CASE NO.: CR
07/2012

IN THE HIGH COURT OF NAMIBIA

HELD AT OSHAKATI

In the matter between:

THE STATE

and

DAVID AMUKUSHU

(HIGH COURT REVIEW CASE NO.:
316/2011)

CORAM: LIEBENBERG,
J. et TOMMASI, J.

Delivered on: 02 March 2012

REVIEW JUDGMENT

LIEBENBERG,
J.:
[1] The accused was convicted in the Magistrate’s Court
Opuwo on a plea of guilty to a charge of theft (from a motor vehicle)
and sentenced to a fine of N$3 000 or 3 years’ imprisonment,
partly suspended on condition of good conduct.

[2] The accused
was questioned pursuant to the provisions of s 112 (1)(b) of the
Criminal Procedure Act, 1977¹
during which he admitted his unlawful taking of goods from a truck
parked at a house with the intention of selling it. When questioned
on the goods alleged to have been stolen, the following appears from
the record of proceedings:

“Q: It
is alleged that you took 3 [charge sheet reads 32] pair (sic) of
Adidas shoes, 3 jackets, 6 T-shirts, 2 pairs of shoes and a panga
all valued at N$10 069. Do you agree with the value or dispute it?

A: I
took 4 T-shirts, 3 jackets, 4 pairs of shoes, 3 trousers. That’s
all.

Q: Do
you agree with the value?

A: Yes,
as I don’t know how much each item costs.”

……………………

……………………

Q: What
happened to the goods you took?

A: I
sold some and some were recovered.

PP: No
record against accused person.”

The accused and the
prosecutor thereafter addressed the court on sentence, whereafter the
court imposed sentence. The accused was unable to pay the fine;
hence the matter being subject to review.

[3] When the
matter came before me on review I directed a query to the magistrate
as regards (i) the admission made by the accused concerning the value
of the goods actually taken by him, compared to the total value of
the goods as reflected in the charge and which the court apparently
relied on when sentencing; and (ii) the alternative imprisonment to
the fine imposed, being disproportionate.

[4] Gleaning from
the record it would appear that, despite the accused only admitting
theft of some
of the items listed in the charge, the court asked him whether he
agreed with the value being N$10 069 as stated in the charge; and
because he had no knowledge of its value, he replied that he had no
option other than to agree with the value reflected in the charge.
Although the value of goods, forming the subject matter of a charge
of theft, is not an element of the offence, it could (and in this
instance it certainly does), impact severely on the sentence to be
imposed. Although charged with theft of 32 pairs of Adidas shoes
valued at N$8 000, the accused admitted to have stolen only four
pairs, the value of which is about N$1 000 (N$250 each). The court
could therefore not have been satisfied that the accused admitted the
value of the goods actually stolen to remain at N$10 069, and now
concedes having misdirected itself in that regard.

[5] There is
however something else that needs to be addressed, and that is, that
although judgment is reflected on the charge sheet, it does not form
part of the proceedings itself. The record merely reflects that
immediately after questioning the accused, the prosecutor informs the
court that the State does not prove any previous convictions against
the accused. Furthermore, in her reply the magistrate says that the
State accepted
the plea, but this is not borne out by the excerpt from the record
(supra).
The accused pleaded guilty to theft of goods substantially less than
charged with and the court could only have convicted the accused
after the prosecutor had informed the court that it would accept the
plea on that basis; which clearly was not done.²
In the absence of the State’s acceptance of the lesser plea,
the court could not have been satisfied “that
the accused
is
guilty of
the offence to which he has pleaded guilty”³
and should first have enquired from the prosecutor whether or not the
lesser plea would be accepted by the State; and if not, to have
entered a plea of not guilty in terms of s 113. The conviction thus,
is not in accordance with justice and must be set aside.

[6] The
magistrate’s reply relating to the alternative sentence of
imprisonment to the fine is not entirely clear to me and I am not
sure whether or not it is conceded that it is indeed disproportionate
to the fine imposed. Be that as it may, it has been said that the
alternative imprisonment must not be disproportionate to the fine
imposed and “The
imprisonment should therefore be just severe enough to make failure
to pay the fine problematical”⁴.
I have already in the case of The
State v Benjamin Mbwale⁵
extensively
dealt with the approach
to
be followed when the court decides to impose a fine, and in respect
of the alternative imprisonment, the following appears at p. 4 para
[7]:

“Having
decided what an appropriate fine would be, the court next has to
decide what alternative sentence it must impose should the accused
be unable or unwilling to pay the fine; and this is where judicial
officers often go wrong. When deciding on the term of imprisonment
in the alternative to the fine, the court need not concern itself
with deciding what punishment
would be appropriate, for that has already been determined when the
court decided to impose a specific fine. What needs to be
determined is the sanction to be applied when the fine is not
paid. As the court had to decide what impact the fine would have on
the accused and whether it would adequately censure his
misdemeanour, it now equally applies to the alternative
imprisonment. Thus, the purpose of the alternative imprisonment is
not to punish the accused per
se, but rather to
induce him pay the fine. If for some reason he fails to do so, then
he must serve his sentence of imprisonment.”

[7] Alternative imprisonment of
three years to a fine of N$3 000, in my view, is severe and
disproportionate to the fine imposed; and can hardly be seen to
“induce him to pay a fine” or “to make
failure to pay the fine problematical”. The court has
already decided that a fine in the circumstances would suffice;
however, by imposing a term of imprisonment of three years as
alternative is to punish the accused more severely than what the
court initially intended and cannot be seen as inducement to pay the
fine.

[8] In the result, the Court makes
the following order:

1. 
   The conviction and sentence are set
   aside.

   
   

2. 
   The matter is remitted to the
   Magistrate’s Court, Opuwo in terms of s 312 (1) of Act 51 of
   1977 with the direction to comply with the provisions of s 112
   (1)(b) or to act in terms of s 113, as the case may be.

   
   

3. 
   In the event of a subsequent
   conviction the court in sentencing, must take cognisance of the
   guidelines provided herein, whilst also taking into account the
   sentence already served by the accused.

   
   

4. 
   If in the mean time a part-fine has
   been paid, the accused must be refunded.

   
   

________________________________

LIEBENBERG, J

I concur.

_______________________________

TOMMASI, J