CASE NO.: CR 19/2012

IN THE HIGH COURT OF NAMIBIA:

NORTHERN LOCAL DIVISION

HELD AT OSHAKATI

In the matter between:

THE STATE

and

SHADUKA VIKTOR

(HIGH COURT REVIEW CASE NO.: 20/2012)

CORAM:
LIEBENBERG, J. et
TOMMASI, J.

Delivered on: 21 September 2012

REVIEW JUDGMENT

LIEBENBERG, J.:
[1] The accused in this
matter appeared in the magistrate’s court Oshakati on thirteen
charges in contravention of s 24 of the Value-Added Tax Act, 2000¹
(the Act). Despite
having pleaded not guilty and after evidence was heard, he was
convicted on all the charges and sentenced as follows: ‘N$2 000
or 6 months imprisonment wholly suspended for a period of 5 years on
condition that accused is not convicted of an offence of contravening
section 24 [of] Act 10 of 2000’.

[2] When the matter came
on review I directed a query to the presiding magistrate enquiring
into the correctness of the formulation of the charges preferred
against the accused, and the single sentence that was imposed. It
appears from the date stamp that the query was received by the clerk
of the criminal court as far back as the 22^nd
of February 2012;
however, the magistrate’s reply is dated the 15^th
of August, almost six
months after
the query was sent. In the absence of any explanation that could
possibly explain the delay, I find the magistrate’s remissness
in this respect inexcusable. I am well aware that magistrates suffer
from a heavy workload and seldom find sufficient time to attend to
administrative functions such as responding to a query in addition to
their court work; however, review proceedings are equally important
and form an integral part of trial proceedings, thereby (ultimately)
ensuring that an accused is afforded a fair trial.

[3] Although I initially had some
reservations about the manner in which the charges are formulated
pertaining to the time the alleged offences were committed, I am
satisfied that the accused was at least duly informed as to the
specific months that he, being a registered vendor in terms of the
Act, failed to submit tax returns to the Minister of Finance as he,
by law, was required to do. Evidence was adduced that the accused,
despite having been notified of his returns being outstanding, simply
failed to submit the returns, thereby making himself guilty of
contravening s 24 of the Act. Whereas he was unable to proffer any
plausible explanation showing otherwise, I am satisfied that the
court correctly convicted the accused on all thirteen charges. The
convictions are thus in order and will be confirmed.

[4] The magistrate, as regards sentence,
replied to the query that she omitted to note on the record that all
charges were taken together for purpose of sentence; furthermore, she
concedes that the sentence imposed is wrongly formulated in that the
words ‘committed during the period of suspension’ were
omitted.

[5] Although the taking
of different counts together for purpose of sentence is not
prohibited by the Criminal Procedure Act²,
such practice is undesirable and should only be adopted in
exceptional circumstances. In The
State v Willem Visagie³
the following was said
regarding taking counts together for purpose of sentence at p3:

‘[6]
It is trite law that when one comprehensive sentence is imposed in
respect of two or more offences, it essentially means that the single
sentence is to be regarded as the punishment in respect of each of
the separate offences and therefore
the comprehensive sentence imposed must be a suitable punishment in
respect of each of the offences committed.’

(Emphasis provided)

[6] Any person failing
to furnish tax returns in terms of those provisions set out in the
Act is guilty of an offence and upon conviction liable to a fine
prescribed in s 56 of the Act, not exceeding N$4 000 or imprisonment
for a period not exceeding one year or to both such fine and such
imprisonment. Having taken the thirteen counts together for purpose
of sentence the court imposed a wholly suspended fine which in effect
lets the accused off the hook scot free as the accused, in the mean
time, has closed down his business. Though the court in sentencing
has a wide discretion, it is guided by well-established principles
and guidelines which ought to be followed when determining what
suitable
punishment to impose on
the offender. In this instance the accused was in default no less
than thirteen
times,
despite having been notified of his failure to submit his tax
returns.

[7] The sentence imposed, in my view, is
not only extremely lenient and unjustified if regard is had to the
accused’s interests as well as that of society, but it clearly
also fails to appreciate the seriousness of the offences committed by
the accused over a long period of time. Although this might have been
an instance where one comprehensive sentence could have been imposed
in respect of all the charges, a clearer thinking in determining the
appropriate sentences was required in this instance for example a
hefty fine which would also have served as general deterrence to
others. This notwithstanding, besides correcting the formulation, the
sentence imposed will not be interfered with.

[8] In the result, the sentence is amended
to read:

‘Counts 1 –
13 taken together for purpose of sentence: N$2 000 or 6 months’
imprisonment, wholly suspended for 5 years on condition that the
accused is not convicted of contravening s 24 of Act 24 of 2000,
committed during the period of suspension.’

___________________________

LIEBENBERG, J

I concur.

___________________________

TOMMASI, J