NOT REPORTABLE

CASE NO.: CA 04/2010

IN THE HIGH COURT OF NAMIBIA

HELD AT OSHAKATI

In the matter between:

MENINGIVI TJINANA
…................................................................APPELLANT

and

THE STATE
…...........................................................................RESPONDENT

CORAM: LIEBENBERG
J & TOMMASI J

Heard on: 26/04/2011

Delivered on:

APPEAL JUDGEMENT

TOMMASI J:
[1] This is an appeal against
sentence. The appellant was convicted in the magistrate’s court
of theft read with provisions of section 11(1)(a) 1, 14 and 17 of the
Stock Theft Act¹,
as amended².
The appellant was committed for sentence in the regional court and
appeared in that court for the first time on 21 September 2007. He
was sentenced to twenty (20) years imprisonment whereof five (5)
years were suspended for a period of five years on condition that the
appellant is not convicted of the same offence committed during the
period of suspension.

[2] The appellant appealed to
this Court against the sentence imposed. This Court set the sentence
aside; remitted the matter to the regional court to consider sentence
afresh; ordered the magistrate to question the appellant in order to
get sufficient information; and thereafter consider whether there
were substantial and compelling circumstances. The regional court was
reminded to take into account the period the appellant had already
served in prison when considering the sentence afresh.

[3] The appellant appeared in
the regional court on 31 March 2009 for the magistrate to comply with
the order of this Court. The appellant was sentenced to twenty (20)
years imprisonment of which ten (10) years were suspended for a
period of five (5) years on condition that the appellant is not
convicted of stock theft read with Stock Theft Act, as amended. It is
against this sentence that the appellant now appeals.

[4] The appellant initially
noted an appeal out of time and filed an affidavit explaining the
delay. He was not assisted by a legal representative when drafting
the notice of appeal and the affidavit. The explanation tendered by
the appellant was that he has never been to school and that he is
illiterate. He further averred that he was informed by the magistrate
to appeal to the High Court that he failed to inform him of the
period within which he had to note an appeal. It is apparent from the
record that the appellant was informed that he should note his appeal
within 14 days from date of sentence. Mr Wamambo appearing for the
respondent argued that the appellant was not new to the appeal
procedures, having appealed once before.

[5] Ms Mugaviri, appearing on
behalf of the appellant filed an application for condonation
supported by her affidavit, explaining why the amended notice was
filed out of time. Counsel should note that the correct procedure for
obtaining condonation for the extension of time limits is by way of
application supported by an affidavit made by the appellant.
If the appellant wishes to rely on facts which falls outside his
personal knowledge, he should attach the necessary supporting
affidavits. (See S v Kashire 1978 (4) SA 166 SWA at page
167h-i).

[6] Counsel for the appellant
further submitted in her affidavit that the amended notice should be
filed within 14 days after the notice of appeal is filed with the
clerk of the court. This is an incorrect interpretation of the rule
67(5) of the Magistrate’s Court Rules which makes provision for
the appellant to amend his/her notice of appeal 14 days after having
been informed that the statement of the magistrate in terms of rule
67(3) had been furnished. There was no indication on the record that
the clerk of court had informed the appellant. The Court, under these
circumstances must then infer that the appellant became aware of the
fact that the magistrate had furnished his statement at the time his
counsel perused the full record. The amended notice of appeal was
submitted to the clerk of court well within 14 days after counsel for
appellant perused the record.

[7] This Court would not
hesitate to reject the poor explanation of the appellant for non
compliance with the rules if there are no reasonable prospects of
success. The grounds raised herein against sentence are however very
arguable as conceded by counsel for the respondent.

[8] The grounds raised by the
appellant in his amended notice of appeal were in short that the
sentence was excessive; that the magistrate failed to adequately take
into consideration the personal circumstances of the appellant; and
failed to assist the appellant to elicit sufficient information to
establish whether there were substantial and compelling
circumstances.

[9] When the matter appeared in
the regional court, the magistrate once again explained the meaning
of substantial and compelling circumstances to the appellant. The
appellant testified under oath and placed the following before the
court:

“I
am staying at my father’s house. I am married with dependants.
I also have extended families to take care of. I am the only
breadwinner. I did not know that I will be sent to prison for a long
period. I am a first offender. I want the court to impose a sentence
to warn the court to do it again. That’s all.”

[10] The prosecutor posed a
view questions to the appellant and it transpired further that he
appellant is unemployed but does piece work here and there; and has
three children aged 2, 3 and 4 respectively. The court a quo
recorded the following:

“Court
does not find any compelling circumstances present to impose a lesser
sentence, but will however suspend portion (sic) of the sentence as
accused put in prison (sic) for a long time”

[11] In his statement in terms
of Rule 67(3) of the Magistrate’s Court Rules the magistrate
advanced the following reasons for sentence:

“As
on the first occasion, as well as the second occasion...., the
accused did not advance any factors for the court to deem it as
compelling and substantial to impose a lesser sentence.

However,
as the accused spend in custody for a long time (sic), the court
deemed it fit to suspend portion of the sentence.

I
am therefore of the opinion, that the court indeed considered the
personal circumstances of the accused and therefore imposed a just
sentence.”

[12] Despite the order given by
this Court for the magistrate to question the appellant in order to
obtain sufficient information, no single question was posed by the
magistrate in an attempt to elicit any further information from the
appellant. The proceedings on the second appearance are almost
identical to the first appearance and it is therefore not surprising
that the ultimate result remains the same i.e that a sentence of 20
years was imposed. I have to agree with counsel for the appellant’s
argument that the magistrate remained unmoved by this Court’s
order to elicit more information from the appellant.

[13] The appellant had at the
time of sentencing already served one year and 6 months of the
initial sentence imposed by the regional court. The magistrate, took
into consideration that the appellant had already served a “long”
part of his sentence and still
imposed a sentence of 20 years imprisonment.

[14] The misdirection here
however is that the magistrate laboured under misconception that he
imposed a more lenient sentence by suspending a large portion
thereof. When imposing a suspended sentence, it is important to keep
in mind the purpose of a suspended sentence namely to deter the
offender from committing similar crimes and not to remove him from
society in the event he, for whatever reason, should fall foul of the
condition attached to the suspension. The sentencing court should not
lose sight of the consequences of suspending a large portion of a
sentence.

[15] When a court considers an
appropriate sentence it should include the suspended part. The court
should guard against imposing a lengthy suspended over and above what
the court considers to be an appropriate sentence. ³
The court a
quo effectively
imposed a sentence of 21 years and 6 months imprisonment. Suspending
10 years thereof does not ameliorate the effect of the sentence
imposed by the regional court and neither does it do justice to this
Court’s order that the sentencing court should have regard to
the term of imprisonment the appellant had already served.

[16] An effective imprisonment
of 20 years clearly did not sit comfortably with the court a
quo and hence the
suspension of 10 years thereof. The sole reason for this trend is the
fact that the magistrate felt that a sentence of 20 years would be
disproportionate to the crime, the criminal and the legitimate
expectations of society.⁴
The appellant stole a calf
valued at N$1300.00 from his father. The minimum prescribed penalty
for theft of stock valued at less than N$500.00 is two years. It
would offend any reasonable person’s innate sense of fairness
that a difference of N$800.00 should result in a sentence of twenty
years imprisonment.

[17] The appellant was 23 years
old and a first offender. He is therefore young enough to be
rehabilitated. The appellant indicated that he now realises that he
committed a serious offence and has undertaken not to repeat the
offence. Appellant’s father denied that hunger drove the
appellant to steal. The appellant did not dispute his father’s
testimony that he would have given the appellant food if he had
approached him. Counsel for the appellant submitted that the beast
was recovered but this is not evident from the record of proceedings.
Although the appellant stole from his father and not from another
household, it remains a serious offence. The legislature deemed it
necessary to provide for lengthy minimum sentence to ensure a
standardise response from the courts. The courts are however not
entirely left without a discretion to impose a lesser sentence when
compelling and substantial circumstances exist.

[18] It would serve no purpose
to remit this matter to the court a
quo given the
history of this matter. The minimum sentence of 20 years prescribed
by the Stock Theft Act, 12 of 1990 in this matter is disproportionate
to the crime, the offender and to the legitimate needs of the
society. This in itself is a substantial and compelling circumstance
which compels this Court to impose a lesser sentence than the minimum
sentence prescribed by the Stock Theft Act, 12 of 1990 as amended.

[19] In the premises the
following order is made:

1. The application for
condonation for the late noting of the appeal is granted;

2. The appeal against sentence
is upheld and the sentence imposed by the regional court is hereby
set aside and substituted with the following sentence:

Eight (8) years imprisonment of
which 3 years are suspended for a period of 5 years on condition that
the accused is not convicted of theft read with the provisions of the
Stock Theft Act, 12 of 1990 as amended, committed during the period
of suspension.

3. The sentence is antedated to
21 October 2007.

_____________________

TOMMASI J

I concur

____________________

LIEBENBERG J