Case No.: CR54/2008
IN THE HIGH COURT OF NAMIBIA
In the matter between
THE STATE
versus
SAUL ABUSEMA
[HIGH COURT REVIEW CASE NO.: 769/08]
CORAM: PARKER, J et NDAUENDAPO, J
Delivered on: 2008 June 2
__________________________________________________________________
REVIEW
JUDGMENT:
PARKER, J.:
[1] The accused was charged before the Gobabis
Magistrate’s Court on one count of theft (of a sheep), valued at
N$400.00, which takes into account the Stock Theft Act, 1990 (Act No.
12 of 1990) (the Act), as amended. The accused pleaded guilty and
was convicted on his plea of guilty and sentenced to six months’
imprisonment.
[2] The
submission of the record for review was accompanied by a letter. In
the letter, the learned Magistrate was of the view that the sentence
imposed was wrong because he had deviated from the prescribed
sentence in terms of s 14 (1) (a) (i) of Act No. 12 of 1990, as
amended by s 2 of the Stock Theft Amendment Act, 2004 (Act No. 19 of
2004), without entering upon the record, as required by s 14 (2) of
the Act, the “special and compelling circumstances” that
justified the imposition of a sentence that is lesser than the
prescribed sentence.
[3] I do not
think the learned Magistrate was wrong. The offence in the instant
case was committed on 2 August 2004, and, therefore, the sentence
sanctioned by statute at that time is that found in s 14 of Act No.
12 of 1990, as amended by s 3 of the Stock Theft Amendment Act, 1993
(Act No. 19 of 1993), which came into force on 1 October 1993. As I
observed in Lethto Mungandjera v The State Case No.: CA
170/2006 (Unreported), Act No. 19 of 1993 does not, unlike Act No. 19
of 2004 which came into force on 20 December 2004, prescribe minimum
sentences; neither does that Act prescribe sentences according to the
value of the stock stolen. Moreover, unlike Act No. 19 of 2004, Act
19 of 1993 does not mention the words “special and compelling
circumstances” that would justify a departure from the statutorily
prescribed sentences. The material part of s 3 of Act No. 19 of 1993
reads:
(1) Any person who is convicted of an offence referred
to in paragraph (a), (b), (c) or (d) of subsection (1) of section 11
shall be liable –
(a) in the
case of a first conviction –
to imprisonment for a period not exceeding 10 years; or
to a fine not exceeding R40,000; or
to both such fine and such imprisonment, or
(b) …
[4] I have perused the record and I am satisfied that
the proceedings are in accordance with justice. On the facts and in
the circumstances of this case, particularly considering the value of
the stock stolen and the fact that the accused pleaded guilty to the
charge, I do not think the learned Magistrate did not exercise his
discretion judicially when he imposed a sentence of six months’
imprisonment.
[5] In the
result, the conviction and sentence are confirmed.
______________________
PARKER, J
I agree.
______________________
NDAUENDAPO, J
S v Abusema (CR54/2008) [2008] NAHC 134 (02 June 2008);