Court name
High Court
Case number
CA 87 of 2008
Title

S v Swiegers (CA 87 of 2008) [2010] NAHC 75 (11 June 2010);

Media neutral citation
[2010] NAHC 75
















CASE
NO.: CA 87/2008


IN
THE HIGH COURT OF NAMIBIA


In
the matter between:





GILLIAN
SWIEGERS
APPELLANT





versus





THE
STATE
RESPONDENT





CORAM:
NDAUENDAPO, J et SIBOLEKA,
J


Heard
on: 2010 June 11


Delivered
on: 2010 June 11


________________________________________________________________________


APPEAL
JUDGMENT


SIBOLEKA,
J


[1] This
is an appeal against a sentence of direct imprisonment, eighteen (18)
months. At the conclusion of arguments by both counsel the sentence
was set aside and substituted for the following:



N$10,000,00 or
four (4) years imprisonment of which N$5,000,00 or two (2) years are
suspended for five (5) years on condition that:



  1. The
    appellant pays the Manager, Nedbank Swakopmund, the amount of
    N$5,000,00 as damages occasioned to the ATM, and that proof of such
    payment be furnished to the Clerk of the Magistrates Court,
    Swakopmund on or before the 30th of July 2010.


  2. That
    the accused is not convicted of the offence of malicious damage to
    property, committed during the period of suspension.







[2] The
Court had indicated at that stage that the reasons would be given at
a later stage. These are the reasons.





[3] The
appellant was convicted in the District Magistrate’s Court,
Swakopmund on a charge of malicious damage to property involving an
ATM machine screen allegedly valued at N$10,000,00.





[4] During
the trial in the Court a quo he was undefended and his
conviction followed a guilty plea and subsequent questioning in terms
of section 112 (1)(b) of Act 51 of 1977.





[5] When
this matter was heard before this Court, Adv. Botes appeared for the
appellant and Adv. Campher for the respondent. This Court
appreciates their valuable contributions in this regard.


[6] The
grounds of appeal are as follows:



It
is respectfully submitted that the learned magistrate misdirected
herself on the facts of this matter as no evidence was adduced in
respect of inter alia the following important aspects:-







  1. Whether
    the appellant hit the damaged screen with his fist more than once.


  2. The
    precise nature of the damages inflicted to the broken and/or damaged
    screen.


  3. The
    measure of force necessary to damage and/or break the screen to the
    extent that the appellant did.


  4. Whether
    the broken and/or damaged screen was still operational after having
    been hit by appellant.


  5. Whether
    the appellant had knowledge of the high value of the replacement
    costs of the screen when he struck the screen in anger.







As
such, as already submitted, the learned magistrate had no factual
basis to, without sacrificing the principle of individualization of
sentencing, to conclude that the offence indeed was such a serious
one, even in the light of the appellant’s previous conviction
on a similar offence, to warrant a direct period of imprisonment 18
months.






In
this regard, it is respectfully submitted that, apart from the
aforegoing, the learned magistrate clearly erred in the law and/or on
the facts to give no, alternatively insufficient weight to the
following facts, namely:







  1. That
    the offence was committed in anger.


  2. That
    the appellant pleaded guilty to the said charge.


  3. The
    appellant’s apparent ability to pay a substantial fine and if
    to, if the aspect had been properly investigated by the learned
    magistrate, compensates the complainant for the damages suffered,
    the combined effect of which would clearly have satisfied the
    aspects of retribution, as well as deterrence in the circumstances.


  4. The
    possible devastating consequences of the period of imprisonment on
    the appellant’s life, as well as future employment.


  5. That
    the appellant, in the past, did not receive a suspended sentence for
    the offence, previously committed.”






[7] The
facts of this matter are briefly that the appellant wanted to
withdraw cash (money) at an ATM machine at Nedbank, in Swakopmund.
After the machine could not give him the money, he got angry and
broke the screen thereof by hitting it with a fist.





[8] It
was argued on behalf of the appellant that after the Public
Prosecutor had asked for a direct imprisonment in aggravation of
sentence, the Court a quo did not avail the appellant an
opportunity to reply to that request. It is this Courts’ view
that direct imprisonment is indeed a drastic measure that encroaches
on the liberty of the individual and as such it would have been
appropriate for the Court below to hear the appellant in that regard.





[9] It
was further argued by Adv. Botes that the undefended appellant should
also have been assisted to place the relevant personal circumstances
appropriately before the learned Magistrate than it has been the
case. From the record itself the following appears as the
appellant’s mitigation of sentence.


I
will address the Court:



Not
married. No children. Working at Grant Browse Adventures. I do
camera work. Earn N$3,000,00 per month. I have money for a fine.
Nothing else to say.”





[10] From
the above it appears that the appellant did not anticipate to be
directly sent to prison without being afforded an opportunity to pay
a fine. It is this Court’s considered view that this
impression on the part of the appellant would have been easily
removed from his mind had he been given and or invited by the Court
below to say something in reply to the Prosecutor’s request for
direct imprisonment.





[11] Adv.
Campher argued for the respondent that the sentence was in order
given the fact that the appellant attacked the ATM machine without
being provoked by any other person. He further argued that the Court
was persuaded to impose a custodial sentence because the appellant
had a similar record.





[12] Not
withstanding the fact that the ATM screen is a valuable item meant
for the use of members of the public, there was no evidence regarding
its operational aspect. In view of the machine’s use, it would
have been of much assistance to the Court below to establish whether
the appellant’s fist blow rendered it unfunctional or not.
This not being the case, reliance by the Court below on the fact that
the offence is serious cannot be confirmed.





[13] In
the light of the above a wholly custodial sentence is too harsh and
in appropriate in the circumstances. This Court is of the opinion
that although the appellant has a similar previous record, he should
nonetheless have been given a sentence coupled with an alternative of
a fine. The reason being that malicious damage to property is not
such a serious offence that would require the appellant to be removed
from society like it would be the case with a dangerous person.





[14] After
carefully considering the arguments of counsel for both parties this
Court felt that the sentence imposed by the Magistrate should not be
allowed to stand.





[15] While
seized with the review of a matter involving a first offender this
Court has per my brothers Muller, J and Frank, AJ as he then was in S
v Lisethe
Case No. CR 95/2008 (High Court Review Case No.
880/2008) delivered on the 30th of June 2008 expressed a
view that offenders in respect of lesser offences (less serious
offences) albeit prevalent should not be given non-custodial
sentences as a normal rule.





[16] For
these reasons the appeal against sentence was upheld.

















___________________


SIBOLEKA,
J








I
agree.








___________________


NDAUENDAPO,
J








COUNSEL
ON BEHALF OF THE APPELLANT: MR. BOTES


INSTRUCTED
BY: LEGAL AID








COUNSEL
ON BEHALF OF THE RESPONDENT: MR. CAMPHER


INSTRUCTED
BY: THE OFFICE OF THE



PROSECUTOR-GENERAL