1
REPUBLIC OF NAMIBIA
REPORTABLE
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
CASE NO: CA 150/08
In the matter between:
URIPAYE TJIPOSAAPPELLANT
and
THE STATE RESPONDENT
Neutral citation:Tjiposa v The State (CA 150/2008)[2014]NAHCMD 305 (14 October 2014)
Coram: Damaseb, JP et Shivute, J
Heard: 13 October 2014
Delivered: 14 October 2014
Summary: where the liberty of the subject is concerned, the court, as ultimate protector of the rights of the people , must not promote form above substance and must act in favorem libertatis and do justice as meet the circumstances of the case. Court in circumstances declining to refer matter back to the court a quo for sentencing as doing so would only extend his incarceration when on the facts it is clear that he needs to be released immediately.
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ORDER
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The conviction and sentence are set aside and the appellant released immediately.
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APPEAL JUDGMENT
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DAMASEB, JP (Shivute J concurring):
[1]After questioning in terms of s 112(1) (b)[1] and on his purported plea of guilty, the appellant was convicted of the theft of three cattle[2], stated in the charge sheet to be valued at N$ 4800.[3]It is common cause that at the time the appellant was convicted, the minimum mandatory sentence for stealing cattle valued at N$ 500 or more was 20 years imprisonment, unless the accused was able to establish substantial and compelling circumstances - in which case the court could impose a lesser sentence.
[2]The appellant was sentenced to the minimum mandatory sentence of 20years on the premise that he had not established substantial and compelling circumstances.It is common cause that he lodged his appeal out of time. Given that the State does not oppose the same and that his prospects of success are good, this court grants him condonation.
[3]The disturbing aspect of this case is the manner in which the value of the stolen cattle was dealt with, both before conviction and before sentencing. When the appellant was asked to plead in terms of s 112(1) (b), he was not even as much as asked to confirm if he accepted that the value of the stolen cattle was N$ 4800 as alleged by the state.In addition, it was not explained to him that if he was able to establish substantial and compelling circumstances he could well escape the mandatory minimum sentence. The state concedes that before sentencing, the court a quo improperly failed to explain to the appellant that it could deviate from imposing the mandatory minimum sentence if he was able to establish substantial and compelling circumstances. It also concedes that the court a quo improperly assumed that the value of the cattle was established in the value alleged in the charge-sheet without it being properly proved.
[4]This court pointed out in S v SS[4] that the failure to properly inform an unrepresented accused at the plea stage of circumstances that may extenuate a very harsh penal regime may result in an accused not receiving a fair trial. As the court said:
‘[I]f an offence involves proof of a particular circumstance which serves as an aggravating factor justifying the imposition of a particularly severe penalty or the availability of a lesser sentence than would otherwise be the case if an extenuating circumstance is shown by the accused, it is necessary (a) to allege that circumstance in the charge-sheet and (b) to draw the accused’s attention thereto before he or she pleads guilty as (c) failure to do so may render the trial unfair. These principles are sound and should be acted on by the courts of Namibia.’
[5]If the appellant at the plea stage properlyappreciated the significance of what he was facing under the Stock Theft Act, it might well have served as an incentive to demand to be legally represented. The failure for him to be explained as stated in S v SS therefore caused him serious trial prejudice.
[6]Subsequent to the appellant being sentencedon 14 March 2006, the High Court declared the minimum mandatory sentence of 20 years for cattle valued at N$ 500 or more unconstitutional.[5] The upshot of that is that a court sentencing a person found guilty of stealing cattle valued at N$ 500 or above is not bound to impose a sentence of 20 years but any appropriate sentence merited by the circumstances of the case. Since the declaration of unconstitutionality of the provisions in question, this court has routinely and as matter of course set aside mandatory minimum sentences of 20 years challenged in this court, sometimes after several years of the matter being finalised and in circumstances where an appeal had been lodged substantially significant periods after the time for lodging such appeals had lapsed.
[7]The appellant was a first offender aged 21 years when the offense was committed and the stolen animals were recovered. These are very weighty mitigating factors. It is common cause that the appellant has been in prison for over 7 years. Had the court a quo properly dealt with the value of the stolen stock, this court would most certainly have sentenced him to an appropriate sentence as it saw fit. In the view I take of this matter, even if the value of the cattle had been properly established to be N$ 4800, the appellant would not have received a sentence of more than ten years of which not less than three years would have been suspended. There can be no doubttherefore thatthis court would in the present appeal haveinterfered with the sentence meted out on the appellant. In other words, we would have ordered his release today.
[8]It is a moot point that had his rights been properly explained and he took proper advantage of that and presented substantial and compelling circumstances, the appellant might well have received a substantially less sentence than the term he has served to date. On this score too therefore, an irregularity had been committed a quo which has the effect that the appellant did not receive a fair trial.
[9]It is also common cause that as the law stood at the time, in order for the appellant to have been sentenced to the mandatory minimum sentence, the value of the cattle stolen should have been N$ 500 or more. It is common cause that the State did not make the effort to call a witness to prove the value of the stock, nor was the accused asked to confirm if he accepted that the value of the stock was as alleged in the charge sheet. Given the gravity of the sentence the appellant faced and the fact he was unrepresented, the court had the duty to be satisfied that the value of the cattle was proved or that the appellant did not dispute it. That was another significant trial prejudice to which the appellant was subjected.
[10]We are therefore faced with the situation in which there was an irregularity at the plea stage and during the sentencing procedure.
Options open to this court in view of the irregularities
[11]The following options are open to this court in view of the irregularities I have identified. In the light of the finding that the case merited the appellant being properly explained the extenuating circumstances open to him at the plea stage, this court could well come to the conclusion that the appellant did not receive a fair trial. That would necessitate the trial being set aside. Secondly, the manner in which the matter was dealt with a quo is such that this court is placed in the position of having to considerremitting the matter to the regional court to deal with that matter properly and to consider a sentence afresh.[6] I am satisfied that is not a path that leads to justice as remitting the matter will occasion the appellant greater injustice as I will presently demonstrate.
[12]Considering that the sentence the appellant is presently serving was meted out in a legal setting that has since been declared unconstitutional, it is important that this court not perpetuate an injustice by remitting the matter and causing him even greater injustice by placing form before substance. As the adage goes: Infavorem vitiae, libertatis et innocentiae ominia praesemuntur.[7]Had the legal regime of a mandatory minimum sentence of 20 years not been reversed by this court, the magistrate's failure to properly deal with the value of the stock at the stage he pleaded guilty, would have counted in his favour in that it could have been found to be a material irregularity resulting in him not receiving a fair trial. He needs therefore to receive the benefit of that doubt especially since the circumstances he finds himself in is, principally, the consequence of a statutory provision which no longer enjoys the forceof law.
[13]The conceded irregularity attributable to the court a quo's failure to require the value of the stolen stock being properly proved before sentence has, in the light of the declaration of unconstitutionality of the mandatory minimum sentence applicable in the present case, become academic as regards the order this court can make about it. That is so because if the S v Kalueefelwasupra approach were applied[8], upon referral back the magistrate has two options:(a) either to punish the appellant on the assumption that the stock's value was less than N$ 500 and thus impose a mandatory minimum sentence of not less than two years as contemplated by s 14 (1) (a) (i), alternatively (b) to enable the State to prove the actual value of the cattle for purposes of sentencing afresh. The first option would not advance the appellant's liberty in that it would be a pyric victory while extending his incarceration while it is being considered. The second option would equally be academic and also only extend his incarceration beyond what is justified by the circumstances of this case as that court is in any event no longer under the obligation to impose the mandatory minimum sentence and would have to consider a sentence afresh which, in the view I take of the matter, would not be more than the period the appellant has already served. This court, as ultimate protector of the liberties of the subject, must guard against promoting form against substance by remitting the matter to the court a quo, and act instead in favorem libertatis of the appellant.
[14]I come to the conclusion that the circumstances of this case justify the conclusion that the appellant did not receive a fair trial as contemplated by Art 12(1) (a) of the Constitution of Namibia and that for that reason both his conviction and sentence be set aside.
Order
[15]The conviction and sentence are set aside and the appellant released immediately.
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PT Damaseb
Judge-President
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N N Shivute
Judge
APPEARANCES
APPELLANT: NPS Nambinga (Amicus)
RESPONDENT: JT Kuutondokwa
Of Office of the Prosecutor-General
[1] Of The Criminal Procedure Act, 51 of 1977.
[2] Taking into consideration the provisions of s 11(1) (a), 1,14 and 17 of the Stock Theft Act, No. 12 of 1990.
[3] The amended s 14(1) (a) (ii) of the Stock Theft Act states that a person who is convicted of an offence of theft of stock other than poultry of which the value is N$ 500 or more shall be liable in the case of a first conviction, to imprisonment for a period not less than twenty years without the option of a fine.
[4] 2014 (2) NR 399 at 404, para 18.
[5]Daniel and Another v The Attorney General and Others) 430-2009) NAHC 66 ( 10 March 2011).
[6] Compare S v Kauleefelwa 2006 (1) 102 at 105A-C.
[7]In favor of life, liberty and innocence every presumption is accepted: in other words, the court must seek to act in a way that promotes the liberty of the subject rather than in diminution of it.
[8] That is that the upon referral back the magistrate sentence the appellant as if the proven value of stock stolen was less than N$ 500.