S v Imbili (CR 111 of 2022) [2022] NAHCMD 560 (17 October 2022)

Case Title:

The State v John Imbili

Case No:

CR 111/2022

Division of Court:

Main Division

Heard before:

Usiku J et Claasen J

Delivered on:

17 October 2022

Neutral citation: S v Imbili (CR 111/2022) [2022] NAHCMD 560 ( 17 October 2022)

ORDER:

1. The conviction is confirmed.

2. The sentence is set aside and substituted as follows:

The accused is sentenced to pay a fine of N$1000 or 3 months’ imprisonment.

The sentence is backdated to 22 August 2022.

REASONS FOR ORDER:

Claasen J (Usiku J concurring):

[1] The accused appeared in the district court of Otjiwarongo on a charge of theft of mascara valued at N$607.84. After having questioned the accused in terms of s 112(1)(b) of the Criminal Procedure Act No 51 of 1977 (the CPA), the accused was convicted and sentenced to pay a fine of N$ 1000 or 6 month’s imprisonment.

[2] Having received the matter on automatic review the conviction is in order and will be confirmed. The same cannot be said about the sentence imposed. The review court will not address a query to the presiding magistrate as it will cause prejudice to the accused if there is a delay in time.

[3] The qualm that the review court has with the sentence is that the ratio between the fine and the imprisonment is disproportionate. In S v Mynhard; S v Kuinab¹ general guidelines were given for the imposition of a fine and one of these principles is that the alternative term of imprisonment should be proportionate to the fine.

[4] In considering the sentence, the magistrate was well within her discretion to afford the accused the option of a fine. Though the offence is serious in nature, the accused tendered a guilty plea at the first appearance, he was a first offender and the complainant suffered no loss as the stolen mascara was recovered. Thus, no issue arises in that regard.

[5] Conversely, we are of the view that the alternative term of imprisonment is too harsh in relation to a fine that was imposed, which makes it a disproportionate sentence. The court a quo misdirected itself in that regard and this court will adjust the sentence accordingly.

[6] In the result the following order is made:

1. The conviction is confirmed.

2. The sentence is set aside and substituted as follows:

The accused is sentenced to pay a fine of N$1000 or 3 months’ imprisonment. The sentence is backdated to 22 August 2022.

C M CLAASEN

JUDGE

D N USIKU

JUDGE