S v Ndeima (CRIMINAL 73 of 2008) [2008] NAHC 58 (20 June 2008);
and IN THE HIGH COURT OF NAMIBIA In the matter between: HIIMBWASHANGE NDEMUSHAKENA NDEIMA _________________________________________________________________________ [1] The sentence is altered to the extent that the alternative prison sentence is reduced to 12 months.
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Sentence – Settled law that sentence a matter for the discretion of the trial court – Such discretion should be exercised judicially.
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Fine – Alternative imprisonment – Such imprisonment should be reasonable so as not to punish accused more severely than fine would – Sentencer should adopt a balanced approach in exercising discretion – Ideally both fine and alternative prison sentence must satisfy the requirements of justice as to reasonableness.
THE STATE
SILUNGWE, AJ et MANYARARA, AJ
2008.06.20
The accused appeared in the Eenhana Magistrate’s Court on a charge of entry into Namibia at a place other than a port of entry without reporting himself to an Immigration Officer, in contravention of section 6(1) read with sections 1, 2 and 10(3) of the Immigration Control Act, Act 7 of 1993. After pleading guilty to the charged, he was sentenced to a fine of N$2 000-00 or in default of payment thereof to 24 months’ imprisonment.
I am here concerned with the alternative prison term only. Whilst it is settled law that sentence is pre-eminently a matter for the trial court and that, subject to limits of statutory provisions, it is in the discretion of the sentencer to exercise such discretion judicially, any term of alternative imprisonment should be reasonable so as not to punish the accused more severely than the fine would. In the case of The State v Romeo Wasserfall, No CR 8/2006 (unreported), the essence of the decision was that it is incumbent upon the sentencer to adopt a balanced approached in the exercise of the discretion of the discretion. See also the recent cases of The State v Lukas Tuindeleni Hafunda, CR 14/2008 and The State v Geidanna Geinamseb, CR 22/2008 (unreported, jointly decided) in which the case of S v Juta 1988 (4) SA 926 (TKH) was cited with approval. In Juta’s case, supra, Van Reenem, CJ (with Davies, J concerning) made the following observation at 928D-E.
On the authority The State v Hafunda and Geinaseb, supra, I do not consider that the alternative prison term of 24 months satisfies the requirements of justice.
[4]
In consequence, the following order is made:
The conviction is confirmed.