REPORTABLE
REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK
JUDGMENT
Case no: CA 06/2012
In the matter between:
SAKARIA JOSEPH
.....................................................................................APPELLANT
and
THE STATE
..............................................................................................RESPONDENT
Neutral citation:
Joseph v State (CA 06/2012) [2012] NAHCMD 40 (24 September
2012)
Coram: MILLER AJ
and PARKER AJ
Heard: 24
September 2012
Delivered: 24
September 2012
Flynote: Criminal
procedure – Appeal – Sentence – Minimum sentence –
Stock Theft Amendment Act 19 of 2004 – Minimum declared
unconstitutional in earlier decision – This court bound by that
decision.
Summary: Criminal
sentence – Stock Theft Amendment Act 19 of 2004 – Court
finding that sentence imposed was primarily influenced by the
impugned minimum sentence provisions in terms of Stock Theft
Amendment Act 19 of 2004 – This court bound by decision of the
court declaring minimum sentence under that Act unconstitutional –
In casu court at large to impose appropriate sentence,
considering the factors to be taken into account in sentencing –
Having done so, court concluding that the sentence imposed by trial
court induces a sense of shock in the mind of the court –
Consequently court upholding the appeal.
ORDER
The appeal against
sentence is accordingly upheld. The conviction of appellant is
confirmed. The sentence imposed by the Regional Court is set aside
and substituted with the following: The appellant is sentenced to 10
years’ imprisonment which is backdated to 29 July 2010.
JUDGMENT
PARKER AJ (MILLER AJ
concurring):
[1] The appellant,
accused number 2 in the trial court was charged with two other
accused persons before the Otavi District Magistrates Court with the
offence of theft in terms of s 11 (1)(a) of the Stock Theft Act 12 of
1990 as amended.
[2] The appellant and
accused number 2 were found guilty and accused number 3 not guilty of
the theft of four head of cattle, that is, one bull and three cows
valued at (N$22 000,00). The trial district Magistrate Court
accordingly referred the matter of sentencing to the Regional Court
in Otjiwarongo in terms of s 116 of the Criminal Procedure Act 51 of
1977.
[3] On 29 July 2010 the
Regional Court found that the conviction was in accordance with
justice and sentenced the appellant and the other accused to 20
years’ imprisonment each, with five years suspended on
conditions, after finding that there were no compelling and
substantial circumstances for the court to impose a lesser sentence
than that prescribed by the Stock Theft Amendment Act 19 of 2004.
[5] The appellant now
appeals against both conviction and sentence. In the course of her
submission the appellant’s counsel Ms Hamutenya abandoned the
appeal against conviction. And the counsel for the state, Mr. Moyo,
opposed the late filling of the appellant counsel’s heads of
argument, but in the course of his oral submissions he abandoned his
challenge. We now pass to consider the appeal on sentence.
[6] We do not accept the
submission by Mr. Moyo that because arguments have been heard by the
Supreme Court on the constitutionality of s 14 (1) of the Stock Theft
Amendment Act 19 of 2004 in the matter of Daniel v Attorney
General & others and Peter v Attorney General & others,
the prescribed minimum sentence still apply. It has not been
established that the decision of the High Court is wrong and,
therefore, cannot be followed. In any case, that decision has been
applied in two cases by the High Court, e.g. in S v Hoeseb
2012 (1) NR130. The irrefragable fact is that as we consider this
appeal the prescribed minimum sentence under the Stock Theft
Amendment Act 19 of 2004 is unconstitutional.
[7] Having said that, it
cannot escape our observation that the sentence imposed on the
appellant was influenced primarily by the impugned legislation. We
are therefore at large to consider an appropriate sentence. Mr. Moyo
submits along those lines also.
[8] The trial court
considered, as the appellant’s counsel concedes in her heads of
arguments, that the sentencing court took into account the personal
circumstances of the appellant and other important factors required
to be taken into account in sentencing. But, as we have said, the
sentencing court was influenced primarily by the impugned
legislation. Furthermore, the trial court found that the loss
suffered by the complainant was N$16 000,00. Without the prescribed
minimum sentence, it is our view that the sentence imposed on the
appellant comes to us with a sense of shock. Ms. Hamutenya submitted
that the case of S v Swartbooi referred to us is disguisable
on the basis that the appellant in that case was a repeat offender
and his 30 years’ sentence was cut into half by the Appeal
Court. Mr. Moyo agrees.
[9] As counsel for the
appellant submitted, while an effective sentence of 15 years may be
an appropriate sentence for murder or culpable homicide, it is not so
appropriate in this case taking into account the value of the stock
involved, the personal circumstances of the appellant and other
factors taken into account by the sentencing court. Nevertheless, we
accept Mr. Moyo’s argument that this court should take into
account the fact that stock theft is serious and prevalent. We have
done that.
[10] Having considered
all the facts and circumstances of the case, we conclude that the
appeal against sentence should be upheld. For these reasons we make
the following orders:
The conviction of the
appellant is confirmed.
The sentence imposed by
the Regional Court is set aside and the following is put in its
place: The appellant is sentenced to 10 years’ imprisonment,
and it is backdated to 29 July 2010.
----------------------------------
C Parker
Acting Judge
____________________
P J Miller
Acting Judge
APPEARANCES
APPELLANT : L HAMUTENYA
Instructed by Directorate
of Legal Aid
RESPONDENT: E MOYO
Of Office of the Prosecutor-General,
Windhoek
S v Joseph (CA 06/2012 ) [2012] NAHC 271 (24 September 2012);