NO.: CR 183/07
THE HIGH COURT OF NAMIBIA
In the matter
1. DAVID SOSO
COURT REVIEW CASE NO.: 1716/07)
NIEKERK, J et
SILUNGWE, A J
The five accused were all convicted by the magistrate, Tsumeb, on a
count of escaping from lawful custody and sentenced to one year
imprisonment each. Accused no. 1, 2 and 3 are 18 years old. Accused
no. 4 is 34 years old and accused no. 5 is 19 years old.
directed the following query to the trial magistrate, namely:
the sentence of 12 months imprisonment not too harsh for such young
offenders as accused no. 1, 2, 3 and 5?"
learned magistrate replied as follows:
Honourable Reviewing Judge's query on sentence in respect of accused
1, 2, 3 and 5 is to whether the sentence is not too harsh for such
principle, I do agree with the Honourable Reviewing Judge, but these
young offenders were in custody for very serious offences related to
Housebreaking with intent to steal and theft in respect of accused 1,
3 and also accused 5 but two counts of the same offence as accused 1,
3 and accused 2 has a pending case of rape and assault with intent to
cause grievous bodily harm i.e. the victim was badly assaulted.
accused 1, 2, 3 were re-arrested in Otavi and accused 5 were
re-arrested in the area of Tsitsabis. Their intention indicted that
they wanted to abscond the administration of Justice. In addition
accused 1 had already convicted and sentenced to three years
if the sentence on the said offenders is too harsh, I am indebted to
you your Honourable Reviewing Judge for the sentence to be reduced up
to (6) six months imprisonment each."
information contained in the magistrate's reasons do not form part of
the record. I assume that the magistrate obtained this information
after sentencing the accused in order to motivate his reasons.
According to the record, the accused were all first offenders. There
is not much difference between the personal circumstances placed on
record by each of them in mitigation of sentence. The only striking
factor is the age difference between accused no. 1, 2, 3 and 5, on
the one hand, and accused no. 4 on the other hand. Normally this
factor would be something to consider when deciding what an
appropriate sentence should be. I cannot find any reason in the
record, and the learned magistrate has not referred me to any, why
the accused should be treated the same in spite of the difference in
 In the State
versus Toini Erickson
(unreported Case No. CR 18/2007 delivered 09/02/2007), this Court
(per Silungwe, AJ) again emphasised the need to treat youthfulness as
a mitigating factor and said:
general, young offenders should not fall victims of an indiscriminate
(that is, a sweeping) exercise of the court's discretion in regard to
punishment. The reason for this is that a teenager, such as the
accused in the present case should, prima
be regarded as immature. See: S
v Ngoma 1984
(3) SA 666 (A) at 674F. Indeed, irresponsibility is more often a
characteristic of the youth than it is of adults. This is so because
a youthful person often lacks maturity, insight, discernment, and
experience and, therefore, acts in a foolish manner more readily than
a mature person. See: S
v Willemse 1988
(3) SA 836 (A) at 838D; and S
v Solani En Andere 1987
(4) SA 203 at 206H.
view of the foregoing, extra care is needed in determining a suitable
sentence for a young (or juvenile) offender where the possibility of
reform is great and the result of an indiscriminate exercise of the
court's discretion is potentially irreparable.
confirming the care that is needed in determining a sentence for a
young offender, the Appellate Division had this to say in S
v Jansen and Another
1975 (1) SA 425 (A) at 427H-428A (per Botha, JA, with Rabie, JA, and
Corbett, JA (as then was) concurring):
determining an appropriate sentence to be imposed upon an accused
person in any particular case, it is the duty of the Court to have
regard, not only to the nature of the crime committed and the
interest of society, but also to the personality, age and
circumstances of the offender. (S v Zinn, 1969 (2) SA 537 (A.D) at
the case of a juvenile offender, it is above all necessary for the
Court to determine what appropriate form of punishment in the
peculiar circumstances of the case would best serve the interests of
society as well as the interests of the juvenile. The interests of
society cannot be served by disregarding the interests of the
juvenile, for a mistaken form of punishment might easily result in a
person with a distorted or more distorted personality being
eventually returned to society."
remarks in the quotation equally apply to a young offender. In other
words, if the young offender can be dealt with in a manner which will
present a reasonable chance for his rehabilitation, such action will,
in the long run, be in the interests of society. Thus, in sentencing
a young offender, a fine balance is needed for the simple reason that
the interests of society cannot be served by disregarding the
interests of the young offender."
 As in the
matter, it is clear that in
casu the learned
magistrate erred by disregarding the youthfulness of accused no. 1,
2, 3 and 5. The sentence of one year imprisonment can therefore not
be allowed to stand. The learned magistrate suggested that this
Court should reduce the sentence to 6 months imprisonment if it
should interfere. I agree that this would be appropriate.
the result the following order is made:
1. The convictions
in respect of all the accused are confirmed.
sentence in respect of accused no. 4 is confirmed.
3. The sentences
imposed on accused nos. 1, 2, 3 and 5 are reduced from 1 year
imprisonment to 6 (six) months imprisonment each.
VAN NIEKERK, J
SILUNGWE, A J