CASE
NO.: CR 15/2011

"Not
Reportable"

IN
THE
HIGH COURT OF NAMIBIA

In
the matter between:

THE
STATE

vs

THEOPLAT
MBAARI NDERURA

(HIGH
COURT REVIEW CASE NO.: 1563/2010)

CORAM:
PARKER,
J et,
UNENGU,
AJ

Delivered
on: 2011 February 23

REVIEW
JUDGMENT

PARKER,
J [1]
The accused person was convicted in the Omaruru District Magistrates'
Court on a charge of theft which takes into account s. 11 (1) (a), s.
14 and s. 17 of the Stock Theft Act, 1990 (Act No. 12 of 1990) (as
amended) ('the Act'). The accused pleaded guilty, and was convicted
on his own plea of guilty. Accordingly, the learned magistrate
sentenced the accused as follows:

'24 months'
imprisonment of which 18 months (are) suspended for four years on
condition that the accused is not convicted of contravening s. 11 (1)
(a), s. 14 and s. 17 of the Stock Theft Act 1990, as amended,
committed during the period of suspension.'

[2]
I directed the following query to the learned magistrate:

'(1) It is not
clear what circumstances the learned Magistrate found to be
'compelling and substantial'. If as the learned Magistrate says, she
found such circumstances to exist, justifying the imposition of a
sentence less than the statutorily prescribed minimum sentence, why
then did she impose a sentence of 24 months' imprisonment?

(2) Would the
learned Magistrate please explain?'

And
the learned Magistrate responded in the following terms (quoted
verbatim):

The record
indicates on page 3 that s.14 (1) and 2 of Stock Theft Amendment Act
19/2004 was explained as per annexure C. Accused indicated that he is
a first offender he pleaded guilty to the charge he further stated
that most of the meat was recorded. He requested for a suspended
sentence.

Several
decided cases were looked at to find out if compelling and
substantial circumstances exist. Court was guided by S v
Maglas

2001 (2) SA 1222.
The starting point is that the prescribed

minimum sentence
is to be imposed, if court is satisfied compelling and substantial
circumstances exist then it can depart from the minimum sentence.

It was the court's
view that the fact that accused person was first offender, pleaded
guilty and that he did not benefit anything from the offence is
weighty enough to justify a lesser sentence. Further, the value of
the stolen goat is N$300.00 so it was this court's view that if
accused is given the prescribed minimum sentence it will be overly
harsh. Accused was not given direct 24 months imprisonment it was
suspended for 4 years on the usual conditions. '

[3]
The learned magistrate says the substantial and compelling
circumstances she found to exist are that: the accused is a first
offender; he pleaded guilty; and most of the meat was recovered. In
my view, those factors must in their circumstances and in their
combined impact, be 'substantial' (i.e. of 'real importance - Concise
Oxford Dictionary, 10^th
edn)
and 'compelling' (i.e. 'rousing strong attention (or) conviction,
-Concise
Oxford Dictionary, 10^th
edn).
Thus, there must exist, on the facts and in the circumstances of the
case, in favour of the accused, a factor that is of real importance,
compared with any of the traditional factors (that is, 'substantial')
and which is also, at the same time, capable of rousing strong
attention or conviction compared with any of the traditional factors
(that is, 'compelling'). It is such a factor that, in my opinion, can
be said to be 'substantial and compelling' within the meaning of s.
14(2) of Stock Theft Amendment Act, 2004 (Act No. 19 of 2004). The
traditional factors in themselves, without more, cannot be said to be
capable of measuring up to the 'substantial and compelling' mark
contemplated in s. 14(2) of the Act. In
casu, the
factors the learned magistrate says she found to exist are, indeed,
the traditional factors: there is nothing more.

Accordingly,
as I have said previously, the factors that the learned magistrate
says he found to exist do not, in my view, measure up to the mark of
'substantial and compelling' within the meaning of s. 14(2) of the

Act.

[4]
Nevertheless, I have no good reason to fault the learned magistrate
for suspending a part of the sentence, for the reasons given; but, as
I say, she was only entitled to so suspend a part of the sentence,
i.e. the minimum sentence (i.e. 24 months) which, as I see, she was
minded to impose. In this respect, I do not agree with the learned
magistrate that by suspending 18 months of the minimum sentence of 24
months' imprisonment she has thereby imposed a sentence less than the
statutorily prescribed minimum sentence of 24 months' imprisonment.
To illustrate the point; if a sentence of, say, 10 months'
imprisonment is imposed on X, and four months of the 10 months are
suspended on the usual conditions, that does not ipso facto mean that
X has been sentenced
to
six month's imprisonment. The absurdity of such conclusion comes into
sharper focus in this second illustration. If a sentence of, say, 10
months' imprisonment is imposed on Y and the sentence is wholly
suspended, on the usual conditions, it cannot be seriously argued
that the court did not impose a custodial sentence of 10 months. In
suspending a custodial sentence for any period of time, as in the
instant case, what is suspended is the serving
of
the period of time that is suspended and not the imposition
of
the sentence itself. Thus, the records of previous conviction of X
and Y (in our illustration above) will indicate a sentence of 10
months' imprisonment in either case, although X served a prison term
of six months, while Y did not serve any prison term. The fact that
remains is, therefore, that the court had imposed a 10-month prison
sentence on X and on Y.

[6]
In the result the following orders are made:

(1)
The conviction of the accused is confirmed.

(2)
The sentence imposed by the learned Magistrate is set aside and the
following is put in its place:

24
months' imprisonment, of which 18 months are suspended for five years
on condition that the accused is not convicted of the crime of theft
which takes into

account
s. 11 (1) (a), s. 14 and s. 17 of the Stock Theft Act, 1990 (Act No.
12 of 1990) (as amended).

PARKER,
J

I
agree.

UNENGU,
AJ