CASE
NO.: CA 183/2007

IN THE HIGH COURT OF NAMIBIA

In
the matter between:

FILLEMON SHAKETANGE Appellant

and

THE
STATE Respondent

CORAM: SILUNGWE,
AJ et
MARCUS, AJ

Heard
on: 2009/03/06

Delivered on: 2009/03/19

APPEAL
JUDGMENT:

SILUNGWE,
AJ: [1] The
appellant appeared before the Magistrate’s Court at Eenhana on a
charge of theft of two oxen valued at N$5 100-00, in contravention of
section 14(1) read with 11(1) of the Stock Theft Act, Act 12 of 1990
as amended by Act 19 of 2004. After trial, he was convicted as
charged and the record was then placed before the Regional Court for
sentence. Thereafter, the appellant was sentenced to twenty years’
imprisonment, five years of which were suspended for five years on
condition that he was not convicted of stock theft committed during
the period of suspension. It is against the said conviction and
sentence that this appeal lies.

[2] Mr
Norman Tjombe, the Director of the Legal Assistance Centre, appears
amicus
curiae,
while Mr Kuutondokwa, the Deputy Prosecutor General, appears for the
respondent.

[3] The
facts of the case are both straightforward and unchallenged. Sergeant
Hans Neumbo (Sgt) of Eenhana Police Station was on police patrol in a
police bakkie with two of his colleagues on September 13, 2006, when
he saw the appellant driving two oxen. When Sgt. Neumbo requested the
appellant to produce a certificate of ownership of the oxen, he was
unable to produce one but alleged that he had bought the animals from
a Mr Thomas Kawasha. In his testimony for the Respondent, Mr Kawasha
told the Court that he knew the appellant as cuca shop owner and that
they both lived in the same village. When he was approached by the
Police on September 13, 2006, and asked whether he had sold two oxen
to the appellant, he denied having done so, whereupon the appellant
claimed that the animals belonged to himself. In reality, however,
the animals belonged to Messrs Reinhold Patelia and Asser Simon,
respectively, both of whom testified to that effect. None of the
respondent’s witnesses was ever subjected to cross-examination by
the appellant. Moreover, the appellant elected to remain silent and
did not call any witnesses. Hence, the appellant was convicted on
unchallenged evidence against him.

[4] The
grounds of appeal against conviction and sentenced are: firstly, that
the learned magistrate allegedly failed to explain the rights of an
unrepresented accused at the close of the case for the State;
secondly, that the said court allegedly permitted the respondent to
lead evidence of four other witness after the closure of the case for
the State; and thirdly, that in the light of the appellant’s
mitigating factors, the Regional Court should have found that there
were substantial and compelling circumstances present to justify the
imposition of a lesser sentence than the prescribed minimum sentence;
or alternatively, that the Regional Court should have suspended a
greater portion of the sentence than five years, on account of the
mitigating factors. On reflection, however, Mr Tjombe now appreciates
that the rights of the accused were properly explained to him and
that there was no premature closure of the case for the State. In the
result, both grounds against conviction have been abandoned. It
follows that the only live issue is the appeal against sentence.

[5] Mr
Tjombe contends that the Regional Court misdirected itself in coming
to the conclusion that there were no substantial and compelling
circumstances, notwithstanding the fact that the appellant was a
first offender; the stolen oxen had been recovered as a consequence
of which the complainants suffered no loss; and the appellant was a
father of six children (aged between three and ten years) whom he was
supporting. He further submits that, in any event, and regard being
had to the mitigating factors aforesaid, the sentencer should have
suspended a greater portion of the sentence.

[6] With
regard to the question whether substantial and compelling
circumstances were present in
casu,
the Regional Court considered the question and answered it in the
negative. It seems to me that in so doing, and given the
circumstances of the matter, the sentence cannot reasonably be
impugned. The recovery of the oxen, for instance, was none of the
appellant’s doing as he had been caught red-handed. Hence, although
such recovery remains a mitigating factor, it carries negligible
weight for purposes of computing substantial and compelling
circumstances. In the final analysis, the cumulative effect of the
relevant circumstances in the matter are not such as to justify a
departure from the standardized response that the Legislature has
ordained. It follows that no basis has been laid upon which the
Regional Court’s decision that substantial and compelling
circumstances were non-existent in the matter can be disturbed.

[7] What
remains to be considered is the extent of the suspended sentence,
namely, five years, which leaves fifteen years as the operative
custodial sentence. In the light of the mitigating factors, we are of
the view that the operative sentence of fifteen years imprisonment is
startlingly inappropriate. As a consequence of this, the sentence
imposed will be disturbed to the extent of suspending a greater
portion thereof.

[8] In
the circumstances, the following order is made:

1. the
conviction is confirmed.

2. the appeal against sentence
is allowed to the extent set out hereunder:

2.1 20 years imprisonment 10
years of which are suspended for a period of 5 years on condition
that the appellant is not convicted of stock theft committed during
the period of suspension;

2.2 the operative sentence of
10 years imprisonment takes effect from April 25, 2007, when the
original sentence was passed.

____________________

SILUNGWE,
AJ

I
agree

______________________

MARCUS,
AJ

COUNSEL
ON BEHALF OF THE APPELLANT:

Mr
Tjombe

Instructed
by: Legal
Assistance Centre

COUNSEL
ON BEHALF OF THE RESPONDENT:

Mr
Kuutondokwa

Instructed
by: Office
of the
Prosecutor
General