NOT
REPORTABLE

REPUBLIC
OF NAMIBIA

HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: CR 90/2012

In
the matter between:

THE
STATE

and

TIMOTEUS SLANER

(HIGH
COURT MAIN DIVISION REVIEW REF NO 1648/2012)

Neutral
citation: S v Slaner (CR 90-2012) [2012] NAHCMD 58 (12
November 2012)

Coram: VAN NIEKERK, J and
UEITELE, J

Delivered:
12 November 2012

Flynote: Criminal
procedure – Sentence – Accused a juvenile aged 17 years
at time of commission of crime – Accused spent 16 months in
custody awaiting trial – Accused convicted of housebreaking
with intent to steal and theft – Accused a first offender -
Sentenced to three years imprisonment of which one year is suspended
for five years on condition of good behavior – Sentence creates
sense of shock in light of accused’s youthful age and time
spent in custody awaiting trial – Sentence set aside and
replaced with nine months imprisonment of which three months
imprisonment are suspended for three years on condition of good
behavior.

Summary: The
accused was convicted in the magistrate’s court on a charge of
housebreaking with intent to steal and theft and sentenced to three
years imprisonment of which one year is suspended for five years on
condition of good behaviour. On
review the concern arose whether the sentence is not too harsh
bearing in mind (i) that the accused was 17 years old at the time he
committed the offence; and (ii) that the accused spent 16 months in
custody awaiting trial.

The
magistrate misdirected himself on the facts. He also exaggerated the
extent of the crime committed, and therefore its seriousness.

Although
there is no rule of law which precludes a court from sentencing a
youth to a term of imprisonment, a youthful offender who is a first
offender, should as far as possible be kept from prison. In the
present matter the offence committed was quite serious and the list
of stolen items (consisting of 35 items valued at N$6 600) does
indicate some greediness on the part of the accused. The
circumstances of this case do warrant a custodial sentence, but not
as long as the magistrate imposed. While the magistrate took the
accused’s youthfulness into account, he gave it too little
weight. The length of the sentence imposed in this case on a youth
who committed the crime while still a juvenile creates a sense of
shock especially when one takes into consideration that he spent 16
months in custody awaiting trial. The sentence was set aside and
replaced with a sentence of nine months imprisonment of which
three months are suspended for 3 three years on condition of good
behaviour.

ORDER

1. The
   conviction is confirmed.

   
   

2. The
   sentence is set aside and replaced with the following sentence:

   
   

“9 (nine) months
imprisonment of which 3 (three) months are suspended for 3 (three)
years on condition that the accused is not convicted of housebreaking
with intent to steal and theft, or of theft, committed within the
period of suspension.”

3. The
   sentence is backdated to 3 April 2012.

   
   

REVIEW
JUDGMENT

VAN
NIEKERK, J ( UEITELE, J concurring):

[1] The
accused was convicted in the magistrate’s court on a charge of
housebreaking with intent to steal and theft and sentenced to three
years imprisonment of which one year is suspended for five years on
condition of good behaviour. A query was sent to the trial
magistrate on the sentence that was imposed. However, the reply by
the clerk of the particular court indicates that the magistrate is no
longer in the service of the magistracy.

[2] The
query raises the concern whether the sentence is not too harsh
bearing in mind (i) that the accused was 17 years old at the time he
committed the offence; and (ii) that the accused spent 16 months in
custody awaiting trial.

[3] During
the trial the learned magistrate provided short ex tempore reasons
for sentence. He took into account that the offence committed is
quite serious and prevalent and that, generally, housebreaking and
theft involves premeditation, planning and careful timing. The
magistrate had regard to the fact that the particular crime
undermines the virtues of honest, hard work and correctly emphasized
the deterrent purpose of sentence for such crimes, especially in the
particular town, stating that the courts must not be seen to
encourage a situation where some work honestly for their possession
by day while others ‘just harvest’ at night.

[4] I
have no quarrel with the sentiments expressed. However, the
magistrate misdirected himself in his judgment on sentence. For
example, the magistrate referred to the list of stolen items in this
case and stated that the accused ‘literally emptied’ the
complainant’s house. The list consists of about 35 items,
which includes mainly items of clothing, as well as a dvd player, a
DSTV decoder, a compact disc, two dvd’s and two travel bags.
The total value is N$6600. Whilst the value is not insignificant, it
can certainly not be said that the complainant’s house was
‘emptied’. In the first place this statement is based on
speculation, as there is no evidence on the size and contents of the
complainant’s house. Secondly, it seems inherently improbable
that the listed items were the only possessions in the complainant’s
house. It seems to me that the learned magistrate exaggerated the
extent of the crime committed, and therefore its seriousness.

[5] He
took into account that the accused is a first offender and pleaded
guilty, thereby showing some remorse and contrition. He further took
into account the accused’s age both at the time of the
commission of the offence and at the time of sentencing, which was
then and stated that the accused’s action ‘might have
been due to youthful ignorance’. Nevertheless, he reminded
himself, at age 17 ‘one will be knowing what is wrong and
right, good or bad.’

[6] In
a recent judgment this Court had occasion to express the view that,
although there is no rule of law which precludes a court from
sentencing a youth to a term of imprisonment, a youthful offender who
is a first offender, should as far as possible be kept from prison.
(See S v Skrywer (CA 36-2011) [2012] NAHCMD at para. [6] where
reference is also made to Ainackey Shikesho v The State Case
No. CA 111/2008 (Unreported); State v Timi Issack Case No.
2880/92 (Unreported); S v Salome van der Berg 2003 NR 69 (HC);
S v Erickson 2007 (1) NR 164.) In the present matter the
offence committed was quite serious and the list of stolen items does
indicate some greediness on the part of the accused. The
circumstances of this case do warrant a custodial sentence, but not
as long as the magistrate imposed. While the magistrate took the
accused’s youthfulness into account, it seems to me that he
gave it too little weight. The length of the sentence imposed in
this case on a youth who committed the crime while still a juvenile
creates a sense of shock especially when one takes into consideration
that he spent 16 months in custody awaiting trial.

[7] In
the result the following order is made:

1. The
   conviction is confirmed.

   
   

2. The
   sentence is set aside and replaced with the following sentence:

   
   

“9 (nine) months
imprisonment of which 3 (three) months are suspended for 3 (three)
years on condition that the accused is not convicted of housebreaking
with intent to steal and theft, or of theft, committed within the
period of suspension.”

3. The
   sentence is backdated to 3 April 2012.

   
   

----------------------------------

K
van Niekerk

Judge

----------------------------------

S
F I Ueitele

Judge