S v Roelf (CR 31/2009) [2009] NAHC 48 (15 April 2009);

CASE NO.: CR 31/2009

IN THE HIGH COURT OF NAMIBIA

In the matter between:

THE STATE

vs

LAURENTIUS ROELF

(HIGH COURT REVIEW CASE NO.: 418/2009)

CORAM: VAN NIEKERK, J et SILUNGWE, AJ

Delivered on: 2009 April 15

REVIEW JUDGMENT

SILUNGWE, AJ [1] Upon his own plea of guilty, the accused was convicted in the Karasburg Magistrate’s Court of housebreaking with intent to steal and theft involving household property valued at N$1 489-00. He was thereafter sentenced to three years’ imprisonment without the option of a fine.

[2] In response to a query on the apparent severity of the sentence and why part thereof had not been suspended, the presiding Magistrate concedes that, although the stolen property was not recovered, the value thereof is low; the accused has responsibilities towards his minor (eight year old) daughter and continues thus:

“Upon reflection I realise and concede that a sentence of three years is too severe. What influenced such sentence is the fact that the crime of housebreaking with intent to steal and theft is so rife in this small town. Poverty is also wide spread with a greater percentage of the population living below the poverty datum line. In other words if the complainant lost property to the value of N$1 489-00 it would be very hard for her to replace it. Such facts were not placed on record by way of evidence, but presiding officers being human do not sentence in vacuum. Like myself in this matter they tend to be influenced by the tempo of their environment.”

He concludes with a recommendation that one half of the sentence be suspended on the usual conditions.

[3] The accused’s personal circumstances were that he was aged 38 years at the time the sentence was passed. He had pleaded guilty to the charge and was a first offender. He had been unemployed at the time that the crime was committed but he was gainfully employed at the time of his conviction and sentence. The stolen property had been sold for N$500-00 and the ill-gotten proceeds spent on food. He was single but had an eight-year old school-going daughter for whom he was responsible. He pleaded with the court a quo to be spared from imprisonment so that he could not only save his job but also continue to provide for his daughter who was living with his aunt.

[4] After submitting, in aggravation of sentence, that the offence committed was very serious and prevalent; that the accused had permanently deprived the complainant of his valuables and benefited from the proceeds, the State Prosecutor recommended a sentence of N$1 500-00 fine or 15 months’ imprisonment in default of payment of the fine and a suspension of one half of the sentence (on the usual conditions).

[5] I agree with the learned trial Magistrate that the sentence he passed in this matter is too severe in the light of the offenders mitigating circumstances, not to mention the State Prosecutor’s submission in this regard.

[6] In consequence of what has been stated in the preceding paragraph (para 5), the following order is made:

1. The sentence of three years’ imprisonment is set aside. In substitution therefor, the offender is sentenced to 18 months’ imprisonment.

2. The substituted sentence is antedated to March 3, 2009, when the initial sentence was passed.

______________________

SILUNGWE, AJ

I agree.

_______________________

VAN NIEKERK, J