S v Mundundu (CR 72-2021) [2021] NAHCMD 387 (01 …



PRACTICE DIRECTIVE 61

REPUBLIC OF NAMIBIA

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IN THE HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

|Case Title: |Case No: |

|The State v Augustinus Mundundu |CR 72/2021 |

|High Court MD Review No: |Division of Court: |

|1662/2021 |Main Division |

|Heard before: |Delivered on: |

|Mr Justice Liebenberg et |01 September 2021 |

|Lady Justice Shivute | |

| |

|Neutral citation: S v Mundundu (CR 72/2021) [2021] NAHCMD 387 (01 September 2021) |

|The order: |

|The conviction is confirmed and the sentence imposed is set aside and substituted with a fine of N$ 8 000 or in default 12 months’ imprisonment.|

| |

| |

|The sentence is antedated to 13 August 2021. |

|Reasons for the order: |

|This matter came before me on automatic review in terms of section 302 (1) and s 303 of the Criminal Procedure Act 51 of 1977 (the CPA). |

| |

|The accused person appeared before the Magistrate’s Court for the district of Rundu for contravening s 90(a) of the Customs and Excise Act 20 of|

|1998 (the Act), i.e. possession of illicit products. He pleaded |

|guilty and after he was questioned in terms of s 112(1)(b) of the CPA, convicted and sentenced to pay a fine of N$ 15 000 or in default 3 years’|

|imprisonment. |

| |

|The conviction is in order and will be confirmed. The sentence however is a proverbial thorn in the flesh of the in the interest of justice as I|

|find it to be shockingly inappropriate and not in accordance with justice. After enquiries were made, it was discovered that the accused person |

|is incarcerated at the Grootfontein prison as he was unable to pay the fine imposed. Therefore, in light of the prejudice to be suffered by the |

|accused person by his continued incarceration due to any further delay, s 304(2) is dispensed with. |

| |

|The penalty provision for contravening s 90(a) of the Act provides as follows: |

|‘…shall be guilty of an offence and on conviction be liable to a fine not exceeding N$ 20 000 or to an amount equal to three times the value of |

|the goods in respect of which such offence was committed, whichever is the greater, or to imprisonment for a period not exceeding five years or |

|to both such fine and imprisonment.’ |

| |

|During mitigation, the accused person indicated that he was the sole breadwinner of his family, which consist of his elderly mother and his |

|wife. He further placed it on record that he does piece work by laying bricks, cutting meat and selling the products he was found in possession |

|of in order to put food on the table. This was confirmed by his wife under oath. He informed the court a quo that he can afford to pay a fine of|

|N$ 2 000 as opposed to direct imprisonment. |

| |

|The court a quo, in its reasons for sentencing recognized that the accused was a fist offender, that he pleaded guilty and that his plea of |

|guilt may be viewed as a sign of remorse[1]. It however further cited the ancient South African court of appeal matter of R v Karg[2] as its |

|basis for imposing a heavy sentence for serious offences, indicating that ‘if sentences for serious crimes are too lenient, the administration |

|of justice may fall into disrepute…’[3] The latter case was an appeal against a 2 year term of imprisonment, wherein the accused person was |

|charged with culpable homicide for recklessly or negligently using a firearm. The appeal court found that due to the seriousness of the offence,|

|there was a need for severe punishment. Clearly, the Karg matter is of no relevance to the charge which the accused person is facing and is of |

|no application to the facts at hand. The court a quo misdirected itself by quoting it as justification to impose a high fine, while merely |

|paying lip service to the accused person’s personal circumstances and guilty plea. |

| |

|It is evident that the sentence that was imposed by the court a quo is unjustifiably severe and startlingly inappropriate on a first time |

|offender. In State v Mbaendavi[4] it was held that: |

|‘Over the years the courts have laid down certain guidelines where the appeal or review Court is entitled to interfere with a sentence imposed |

|by a lower court and one such instance is where the sentence imposed is startlingly inappropriate, induces a sense of shock and there is a |

|striking disparity between the sentence imposed by the trial court and that which would have been imposed by the court of appeal’. |

| |

|The matter at hand is not an instance where the accused was dealing in illicit products on a large scale but rather where he was found in |

|possession of sachets containing whisky to the value of N$ 4 100 which he intended to sell in order to make a living. Although the seriousness |

|of the offence should not be underrated, the magistrate in this instance clearly overemphasized the seriousness of the offence at the expense of|

|the accused’s personal circumstances. It has neither been suggested nor shown that the particular offence is prevalent in the district of Rundu.|

| |

| |

|Moreover, the accused person’s guilty plea is one of the factors which the court a quo ought to have taken into account when sentencing. As I |

|indicted In S v Kohler[5] ‘the accused’s plea of guilty, coupled with a genuine show of remorse, is a factor weighing heavily with the court |

|which should lead to a significant reduction in sentence.’ Additionally, as indicated before, he was a first time offender with dependents and |

|he unequivocally informed the court a quo of how much he can afford to pay as a fine. The fine ultimately imposed was evidently far beyond the |

|accused persons’ means, which inevitably resulted in him having to serve the period of 3 year’s imprisonment, imposed in the alternative. |

| |

|In the result, it is ordered: |

| |

|The conviction is confirmed and the sentence imposed is set aside and is substituted with a fine of N$ 8 000 or in default 24 months’ |

|imprisonment. |

|The sentence is antedated to 13 August 2021. |

| | |

|J C LIEBENBERG |N N SHIVUTE |

|JUDGE |JUDGE |

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[1] Page 6 of the record.

[2] R v Karg 1961(1) SA 231 at 236 B.

[3] Page 7 of the record.

[4] State v Mbaendavi (CR 40/2016) [2016] NAHCMD 141 (12 May 2016).

[5] S v Kohler (CC 21/2016) [2017] NAHCMD 60 (07 March 2017)

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