CASE NO.: CR 03/2009

IN
THE HIGH COURT OF NAMIBIA HELD

IN
OSHAKATI

In the matter between:

THE
STATE

and

PAULO
NDALA

(High court Review no
2013/08)

CORAM: LIEBENBERG,
AJ et SHIVUTE,
AJ

Delivered on: 11 March
2009

Review
Judgment:

LIEBENBERG,
A.J.:
[1]
The accused appeared in the Ohangwena Magistrate’s Court on a
charge of overstaying or remaining in Namibia after the expiration of
a visitor’s entry permit, or temporary residence permit, in
contravention of section 29(1)(5) of the Immigration Control Act, Act
7 of 1993. Subsequent to his plea of guilty the accused was
convicted and sentenced to a fine of N$3000-00 or 30 months
imprisonment.

[2]
The conviction is in order and will be confirmed. Regarding the
sentence imposed, I directed the following query to the learned
magistrate:

“When
regard is had to the penalty clause which provides
for a maximum of N$12000 or 3 years imprisonment (or both), the
legislature’s intention seems to have been that the ratio between a
fine and the alternative of imprisonment, should be N$4000 for every
one year imprisonment imposed in the alternative. Using this as a
guideline
is the term of imprisonment imposed in the alternative not
disproportionate to the fine imposed, bearing in mind that the
accused said that he had no money to pay a fine?”

[3]
The magistrate replied in the following terms: “I
have been not aware of the mentioned guideline. Should it be a
mandatory guideline I request the honourable reviewing judge to
interfere with the sentence imposed and impose an appropriate
sentence using the said guideline.”

[4]
Although sentence pre-eminently lies with the trial court, which has
a discretion regarding the sentence to be imposed, it is incumbent
upon the sentencer to adopt a balanced approach in the exercise of
that discretion. In sentencing, the court takes into consideration
all the relevant factors, including the personal circumstances of the
accused. The ability of the accused to pay a fine is, amongst
others, a factor to be taken into consideration. See: The
State v Romeo Wasserfall,
Case No. CR 8/2006 (unreported).

[5]
It has since R
v Frans 1924
TPD 419 been accepted that there must be some relation between the
fine and the term of alternative
imprisonment
and in S
v Tsatsinyana 1986(2)
SA 504 (T) at 510 C-D it has been said that the court, when deciding
what the relation must be in statutory crimes, must
have regard to the relation determined by statute. In other words,
the fine must commensurate with the alternative punishment. It
however does not mean that the sentencing process, when it comes to
fines, is governed by fixed “tariffs” or scales, as punishment
must be individualised and should not only fit the crime, but also
the offender.

[6]
There
are no mandatory guidelines when considering the alternate prison
sentence and I find it apposite to refer to S
v Juta
1988 (4) SA 926 (Tk) where the court stated the following:

“When
deciding on sentence, the court should first consider whether the
case is one which
calls for a prison sentence or not. Should it decide that the
accused should have the option of a fine, he must then determine what
the magnitude of the fine must be, having regard to the usual factors
which apply.

Having
decided on the amount of the fine, the court has to consider what
should happen if it appears that the accused is unable or unwilling
to pay the fine. The court has two options: firstly, he can abide by
the fine, in which case the fine can be recovered, if needs be, by
civil execution against the accused, or, and this is the usual
course, he can decide to impose a prison sentence which is to be
enforced if the fine is not paid.

But,
and this is where magistrates often go wrong, in the deciding on the
term of imprisonment ,the
court is now not concerned with a punishment for the crime. Decision
on that punishment has already been made. What the court must decide
is what sanction is to be applied should the punishment which has
been determined, fails.

When
deciding upon the amount of the fine, the court has regard to the
financial circumstances
of
the accused and whether the impact of the fine in these circumstances
would be an adequate censure for the accused’s misdemeanour.

The
same considerations also apply when considering the alternate prison
sentence. In addition, regard should be had to the special impact
which a prison sentence would probably have upon the accused, having
regard to his personal circumstances, employment, social status and
so on.”
(Emphasis provided)

[7]
In the present case the accused in mitigation said that he has no
money to
pay a court fine. This notwithstanding, the magistrate imposed a
stiff fine and in effect, sentenced the accused to a term of 30
months direct imprisonment, which is 6 months short of the maximum
sentence that may be imposed under that section. The learned
magistrate already decided to afford the accused the opportunity of
paying a fine of N$3000 and all that remained to consider is what
sanction had to apply, should the fine not be paid. The alternative
prison term of 30 months is, in the circumstances of this case,
excessive and does not satisfy the requirements of justice. I
endorse the remarks made by Feetham, J in R
v Frans
(supra) where the following was said:

“Where
a fine is imposed as an alternative to imprisonment it should, I
think, bear some relation to the probable sources and earnings of the
person on whom it is imposed and to the number of months imprisonment
which
are considered sufficient as an alternative punishment”
(Emphasis
provided)

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

1.
The
conviction is confirmed.

2. 
   The
   sentence is altered to the extent that the alternative prison
   sentence is reduced to 18 months.

   
   

____________________________

LIEBENBERG, AJ

I concur.

___________________________

SHIVUTE, AJ