NO.: CC 18/2009
THE HIGH COURT OF NAMIBIA
the matter between:
on: 2011 January 21
Mr. Ephraim Kariko, I have convicted you on Theft, and Defeating the
course of Justice and it is now my duty to consider an appropriate
sentence for you. In doing so, I am alive to the factors mainly taken
into account when considering sentence, namely the crime, the
offender, and the interests of society, see S v
(2) SA 537 (A). It is common course that a sentence should as a
matter of fact be in line with the severity of the offence. I will
also take into account the sentencing objectives such as prevention,
deterrence, rehabilitation and retribution. In the process of
balancing the above objectives more reliance on one or some at the
expense of others cannot be ruled out.
Firstly regarding the crime in this matter, you have been convicted
of theft and defeating or obstructing the course of justice. The
incident took place at the deceased's business premises "Die
Restaurant", in Walvis Bay. On the afternoon of the day in
question, you assaulted the deceased to death in self defence, you
then dragged and locked the corpse in the store room. You went to the
restaurant and took N$800,00 cash, a cell phone, car keys, locked the
premises and threw away the keys. The police had to use a pair of
pliers to open the store room in order to remove the body of the
deceased. You took the deceased's Hyundai car and drove to Windhoek
where on arrival its number plates were removed. You were offering
the car for sale at N$20,000.00 and stickers were accordingly placed
on it to that effect.
Secondly the interests of society require that somebody's property
must be protected. If observed this practice would encourage working
hard so that each person acquires his own property or possessions.
through the resolution of disputes hands down decisions that
immensely contribute towards the maintenance of law and order, see S
SA 352 B.
I will now look at your personal circumstances. You opted to testify
under oath in your own mitigation of sentence. You are now 24 years
old and were 22 years at the time of the commission of this offence.
You were born in Walvis Bay where you were brought up by your late
grandmother. Your parents are still alive and reside in Windhoek. You
went up to grade 10 at Ella du Plessis, but you left school in 2004
to work at Hotel Furstenhof as a barman and waiter. You did this work
for seven months. From there you went to Walvis Bay where you worked
at the deceased's "Die Restaurant" as well as at Spar in
Swakopmund. You were unemployed at the time of the offence. You are
not married, and you have one six months old child who stays with
your mother. You have no previous convictions. You say you are very
sorry and feel bad that the deceased had died as well as for the
theft and obstructing the course of justice. Since the death of the
deceased you have night mares and do not sleep well. You are
therefore asking for forgiveness, you conceded in cross examination
that at the time of the offence you were already a mature person
exposed to the world in that you worked at different places in
various capacities. According to the State counsel you were therefore
able to distinguish between right and wrong.
State counsel, Ms. Ndlovu submitted that your conviction on theft, a
competent verdict of robbery makes you squally fall within the
provisions of section 14 of the Motor Vehicle Theft Act, Act no. 12
of 1999 as amended. According to her you must therefore be sentenced
to 10 years imprisonment as provided in section 15 (1)(ii)(aa) of
that Act, seeing that there are no compelling and substantial
circumstances that warrants a deviation from that mandatory sentence.
Your counsel, Mr. Wessels, submitted to the contrary saying that
section does not apply to you, because you never pleaded to any
offence in terms of the Motor Vehicle Theft Act, and neither were you
charged in the alternative in terms of it, but you were merely
convicted on theft as a competent verdict of robbery.
14 of the Motor Vehicle Theft Act, Act No. 12 of 1999 reads:
applicable in all cases where charge is one of theft of motor vehicle
or motor vehicle part,
The provisions of this Act shall
apply in every case where an accused is indicted, summoned or charged
in respect of the theft of a motor vehicle or motor vehicle part,
notwithstanding the fact that this act is not referred to in the
indictment, summons or charge."
It is clear from the above that this section only relates to accused
persons who have been specifically indicted, summoned, or charged in
respect of theft of motor vehicle or motor vehicle part,
notwithstanding the fact that the Motor Vehicle Theft Act, Act No. 12
of 1999 is referred to in the said indictment, summons or not charge.
The accused was charged with robbery and after the evidence could not
prove that he was convicted of theft of the deceased's property such
as a Hyundai Accent motor vehicle with the registration number
N1972WB and its ignition key, a cellular telephone, and at least
N$800,00 cash money.
Section 83 of the Criminal Procedure Act, Act No. 51 of 1977 as
Charge where it is doubtful what offence committed: -If by reason of
any uncertainty as to the facts which can be proved or if for any
other reason it is doubtful which of several offences is constituted
by the facts which can be proved, the accused may be charged with the
commission of all or any of such offences, and any number of such
charges may be tried at once, or the accused may be charged in the
alternative with the commission of any number of offences."
There is a clear distinction between an offence charged in the
alternative and a competent verdict. If the accused is specifically
charged in the alternative the existence of such an alternative
charge is not dependent on the main count at all. The reason being
that even if the main count were to be withdrawn, the alternative
would still remain operational.
On the other hand a competent verdict (lesser offence) is dependent
on the existence of the charge which has been specifically put to the
accused. (See R
v Seboko 1956(4)
SA at page 622 H)
It is therefore my considered view that the provisions of the Motor
Vehicle Theft Act does not apply on this matter.
In punishing you I am mindful of the fact that you have only been
convicted of 'theft', a lesser offence (competent verdict) on the
charge of robbery. It is also a serious offence, although not like
Had it not been for the swift conduct of one of your friends who
immediately alerted the police about the Hyundai car, you would have
sold it, you had already placed stickers on it, offering it for sale
at N$20.000,00. This is seen as an aggravating factor. As stated
above the car was then recovered, and so was the deceased's cellular
telephone. You had already spent the N$800,00 cash and nothing was
I cannot overemphasize the need to respect other people's property
and to stay away from it. Your sentence will help to prevent you from
taking other people's property without their consent. This would also
be the message to would be offenders out there.
In the result, you are sentenced as follows: Theft: Six (6) years'
the course of Justice: Two (2) years' imprisonment. It is ordered
that the sentences be served consecutively.
ON BEHALF OF THE STATE:
OFFICE OF THE PROSECUTOR-GENERAL
ON BEHALF OF ACCUSED: MR. WESSELS
BY: LEGAL AID