S v Afrikaner (CR 34/2009) [2009] NAHC 26 (15 April 2009);

CASE NO. CR 34/2009

IN THE HIGH COURT OF NAMIBIA

In the matter between:

THE STATE

Versus

PAULUS PAUL AFRIKANER Accused

CORAM: SWANEPOEL, A.J. et ANGULA, A.J.

HIGH COURT REVIEW CASE NO. 426/2009

Delivered on: 2009.04.15

REVIEW JUDGMENT

ANGULA, A.J.:

[1] The accused was charged with assault with intent to do grievous bodily harm. The State alleged that he stabbed the “complainant with an empty Zorba bottle on the face thereby sustaining injuries”. He pleaded guilty to the charge. He explained that he hit the complainant with a bottle on the head during an argument over a bottle of beer. On a question by the Magistrate why he hit the complainant with the bottle he responded that he just got angry. The accused was accordingly convicted as charged.

[2] In mitigation of sentence he informed the Court that he was 32 years old; single, but had a live-in girlfriend with four minor children; that he was employed as a shepherd; and that he could pay a fine of N$500,00. The State prosecutor informed the Court that the accused was a first offender and could afford to pay a fine. The State therefore recommended a fine of N$600,00 or 4 (four) months imprisonment. The Magistrate, however, imposed a sentence of 24 (twenty-four) months imprisonment without the option of a fine.

[3] The conviction is in order, however, the sentence of 24 (twenty-four) months imprisonment is startlingly inappropriate, viewed against all the mitigating factors placed before Court such as the fact that the accused is a first offender; he pleaded guilty; the offence appeared to have been committed at the spur of the moment under what appears to be a brawl over a bottle of beer; the record does not show the extent of the injuries sustained as no J88 was handed in as is practice in matters of this nature; it does not also appear whether the complainant received any medical treatment. Having regard to all those factors, I am of the view that the Magistrate did not give sufficient weight to the mitigating factors. Had he done so he would not have imposed the sentence he imposed. Failing to do so constitutes a serious misdirection entitling this Court to interfere with the sentence. In my view, the Magistrate should have considered imposing a fine and, in default, a period of imprisonment. In the result the sentence imposed by the Magistrate will be interfered with.

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

1. The conviction is confirmed.

2. The sentence of 24 (twenty-four) months imprisonment without the option of a fine is set aside and substituted with the following sentence:

N$1000,00 (one thousand Namibia dollar) or 6 (six) months imprisonment.

_________________

ANGULA, A.J.

I concur.

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SWANEPOEL, A.J.