![LEX SCRIPTA with Fedden Mainga Mukwata – S v Katale (CC 5-2021) [2022] NAHCNLD 80 (2 September 2022)](https://neweralive.na/wp-content/uploads/2024/06/newera-one-1-3-1-12.jpg "newera one 1 3 1")
S v Katale (CC 5-2021) [2022] NAHCNLD 80 (2 September 2022) – Criminal law – Sentence – lengthy sentences of imprisonment may have diminishing returns
On 25 August 2022, the accused was convicted of Arson and Murder, with direct intention to kill, read with the Combating of Domestic Violence Act 4 of 2003. At the pre-sentence hearing, the State called the deceased’s cousin to give evidence and express her view concerning the crime, the person responsible, the impact of the crime on the deceased and her family, and the need for restitution and compensation. The accused did not give evidence in mitigation, but his legal practitioner of record placed his personal circumstances on record from the bar during submissions.
The High Court considered the applicable principles of law to determine the appropriate sentence, and stated that “To determine the appropriate sentence, the court must have regard to the triad factors, namely the personal circumstances of the accused, the offence and the crimes committed, and the interests of society. Punishment must fit the criminal as well as the crime. Considering the circumstances, it should be fair to the community as far as possible, but also blended with a measure of mercy”.
The primary purposes of punishment are deterrence, prevention, reformation and retribution. At the same time, deterrence is the all-important object of a sentence, with the other aspects as accessories. Retribution is of lesser importance in modern times. However, in sentencing, the difficulty arises not from the general principles applicable, but from the complicated task of harmonising and balancing these principles, and applying them to the facts.
In S v Gaingob and Others 2018 (1) NR 211 (SC), the Namibian Supreme Court warned against lengthy sentences of imprisonment that have diminishing returns, and thus eventually subjecting the accused to cruel, degrading and inhuman punishment that infringes their right to human dignity enshrined in the Namibian Constitution. The persistent demand for more severe sentences to be imposed on offenders for specific crimes should not blind a Court. Public expectation is not synonymous with the public interest. Courts serve the interests of society, and should not be insensitive to or be ignorant of general feelings and expectations, but courts may not blindly adhere to that.
Uniformity of sentences may be desirable, but the desire to achieve such uniformity cannot be allowed to interfere with the free exercise of discretion by a judicial officer in determining the appropriate sentence in a particular case in light of the relevant facts in that case, and the circumstances of the person charged.
In the result, the accused was sentenced to an effective 25 years imprisonment on the two charges after the part of the arson sentence was ordered to be served concurrently with the sentence imposed on the murder charge.
S v Gawusab (CR 39-2022) [2022] NAHCNLD 83 (07 September 2022) – Criminal law – Review – Trial court to enter plea of not guilty when required to – Judicial officer not entitled to cross-examine
The accused was charged in the Magistrate’s Court with the offence of theft, and pleaded guilty to the charge. After questioning by the magistrate in terms of section 112(1) (b) of the CPA, he was convicted and sentenced to a fine of N$ 2 000 or twenty-four months imprisonment.
The reviewing court sent a query to the magistrate, inquiring why the magistrate proceeded to question the accused after he indicated early in his plea of guilty that he mistakenly used the money as he thought it was his, thus denying intention to steal, instead of entering a plea of not guilty in terms of section 113 of the CPA? The magistrate replied that as the plea questioning went further, the accused admitted having the intention to permanently deprive the lawful owner of the money and the learned magistrate was satisfied that was essential, thus a plea of guilty was recorded.
The reviewing court considered the questioning of the magistrate, and found that the accused very early on during questioning denied the intention to steal as he mistakenly believed that he was entitled to the money. The magistrate by then realised that the accused was offering a possible defence, and instead of entering a not guilty plea in terms of Section 113 of the CPA, started repeating her line of questioning with ‘Why are you pleading guilty?’ The questioning that followed reminds one more of those found during cross-examination by a prosecutor than the neutral questions expected from a judicial officer.
The basic principles governing questioning by a magistrate in terms of section 112(1)(b) were mentioned in S v Pieters 2014 (3) NR 825 (HC) as: ‘firstly, s 112(1)(b) does not entitle the court to cross-examine an accused person. . .Secondly, leading questions should as far as possible be avoided. . .Thirdly, in questioning an accused person in terms of s 112(1)(b), a court should bear in mind the right of an accused person, in terms of the Constitution, to be presumed innocent, as well as the right to a fair trial before an independent and impartial court.’
In S v Gases 2016 (4) NR 980 (HC), it was determined that a failure of the trial court to enter a plea of not guilty in terms of the provisions of section 113 of the CPA when required to do so amounted to a material misdirection that invalidates the plea of guilty. The proceedings, considered in conjunction with the above principles, could not be certified as being in accordance with justice, and stood to be set aside.
In the result, the conviction and sentence were set aside, and the matter was remitted back to the Magistrate’s Court in terms of section 312 of the CPA for the magistrate to enter a plea of not guilty in terms of section 113 and finalise the matter.
S v Tjikumisa (CR 38-2022) [2022] NAHCNLD 82 (07 September 2022) – Criminal law – Review – Questioning in terms of section 112 of CPA must establish elements of the offence
The accused pleaded guilty in the Magistrate’s Court to a charge of robbery, and after questioning in terms of Section 112(1) (b) of the CPA, was convicted as charged. The accused was sentenced to a fine of N$ 2 000 or twelve months imprisonment. The review court queried the magistrate that:
The essential elements of Robbery are (1) theft, (2) violence/threats, (3) submission and (4) intention. Which questions by the learned Magistrate covered the elements of violence and submission to establish the causal link between the violence/threats of violence and the theft?
Why was the alleged place of the crime, name of the complainant and value of the property not covered by questions from the Magistrate?
The magistrate responded that in respect of the first question, the accused admitted that he grabbed the cell phone from the complainant, which suggest that force was used. This was done while the complainant saw the accused doing that, so this was a case of taking the item by using violence (grab) to overcome any resistance in case the complainant would offer any since the complainant could see what the intention and the conduct of the accused was. In respect of the second question, the magistrate conceded that this was not done.
The review court examined the purposes of questioning in terms of section 122(1)(b) as stated in S v Augustu (CR 24/2021) [2021] NAHCMD 158 (15 April 2021); S v Thomas 2006(1) NR 83, and found that no question was posed to the accused if the complainant resisted his action – to grab the phone from her pocket as she saw him do so. The element of force, intimidation or threats used could not be assumed from the information before court. As is, the questions only satisfied the offence of theft, which is distinguishable from the offence of robbery as discussed in S v Tjivikua 2005 NR 252 (HC), suffice to state that the question is whether the actions of the accused, even to the slightest degree, forced the complainant into submission. Unfortunately, this aspect was not covered by the magistrate’s questions.
After the questioning by the magistrate, the accused was convicted without the prosecutor being asked if the plea, as tendered, was accepted. Had that been complied with, the State would have had the opportunity to indicate that all the elements and/or allegations were not covered during the magistrate’s questioning. Furthermore, if a plea of not guilty was entered, they would have had the opportunity to present evidence on the disputed details of the charge.
In conclusion, if all the allegations are not covered by questions from the magistrate, how could he be certain that the accused admitted to the charge before court? In the result, the conviction and sentence were set aside, and the matter was remitted to the Magistrate’s Court in terms of section 312 to comply with the provisions of section 112 and finalise the matter.
S v Keukeni (CR 40-2022) [2022] NAHCNLD 85 (08 September 2022) – Criminal law – Trial proceeding before magistrate other than the magistrate who noted the plea (section 118 of CPA) – caution in re single witness – approach where there is mutually destructive evidence
The accused pleaded not guilty in the Magistrate’s Court to a charge of common assault (read with the provisions of the Combating of Domestic Violence Act). The trial proceeded before a different magistrate than the one who noted the plea, and after the evidence of the complainant, was convicted as charged, and sentenced to ‘A fine in the amount of N$ 4 000 or 4 months imprisonment, which is wholly suspended for a period of 3 years on condition that the accused does not commit the crime of assault common, read with the provisions of the Domestic Violence Act, during the period of suspension’.
The reviewing court sent a query to the learned magistrate regarding why there was no entry made in terms of section 118 of the CPA regarding the unavailability of the magistrate who had taken the plea before the trial before a different magistrate; how the magistrate satisfied that the State proved the allegations beyond reasonable doubt in light of contradictions in the testimony of the complainant and the medical report; the vagueness of the sentence; and in which terms the rights to review and appeal were explained to the accused?
The magistrate conceded to the first query as an oversight. The review court stated that section 118 allows for a different magistrate to proceed with trial after a plea of not guilty only if the initial magistrate is unavailable. It is the duty of the State to place the reason for such unavailability on record, and failure to do so renders the continuation of the trial before the magistrate irregular. However, as per S v Mwalyombu (CR 58/2017) [2017] NAHCMD 271 (25 September 2017), the circumstances of each case will determine if such irregularity vitiates the entire proceedings.
In respect of the second query, the court found that the complainant was a single witness who testified that she was beaten by the accused with sticks and fists all over her body, and that she received treatment the next day for ‘swollen areas’. However, the medical report made no mention of any such ‘swollen areas’ or any injuries. The State submitted that they did not prove the allegations beyond reasonable doubt, and requested the court to exercise caution when weighing the evidence of the single witness. The accused further denied assaulting the complainant, and repeated his version under oath – the court a quo was confronted by mutually destructive evidence (see approach in S v Britz CC 02/2017 (2017) NAHCMD 326 (16 November 2017). Having considered the matter, the review court found that the trial court’s assessment of the evidence was not properly done, and not in accordance with justice.
In the result, the conviction and sentence were set aside.
Fedden Mainga Mukwata is an admitted Legal Practitioner, writing in his personal capacity for the Promotion of Law and Justice Project of FASZ Legal Consultancy. He may be reached at