a first offender. It is evident that the
accused does not have the financial resources to pay a fine given the
fact that he was unemployed. The offence committed by the accused is
prevalent in the district but the Court must have regard to the fact
that the accused overstayed for a short period. Bearing in mind all
the available facts at hand in this particular case, the period
already served by the accused would suffice as an appropriate
sentence.







[15] Given the above the
following order is made:



1. The conviction is confirmed;



2. The sentence is set aside
and substituted with the following sentence: Five months
imprisonment.



3. The sentence is ante-dated
to 29 December 2011.



4. The accused is to be
released forthwith.















______________________



Tommasi J







I concur











_____________________________


Liebenberg
J



1See
N C Steytler in The Undefended
Accused, page 184




21991
(1) SACR 223 (SWA)




3Also
see S v NAKASAL 1984 (1) SA 392 (SWA)




42006
(2) NR 505 (HC)




5See
S v VEKUEMININA AND OTHERS 1992 NR 255 (HC)




62009
(1) NR 149 (HC
)




7Case
No I 123/2005 (unreported
)




8CC45/2007,
an unreported case delivered on 28 February 2008 at paragraph [18]




9Also
see (HC) S v AUALA (No 2) 2008 (1) NR 240 (HC)





9