ANGULA, A.J.: This is a review matter.

[1] The accused appeared in the Magistrate Court of Windhoek on a charge of theft of a cellphone which the State alleged was valued at N$2500. He pleaded guilty to the charge but disputed the value of the cellphone and stated that according to him the value was about N$1800 instead of N$2500. The value as estimated by the accused was accepted by the State, whereupon the accused was duly convicted of theft of a cellphone. He was sentenced to a fine of N$1500 or 10 months’ imprisonment.

[2] The conviction is in order, however, in my view the sentence is startlingly inappropriate and induces a sense of shock. In mitigation of sentence the accused informed the Magistrate that he is not married, does not have children, was unemployed; however he is disabled and does not get work. He is 25 years old and he stays with his grandmother. He requested a suspended sentence.

[3] When the matter came before me, I was firstly concerned about the fact that the accused had informed the Magistrate that he is disabled and secondly that the fine of N$1500 or 10 months’ imprisonment appeared to me to be rather disproportionate to the offence committed. As I was concerned about the well-being of the accused due to his disability, I did not direct a written query to the Magistrate in accordance with the usual procedure instead I caused a telephonic enquiry to be directed to the Magistrate who presided over the matter and to enquire to what extent or in what way the accused is disabled. It was reported to me that the Magistrate stated that the accused is disabled in that he is dumb and deaf. That information confirmed my view that the sentence was startlingly inappropriate, given the fact that the accused is dumb and deaf. I therefore immediately ordered that a warrant of liberation be issued, so that the accused could be released from custody. The warrant was issued on 18^th March 2009.

[4] It does not appear from the record whether the accused is a first offender or not, neither does it appear from the record whether the cellphone was recovered. In my view the Magistrate was obliged to enquire about these two important factors. First offenders are usually as a norm, subject to extreme cases, treated more leniently than repeat offenders. Secondly, the fact that a stolen property has been recovered also operates as a mitigating factor in favour of an accused. Accordingly, in my view, failure by the Magistrate to enquire into these two important aspects constitutes a serious misdirection entitling this Court to interfere with the sentence imposed on the accused. Regarding the issue whether the accused is a first offender, I’m obliged to point out that the State did not prove previous conviction. I am therefore assuming in favour of the accused that he was a first offender. Furthermore, the State was obliged to inform the Magistrate whether the cellphone had been recovered or not. It was also incumbent upon the Magistrate in the consideration of appropriate sentence to enquire whether the cellphone had been recovered. I will also therefore assume in favour of the accused that the cellphone had been recovered and that the owner of the cellphone did not suffer loss. In my view, the fact that the accused is disabled, should also count as a mitigating factor in favour of the accused. Given the fact that the accused was unemployed and as a result had been unable to obtain work due to his disability, it is clear that he has no income and is thus unable to pay a fine. The Magistrate also failed to enquire into the accused’s ability to pay a fine. It therefore effectively meant that the accused had to serve a period of 10 months’ imprisonment. In this respect, I may also mention that I also enquired whether the accused had paid the fine, and was informed that he was still in custody.

[5] As a result, the sentence is set aside, and substituted with the following sentence:

           N$1500 or 3 months’ imprisonment, wholly suspended for a period of 12 months, on a condition that the accused is not convicted of the offence of theft committed within the period of suspension.

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ANGULA, A.J.

I concur

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DAMASEB, J.P.