Case Title:

The State v Eloise Armstrong

Case No:

CR 60/2020

High Court MD Review No:

1194/2020

Division of Court:

Main Division

Heard before:

Mr Justice Liebenberg et

Lady Justice Shivute

Delivered on:

 27 August 2020

Neutral citation: S v Armstrong (CR  60/2020) [2020] NAHCMD 380 (27 August 2020)

The order:

1. The conviction is confirmed.

2. The sentence imposed is amended by the setting aside of the condition of community service and to read: N$2 000 or 12 months’ imprisonment, wholly suspended for a period of 3 years on condition that the accused is not convicted of contravening s 2 of Act 41 of 1971, committed during the period of suspension.

Reasons for order:

LIEBENBERG J (concurring SHIVUTE J)

1. The unrepresented accused appeared in the magistrate’s court for the district of Karibib on 1 count of contravening section 2(b) read with section 1,2 (i) and/or 2 (iv), 7, 8, 10, 14 and Part I of the Schedule to the Abuse of Dependence Producing Substances and Rehabilitations Centres Act 41 of 1971(hereafter referred to as the Act) – Possession of a dependence-producing substance i.e. 2 parcels of cannabis valued at N$ 40-00. She pleaded guilty and was questioned by the magistrate in terms of the provisions of s 112(1) (b) of the Criminal Procedure Act 51 of 1977 (hereafter referred to as the CPA) and accordingly convicted and sentenced to ‘N$2 000 or 12 months imprisonment in default of payment, wholly suspended for 3 years on condition that she shall not be convicted of possession of drugs, committed during the period of suspension and that the accused shall perform community service for 300 hours and supervised by the community service field officer’.

2. In terms of s 304(2) of the CPA a query shall be delivered to the trial magistrate to furnish reasons for convicting or for imposing a certain sentence, if it appears to the judge that the proceedings are not in accordance with justice or doubt thereto exists. This requisite may be dispensed with where the judge concerned is of the opinion that the conviction and sentence is clearly not in accordance with justice and the court is of the opinion that the convicted person may be prejudiced.

3. For reasons that will hereunder follow, the court will dispense with such requirement as, in its view, the proceedings are clearly not in accordance with justice.

4. The accused during mitigation of sentence indicated to court that she was a mother of 4 children,of which 2 are still minors and live with her. She indicated that she cannot afford a fine as she is unemployed and asked that the court consider community service.

5, A suitability assessment report for community service was compiled by Mr H.N Italamo, a community service orders field officer and submitted to court. Notably, the report indicated that the accused person was not suitable as she lived 26km out of the town of Usakos, while there is no institution nearby where she can be placed. Furthermore, she has two minor children with no one to look after them while she attends community service in town.

6. The court notwithstanding the recommendation that she was not suitable for community service for the aforementioned reasons, in addition to a fine (albeit suspended), passed a sentence of a 300 hours supervised community service without having invited the unrepresented accused to address the court on the report.

7.  It was incumbent on the magistrate, particularly in view of the fact that the report did not recommend the accused to be a suitable candidate for community service, and the fact that the accused is unrepresented, to have had the accused address the court on this issue before making a decision. By failing to do that, the court unilaterally rejected findings made by the officer without any apparent reason and made a finding without having heard the accused as to the suitability of imposing community service as proposed by her. It therefore cannot be said that the magistrate acted fairly and objectively, as he did not have regard to all the facts before court.  

8. Ordering an accused who is 26 kilometres away from a community service institution to travel thereto possibly every day, in a bid to comply with a condition of sentence, in circumstances where it seems impossible for the accused to comply with, in our view, is unreasonable and not in the interest of justice. The suspended condition of community service imposed clearly does not fit the offender. It is trite law that an essential requirement of suspensive condition is that it must be formulated in such a manner that it does not cause future unfairness or injustice.[1] Though the magistrate must be commended for considering community service as a sentencing option, the personal circumstances of the accused simply did not warrant invoking same, unfortunately.

9. In addition to the above, this court notes with concern the blatant factual mistakes made in the court’s judgment on sentence ex facie the record. It would appear to be an amalgamation of ‘copy-pasted’ material, presumably from other judgments/ruling in similar cases, culminating into a distortion and misrepresentation of the correct facts before the court. From its plain reading, the ruling refers to the accused being convicted under section 3 and not section 2, as charged; further that she was firstly found in possession of 5 grams of cannabis valued at N$5 000, but thereafter this changes to 46 grams of cannabis and then, back to 5 grams. In this regard, the ruling clearly does not reflect the correct section or facts in respect of the substance found in possession of the accused. Care should be taken in future to guard against such muddled rhetoric and it will be advisable for the magistrate to apply his mind to the matter before him, especially when it comes to sentencing the accused.

10. As a result of the aforegoing, the sentence imposed cannot be allowed to stand and the following order is made:

1. The conviction is confirmed.

2. The sentence imposed is amended by the setting aside of the condition of community service and to read: N$2 000 or 12 months’ imprisonment, wholly suspended for a period of 3 years on condition that the accused is not convicted of contravening s 2 of Act 41 of 1971, committed during the period of suspension.

J C LIEBENBERG

JUDGE

N N SHIVUTE

JUDGE