CASE NO.: CA 07/09
IN THE HIGH COURT OF NAMIBIA
HELD AT OSHAKATI
In the matter between:
DIVINE BERNADETTA SIMAO
APPELLANT
and
THE STATE
RESPONDENT
CORAM: LIEBENBERG, AJ et
SHIVUTE, AJ
Heard on: 09 March 2009.
Delivered on: 09 March 2009
Reasons released on: 20 March 2009.
APPEAL JUDGMENT
SHIVUTE, AJ.: [1] This is an appeal matter against
conviction. The appellant was convicted of entry into Namibia without
an unexpired passport bearing a valid visa or authority in
contravention of section 12 (1), read with section 1, 2 and 12 (4) of
the Immigration Control Act, (Act No 7 of 1993).
[2] The appellant when she appeared in the court a quo her age
was indicated as 19 years. However during the appeal hearing it
turned out that she was aged 24 years. The appellant pleaded guilty
to the charge and was sentenced to effective imprisonment of 6
months.
[3] This appeal is directed against the sentence.
[4] Among the grounds for an appeal are the following:
The magistrate disregarded the fact that the appellant was a first
offender.
The magistrate disregarded the fact that the appellant was
remorseful, and pleaded guilty.
The magistrate disregarded the fact that the legislature made
provision for an option of a fine.
The learned magistrate disregarded the fact that to arrive at the
decision what the appropriate sentence should be, it is the duty of
the court to have regard, not only to the nature of the crime
committed and the interest of the society, but also the
personality, age and circumstances of the offender.
[5] On the other hand the magistrate indicated that he took into
account the nature of the offence committed, the interest of the
society and personal circumstances of the appellant. He further
stated that the court exercised its discretion judiciously.
It is not mandatory that if an optional fine sentence is provided
for, it must always be imposed.
[6] The court must always firstly consider whether justice will not
be served by the imposition of a fine. In this regard see R v Ndlovu
1967 (2) SA 230 (R)
“Imprisonment should be
reserved for serious cases that is cases where there are serious
economic or security implications, cases where there are previous
convictions or cases for which one reason or another, require strong
deterrent action.
The object of punishment is
to hurt the offender and to hurt him sufficiently to prevent him
committing a similar offence; and also of course, to warn others of
the consequences of committing such offences.
It seems to me that nowadays
a substantial fine is often sufficient to provide the necessary
hurts. If an offender is goaled for a short period it has no
rehabilitation effect on him, and becomes a burden to the state for
the period that he is in prison”.
[7] Punishment is pre-eminently a matter for the discretion of the
trial court and this Court will not easily erode the discretion of
the lower courts, unless the discretion has not been judicially and
properly exercised. See: The State versus Aungea Tuyoleni NAHC
unreported delivered on 02/10/06.
[8] In mitigation the appellant addressed the court as follows:
“I apologise. I ask
for forgiveness. I am able to raise a fine of N$1000-00”.
No previous convictions were proved against the appellant.
[9] An appeal court can interfere with a sentence imposed by the
trial court "…where,
the dictates of justice are such as clearly to make it appear to this
court that the trial court ought to have had regard to certain
factors and that it failed to do so, or that it ought to have
assessed the value of these factors differently from what he did,
then such action by the trial court will be regarded as a
misdirection on its part entitling this court to consider the
sentence afresh”.
See: A.
Shikesho vs. The State
Case no: CA 111/2008 unreported delivered on 13/10/2008.
[10] Given the personal circumstances of the accused and the nature
of the crime, this Court cannot hold that the magistrate exercised
his discretion judicially and properly. Had this Court sat as a court
of first instance, it would in the circumstances, have imposed a
fine. The sentence of 6 months direct imprisonment imposed by the
court a quo is startingly inappropriate, inducing a sense of
shock and there is a striking disparity between the sentence imposed
by the trial court and that which would have been imposed by the
court of appeal ( S v Tjiho 1991 NR 361 (HC).
[11] In the circumstances, where the appellant has already served
part of the sentence, the court does not consider it proper to impose
a fine now.
[12] Consequently, I make the following order:
1. The appeal against sentence is upheld.
2. The sentence of six (6) months imprisonment is set aside
and substituted with the
following sentence:-
Six (6) months imprisonment of which four (4) months imprisonment is
suspended for a period of five (5) years on condition that the
accused is not convicted of contravening section 12 of Act 7/1993
committed during the period of suspension.
3. The sentence is antedate to 14 January 2009.
_________________________
SHIVUTE, AJ
I concur
_________________________
LIEBENBERG, AJ
ON BEHALF OF THE STATE
Mr. R. Shileka
Instructed by: Office
of the Prosecutor-General
ON BEHALF OF DEFENCE Ms.
F.Kishi
Instructed by:
Kishi
Legal Practitioners
S v Simao (CA 07/09) [2009] NAHC 28 (09 March 2009);