“SPECIAL INTEREST”

CASE NO.: CR 109/05

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

THE
STATE

versus

FRANS
NAKANGOMBE

HIGH
COURT REVIEW CASE NO. 1347/2005

CORAM: DAMASEB,
JP et VAN NIEKERK, J

Heard
on: 2005/11/05

Delivered
on: 2006/09/15

REVIEW JUDGMENT

[1]
DAMASEB, JP: This case comes to this Court on
automatic review. The accused who held the rank of corporal in the
Military Police, was 31 years old at the time of his conviction and
sentence on 11^th August 2005. He was convicted on three
counts as follows:

“1.1 Possession
of a machine gun (AK 47), in contravention of section 29(1)(a) read
with sections 1, 38(2) and 39 of Act 7 of 1996 (the Arms and
Ammunition Act) (“the Act”);

1.2 Possession of
a fire-arm (Tokarev pistol) without a licence, in contravention of
section 2 read with sections 1, 3 (6), 4, 8, 24, 34(2), 38 and 44;
and further contrary to section 33 read with sections 1 and 38(2) of
the Act; and

1.3 Possession of
ammunition in contravention of section 39 of the Act, (i.e. 2
magazines for the AK 47 with 60 live bullets and one Tokarev magazine
with 6 live bullets).

[2]
He was correctly found guilty on the three charges and sentenced as
follows:

“Count
1: 10 years imprisonment

Count
2: 3 years imprisonment

Count
3: 1 year imprisonment

Counts
2 & 3: to run concurrently with count 1”.

The
accused therefore got an effective term of imprisonment of 10 years.

[3]
The accused was also declared unfit to possess a fire-arm for a
period of 5 years in terms of s10(6)(7) of the Act. The order of
declaration of unfitness is also proper.

[4]
W hen the matter was placed before me on review, I caused the matter
to be enrolled for argument, directing the Society of Advocates to
assign amicus curiae to argue the matter in open Court on
behalf of the accused. The Court is indebted to Mr Heathcote both
for agreeing to act amicus curiae, and for the helpful
heads of argument. Mr Sibeya, for the State, also submitted helpful
heads of argument. The Court is indebted to both Counsel for their
industry.

[5]
The Court requested Counsel to address the following questions:

1. Was
   the learned magistrate correct in holding that s38(2) of Act 7 of
   1996 places “an obligation on the courts to impose direct
   imprisonment sentences”?
   

   
   

2. Considering
   that he took judicial notice of the increase in the type of offence
   in his district, was the learned magistrate not required to inform
   the accused of what he sought to do and afford him the opportunity
   to address the Court thereon?
   

   
   

3. Does
   the sentence imposed not induce a sense of shock?

   
   

I
will now deal with each of the questions.

Does
s38(2) oblige the Court to impose direct imprisonment?

[6]
The section provides as follows:

“38 Offences
and penalties

1. …

   
   

2. Subject
   to the provisions of this section, any person convicted of an
   offence under this Act shall be liable –

   
   

(a) in the case of
a contravention of section 29(1)(a), (b) or (c), to imprisonment for
a period not exceeding 25 years;

2. in
   case of –

   
   

1. the
   possession of an arm in contravention of section 2;

   
   

2. a
   contravention of section 29(1)(d) or (e);

   
   

3. a
   contravention of section 33, on account of being in possession of
   more than one hundred rounds of ammunition intended for firing an
   arm contemplated in subparagraph (i);

   
   

to a fine not
exceeding N$40 000 or to imprisonment for a period not exceeding ten
years or to both such fine and such imprisonment;

2. in
   the case of –

   
   

1. a
   contravention of or failure to comply with any provision of
   section 14, 22, 25, 26, 32 or 33 (not being a contravention
   referred to in paragraph (b)(iii) of this subsection);

   
   

2. a
   contravention or failure to comply with any provision, direction
   or requirement of a notice issued under section 30;

   
   

3. an
   offence referred to in subsection (1)(a), (b), (e), (f), (j) or
   (k);

   
   

to a fine not
exceeding N$12 000 or to imprisonment for a period not exceeding
three years or to both such fine and such imprisonment, or in the
case of a second or subsequent conviction for an offence referred to
in this paragraph, to imprisonment for a period not exceeding five
years;

2. in
   the case of a contravention of any other provision of this Act, to
   a fine not exceeding N$4 000 or to imprisonment for a period not
   exceeding one year or to both such fine and such imprisonment.”

   
   

[7]
Section 38(4) provides:

“Notwithstanding
anything to the contrary in any law contained, no person shall on a
conviction in terms of subsection (2)(a) be dealt with in accordance
with section 297¹
of the Criminal Procedure Act, 1977 (Act 51 of 1977), if such person
was at the time of commission of the offence in question 18 years
of age or older.” (My emphasis)

The
accused was 31 years old at the time.

[8]
Mr Sibeya submits, based on the interaction of ss38(2) with 38(4),
that s38(4) excludes the postponement or suspension of a sentence of
caution and reprimand of an accused who is 18 years or older, and
that the Court was obliged in the circumstances to impose a term of
direct imprisonment. He also relies on S v Likuwa 1999 NR 151
(HC) at 152; S v Vries 1998 NR 244 (HC) at 254-A. I agree.

[9]
The first question is therefore answered in the affirmative.

Was
the learned magistrate not required to inform the accused that he
intended to rely on the increase of the offences charged in his
district, and afford the accused the opportunity to address the Court
thereon?

[10]
Both counsel are in agreement, correctly, that the failure of the
Magistrate to afford the prisoner the opportunity to state his
position on what the Magistrate perceived to be an increase in the
type of offence in the district, was a misdirection. (See S v H
1977 (2) SA 1954 (A) 960 G-H, and S v Mkhwanazi 1989 (2)
SA 802 (T).)

Does
the sentence imposed not induce a sense of shock?

[11]
Again, both counsel correctly take the view that the sentence
imposed, being effectively 10 years, induces a sense of shock, in
circumstances where the fire-arms were not used in furtherance of
another crime. I only need add that the magistrate placed excessive
weight on the seriousness of the offences at the expense of the
personal circumstances of the accused.

[12]
The upshot of it all is that in view of the misdirections, this
Court is at large as to sentence. It now becomes our duty to
consider a condign sentence for the prisoner.

[13]
The mitigating factors are that the accused was 31 years old at the
time he committed the offence. He got married in 2004 and has 2
minor children. He was employed by the Ministry of Defence at the
time of the commission of the offence and earned N$2 000 per month.
He was suspended upon being charged and it must be assumed he lost
his job as a result of the conviction.

[14]
In aggravation of sentence it must be said that the fire-arms the
prisoner was found in possession of were illegally taken from his
employer. He therefore breached the confidence of his employer. The
evidence also shows that the accused decided to arm himself in this
unlawful way in order to meet a threat he perceived to face from some
social misfits (botsotsos). The risk that he would have put the
ill-gotten fire-arms to use against another human being was therefore
intended and probable.

[15]
Having regard to the totality of evidence in aggravation and
mitigation of sentence, I propose to impose a sentence of 5 years
imprisonment in respect of count 1; 2 years in respect of count 2
and 6 months in respect of count 3. The sentences on counts 2 and 3
to run concurrently with the sentence on count 1.

[15]
In the result it is ordered as follows:

1. The
   convictions on counts 1 – 3 are confirmed and the declaration of
   unfitness in terms of s10(6)(7) of the Act is also confirmed.

   
   

2. The
   sentences imposed in respect of all 3 counts are hereby set aside
   and to be replaced by sentences of 5 years (count 1), 2 years (count
   2) and 6 months (count 3).

   
   

3. The
   sentences in respect of counts 2 and 3 to run concurrently with the
   sentence on count 1.
   

   
   

__________________

DAMASEB, JP

I
agree.

___________________

VAN NIEKERK,
J