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REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT ON REVIEW

Case No. CR 33/2015

In the matter between:

THE STATE

and

DAWID SKRYWERACCUSED

(HIGH COURT MAIN DIVISION REVIEW REF NO. 1557/2015)

Neutral citation:S v Skrywer (CR 33-2015) [2015] NAHCMD 258 (30 October 2015)

CORAM: UNENGU, AJ. etMASUKU, AJ.

Delivered: 30 October 2015

Flynote:CRIMINAL PROCEDURE – Provisions of s 112 (1) (a) and s 112 (1) (b) and when they apply reexamined. CRIMINAL LAW – contravention of Part I of the Schedule to sections of Act 41 of 1971.

Summary:The accused was charged with illegal possession of habit-forming substance. He pleaded guilty and was convicted on his own plea in terms of s 112 (1) (a) and was sentenced to custodial sentence without the option of a fine. Held the magistrate erred in applying the aforesaid provision. Held prosecutor has a duty to assist the court in deciding whether to apply s 112 (1) (a) or (b). Held further that contravention of Act 41 of 1971 dealing with dependence-producing drug or plant is a serious offence and trial magistrates are advised to invariably apply s 112 (1) (b) regardless of weight of substance alleged to have been in accused’s possession. Conviction and sentence set aside and matter remitted to be tried by another magistrate.

ORDER

  1. The conviction and sentence of the accused in terms of s 112 (1) (a) is set aside.
  2. The matter is remitted for trial before another Magistrate of co-ordinate jurisdiction.
  3. The period the accused has spent in custody is to be taken into account in any sentence the trial court may impose on the fresh trial.

JUDGMENT ON REVIEW

MASUKU, AJ.

[1]This matter serves before me on special review. The accompanying letter dated 1 October 2015 states that the trial magistrate erred in invoking the provisions of s 112 (1) (a) of the Criminal Procedure Act[1] (the ‘Act’), instead of the provisions of s 112 (1) (b of the Act. The matter is thus before me for directions as to the future conduct in view of the concession, which I fully share that the incorrect provision was applied.

[2]In order to appreciate the reasons why I concur that the learned Magistrate invoked the wrong section, it is necessary to briefly sketch the facts giving rise to the present imbroglio. I do so presently.

[3]The accused was arraigned before the Mariental Magistrate’s Court charged with a single count of contravening the provisions of s 1, 2 (i) and/or 2 (iv), 7, 8, 10, 14 and Part I of the Schedule of Act 41 of 1971, as amended. It was alleged that the said accused was found in possession of or for his use, a prohibited dependence-producing drug or a plant from which such a drug can be manufactured, to wit 65 grams of cannabis valued at N$325, 00. This is alleged to have taken place on 29 August 2015 in Schlip.

[4]When called upon to plead, the accused pleaded guilty and he was dealt with in termsof the provisions of s 112 (1) (a) i.e. on the basis of his own guilty plea. He was, after mitigation, sentenced to 18 months imprisonment, six of which were suspended for a period of 5 years on condition that he is not, within the period of suspension found guilty of possessing dependence producing drugs.

[5]After conviction, it came to light that the accused had a formidable series of previous convictions which were relevant to the offence of which he had recently been convicted. In particular, it was found that the accused had seven previous convictions for possession of drugs which included possession of mandrax and cannabis. Other convictions included assault and stock theft. None of these previous convictions were denied and these were for that reason accepted as such and were not proved.

[6]In his summation before meting sentence mentioned above, the learned Magistrate stated the following, in part:

‘Accused is not a first offender, and previous convictions is mere disregard of the law. Accused was convicted (sic) with possession of Cannabis on 20th June 2008, possession of mandrax tablets on 28th June 2006, possession of cannabis on 19th 2003 and also same year on 13th November 2013 convicted of possession of cannabis, and also in (sic) 18th of August 1993, counting in total 5 previous convictions. But still the accused was not deterred and seemed that accused never learned his lesson, and don’t want to refrain from this type of behaviour, yet accused is asking for suspended sentence to change and stop his bad habits, court is of the opinion that accused behaviour is deliberate and that he could have stopped if he wanted after 5 convictions. However, the court is not ignorant that accused is an elderly person and under medication and also a father to 3 children, and surely that if accusedis send (sic) to prison his family might suffer, but sentence has to be impose (sic), to show that the court will not take this type of offence coupled with previous convictions lightly.’

[7]The relevant provisions read as follows:

‘(a) the presiding judge, regional magistrate or magistrate may, if he or she is of the opinion that the offence does not merit punishment of imprisonment or any other form of detention without the option of a fine or of a fine exceeding 6 000, convict the accused in respect of the offence to which he or she has pleaded guilty on his or her plea of guilty only and –

(i)impose any competent sentence, other than imprisonment or any other form of detention without the option of a fine or a fine exceeding N$6 000; or

(ii)deal with the accused otherwise in accordance with the law;’

[8]In S V Onesimus, S v Amukoto, S v Shipange[2] Liebenberg J dealt extensively with the application of the provisions of section 112 (1) (a). At par [5] of the judgment, the learned Judge reasoned as follows:

‘From the wording of ss (1) of s 112 it is clear that the presiding officer is authorised to convict an accused on his bare plea of guilty where he or she is of the opinion that the offence in question does not merit certain kinds of punishment; or a fine exceeding N$6000. The presiding officer therefore has a discretion which must be exercised judiciously. This discretion will mainly be influenced and determined by the circumstances of any particular case and the information available to the presiding officer, allowing him or her to form an opinion. It seems to me that in order to make a judicial discretion at all possible, there has to be sufficient information before court to rely on, which would enable it to reach a decision as to the correct procedure to be followed. Whereas the court in most instanceswould have very little information to decide on, besides what is alleged in the charge, it would be useful for the presiding officer to request the prosecutor to give a short summary of the State’s case if the court is uncertain whether or not it should question the accused in terms of s 112 (1) (b). At the plea stage, the prosecutor has more information of the offence allegedly committed and the circumstances surrounding the commission of the crime than the court would have; therefore the court is obliged to question the accused about the alleged facts, if the prosecutor directs such request to the court in terms of s 112 (1) (b). This would normally occur when the case involves a serious offence or when the accused has previous convictions, obviously unknown to the court.’

[9]In his treatise, the learned Judge referred to a judgment of Hannah AJ in S v Aniseb and Another[3]where the court emphasized that the provisions of s 112(1) (a) apply to minor offences. Hannah A J has this to say in this regard:

‘The policy behind s 112 (1) (a) is clear. The Legislature has provided machinery for the swift and expeditious disposal of minor criminal cases where the accused pleads guilty. The trial court is not obliged to satisfy itself that an offence was actually committed by the accused but accepts his plea at face value. The accused thus loses the protection afforded by the procedure envisaged in s 112 (1) (b), but he is not exposed to any really serious form of punishment. The court may not pass a sentence imprisonment or any other form of detention without the option of a fine or whipping and any fine imposed must not exceed N$300.’ (Emphasis added).

[10]The underlined portion above, is in my view, very important and constitutes a distinguishing factor in the application of the provisions of s 112 (1) (a), amongst others. Where the court is of the view that it may be necessary, on the facts at its disposal, to impose a custodial sentence without an option of a fine, or a fine exceeding N$ 6000, it then becomes clear that the provisions of s 112 (1) (a) should not be invoked. That may constitute a case for invoking s 112 (1) (b). That this is the case, can be seen from the provisions of s 112 (1) (a) (i).

[11]In the instant case, it is clear that the learned Magistrate imposed a custodial sentence, without an option of a fine and for that reason, it becomes clear that the provisions of s 112 (1) (a) should not have been invoked. It became clear that the offence proved to have been more serious than first comprehended. The true colour and enormity of the offence was laid bare for all to see and appreciate once the accused’s antecedents, namely the disclosure of his previous convictions.

[12]I should repeat the sentiments expressed by Liebenberg J quoted above that the prosecutor, who is normally possessed of more information than the court, should use that information wisely and alert the court as to the inadvisability of invoking the provisions of s 112 (1) (a) in appropriate cases, without necessarily letting the full size and colour of the cat in the bag as it were. This is a duty prosecutors owe to the court as the court is not placed in possession of such information and it is not proper or prudent that the court should possess such information in any event, if it is to do justice as the blindfolded Themis, the goddess of justice exemplifies. The court can, in many cases, only with the assistance of the prosecution, be able to properly decide which of the two provisions to invoke.

[13]As a cautionary measure however, presiding officers would be advised in matters connected to allegations of contravention of provisions related to possession of habit-forming substances to err on the side of safety by invoking the provisions of s 112 (1) (b) for the reason that on any construction, these offences are not and cannot be properly regarded as minor. This is because of their potentially deleterious consequences and effect on society and individual users. A cue as to the seriousness attached thereto can be gleaned from the sentencing regime prescribed by the Law-Giver. For example, for a first offender, the fine is up to the maximum of N$30 000 or to imprisonment for a period not exceeding 15 years or to both such fine and imprisonment.

[14]By any standards, the above sentencing regime is stiff and reflects theseriousness of the solicitudes attached to these types of offences by the legislature. It would appear to me to be an erroneous approach to only have regard to the amount of substance allegedly found in the possession of an accused person and concluding that because of what may appear to be a negligible amount of the obnoxious substance, the offence is therefore a minor one, calling for the invocation of s 112 (1) (a).

[15]In the circumstances, I am of the view that the offence in question was serious and rendered the more serious after conviction by the revelation of the accused person’s antecedents. To this extent, considering the sentence the learned Magistrate found condign, which did not include a fine, but only a custodial sentence, which was however conditionally suspended, rendered the provisions of s 112 (1) (a) totally inappropriate. It is for the following reasons that I am in full agreement that the error admitted by the learned Magistrate was fairly and properly conceded. It is for that reason necessary for this court to interfere with the conviction and sentence imposed.

[16]In the premises, I am of the view that the conviction returned pursuant to the provisions of s 112 (1) (a) cannot be allowed to stand. It also stands to reason that the sentence imposed cannot be allowed to stand and it is hereby set aside. Considering that the trial magistrate became privy to the accused’s antecedents, I am of the view that it would be inappropriate in the interests of justice to remit the matter to the same magistrate for commencing the trial afresh. Another magistrate of co-ordinate jurisdiction should be allocated to deal with the matter afresh.

[17]I therefore issue the following order:

[17.1]The conviction returned against the accused is hereby quashed and the sentence meted to him is hereby set aside.

[17.2]The case is remitted to another Magistrate of a similar class to commence with the matter de novo.

[17.3]At the new proceedings initiated, the new trial magistrate shall have regard to the period the accused may have spent in custody pursuant to the conviction that has been set aside in this judgment.

______

TS Masuku, AJ

Acting Judge

I agree

______

EP Unengu, AJ

Acting Judge

[1] Act 57 of 1977.

[2] 2011 (2) NR 461.

[3] 1991 NR 203 (HC) (1991) (2) SACR 413 at 415 g-i.