CASE NO.

: CR 01/2010

IN THE HIGH COURT OF NAMIBIA

HELD IN OSHAKATI

In the matter between:

THE STATE

and

NGAHUKIRO MUHARUKUA

(HIGH COURT REVIEW CASE NO.: 27/2010)

CORAM: LIEBENBERG, J. et TOMMASI, J

Delivered on: 16.03.2010

REVIEW JUDGMENT

LIEBENBERG, J.: [1] Accused, aged 15 years, appeared before the Opuwo
magistrate’s court on a charge of housebreaking with intent to steal and theft. He was
convicted on his plea of guilty whereafter the matter was postponed twice, pending a
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pre-sentence report invited by the court. When after two months the report was not
forthcoming, the magistrate proceeded with sentence and imposed the following
sentence: “Accused is sentenced to a (10) ten months imprisonment suspended in total
for a period of (2) two years on condition that accused is not convicted of
housebreaking with intent to steal and theft committed during the period of
suspension.”

[2] When the matter came before me on review, the following query was directed to
the learned magistrate:

“1. In order to be guilty of housebreaking with intent to steal and theft, the accused
must have had the intent to steal at the stage when he entered.
According to the accused he entered to ask for food. Thus, could he have
been convicted as charged?

2. The accused appears to be a child in need of care, why did the court not
insist on receiving a pre-sentence report instead of finalizing the matter
without it?

3. Please provide reasons for the sentence imposed given the young age of
the accused.”

[3] The magistrate in her reply concedes that the accused should not have been
convicted of the crime of housebreaking with intent to steal and theft and that the
accused was only guilty of theft. Regarding sentence the reply was the following:

“It was the intention of the Magistrate to have a pre-sentence report through out, but
it was not forth-coming. And I opted for a fine which is suspended. The reason was
to prevent accused from the prison and give him a chance to reform. That was the
reason for the sentence imposed.” (Emphasis provided)

The magistrate’s reference to a ‘fine’ she claimed to have imposed, is clearly a

mistake, as a wholly suspended custodial sentence was imposed and not a fine.
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[4] Pursuant to his plea of guilty the accused was questioned in terms of s.112 (1)(b)
of the Criminal Procedure Act, 51 of 1977 (the Act), and when asked the reason why
he had entered the house, he replied: “To ask for food from the person who stays there
but there was no answer.” No further questions were posed to him regarding his
entering through a door (which was not locked) and the focus then shifted to the items
the accused admitted stealing i.e. a cell phone; MP4 music player and Web camera to
the value of N$1935-00.

[5] The court a quo could not have been satisfied that the accused had the required
intent to steal at the time of the breaking – by pushing open the door – and therefore
could not have convicted the accused as charged. The magistrate concedes that she
erred and invites the Court to substitute the conviction with one of theft as the accused
admitted having stolen the items in question.

[6] I agree that the accused in effect pleaded guilty to theft and that he admitted all
the elements of the crime, however, by substituting the conviction with theft would
deprive the State of proving the original offence for which the accused was charged
(housebreaking with intent to steal) against him by leading evidence. It obviously
remains for the State to decide whether it would accept the accused’s plea on a lesser
offence, but then it should be afforded the opportunity of considering such possibility.
Whereas the accused in effect pleaded guilty to an offence other than the one he was
charged with, he can only be convicted of such (other/lesser) offence once the
prosecutor accepts that plea (s.112 (1) (b) of the Act). If the State declines the
accused’s plea, then a plea of ‘not guilty’ must be entered in terms of s.113 and the
State has to lead evidence to prove the offence against the accused.

[7] For the aforementioned reasons the conviction cannot be permitted to stand and
will be set aside.

[8] Following his conviction on 13 October 2009 the magistrate explained to the
accused his rights to mitigate whereafter the accused opted to call his grandmother to
testify on his behalf and then stated the following:
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“I am facing a problem at the house. We are only eating for some days and some
days we don‟t. We are (7) seven in total and we are staying with my grandmother. I
was schooling and I was in Grade 4 at Alfa. I came out from school due to financial
problems. I ask for Community Service Order sentence. The reason is that I must go
and impress the complainant.”

The matter was thereafter postponed to 19 November 2009 ‘for defence and social
welfare report‟ and although the guardian of the accused was present, he was
remanded in custody.

[9] With his next appearance the court was informed that no report had been
received from the social worker and the matter was again postponed until 08
December 2009 whilst the accused remained in custody.

[10] On 08 December 2009 the case was postponed to 28 December 2009 „for
further investigation‟ and the accused remanded in custody. I pause here to remark
that no mention was made during this appearance about a pending pre-sentence report
and what progress had been made in obtaining such report.

[11] When the matter was called on the 8th of December 2009 the following appears
from the record:

“ON: 28/12/09
BEFORE: L.T. IIYAMBO
PP: ASSISTANT SGT KALOMHO
INT: H. MUSEWA
GUARDIAN: PRESENT

PP: Is a case for sentence.

Accused is a minor 15 year old. He has been in custody since June. In as much as he
is having other cases, he has not been convicted of any offence. The law pertaining
to juvenile offenders has been clarify, the courts are urged to opt to non custodial
sentences that allows accused person to reform from his criminal activities (f)ears
are that if such accused are given custodial sentence they emerge worse off than they
were before convictions. The court is therefore recommended and to consider non-
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custodial sentences especially Community Service so that accused did not divorce his
society, and he may also have his guardian, to have her eyes on him. Community
service entails an element of embarrassment and a lesson to would be offenders to his
age, thus hitting two birds with one stone further more, if the accused is given
community service, the state request the court to make a further order for accused to
meet with a Social Worker for counselling.” (sic)

[12] The magistrate thereafter pronounced the sentence set out in par.[1] supra
without giving reasons for the sentence imposed or informing the accused that the
court decided to dispose of the matter without the pre-sentence report. Most
importantly, the accused was never afforded the opportunity to call his grandmother
in mitigation and as he was in custody at the time, it would have required the court’s
intervention in bringing her before court. In the absence of a pre-sentence report the
grandmother was the best person to enlighten the court as regards the accused’s
background and the prevailing circumstances at home. In the circumstances, the
court’s failure to assist the accused to place such crucial evidence before the court, in
my view, amounts to an irregularity vitiating the proceedings.

[13] When the matter returned to court on 19 November 2009 and the prosecutor
informed the court that, after one month, the pre-sentence report was not yet available,
the magistrate at least should have determined from the clerk of the court whether the
report had been requested from the social worker and what was the cause of the delay.
The same applies to the accused’s appearance on 08 December 2009 when the matter
was postponed for „futher investigation.‟ It seems evident that the magistrate did not
apply her mind to the matter before her and simply adhered to the request of the
prosecutor to postpone the case, even for the inappropriate reason advanced. This
simply confirms the notion this Court has that, when it comes to the postponement of
cases in the magistrates’ courts of this country, then some magistrates merely rubber
stamp whatever reason is advanced to court for a postponement, instead of
considering the application by hearing both sides and thereafter, objectively, rule in
favour of or against the applicant, as the case may be.

[14] It was compelling for the magistrate to play a more active role in obtaining the
pre-sentence report as the accused was merely 15 years old and at that stage, in police
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custody for almost six months. Until the stage of sentencing, there is absolutely
nothing on record showing that a pre-sentence report had been requested from a social
worker; what progress had been made on its preparation, and when it would become
available. For the court a quo to simply adopt the attitude of abandoning the decision
requiring a pre-sentence report to be submitted and then proceed with imposing a
totally suspended sentence might seem the easy way out, but, as upper guardian of all
minor children, it sadly failed in its duty to act in the best interest of the accused, a
young child. I say this for the following reasons: By then the accused had already
related to the court the circumstances back home under which he and six others were
living with his grandmother and that some days passed without them having food to
eat; that the accused had dropped out of school for financial reasons; that he entered
the complainant’s house in order to ask for food; and that there were other cases
pending against the accused which certainly increased the possibility that he would be
sent to prison in the near future.

[15] In these circumstances the trial court was under a duty to acquaint itself with the
personal circumstances of the unrepresented juvenile accused and the best way of
doing that, was by means of a pre-sentence report, compiled by a social worker after
full investigation of the conditions in which the accused was living. Only after the
court was fully informed would it have been in the position to impose a suitable
sentence. To impose a sentence of imprisonment, albeit wholly suspended, on a
fifteen year old boy who is involved in committing crime to survive, in my view, is
almost like sending him to prison, as it just seems to be a matter of time before he
ends up behind bars and where he will be in contact with hardened criminals. This
would neither be in the interests of the accused nor that of society, as the accused is
bound to return to society one day; and, because of being exposed to hardened
criminals in prison, he might end up with a more distorted personality than what he
had before. In this regard it seems necessary to give heed to the following passage in
S v Jansen 1975 (1) SA 425 (A) at 427H – 428A:

“In the case of a juvenile offender it is above all necessary for the court to
determine what appropriate form of punishment in the peculiar circumstances
of the case would best serve the interests of society as well as the interests of
the juvenile. The interests of society cannot be served by disregarding the
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interests of the juvenile, for a mistaken form of punishment might easily result
in a person with a distorted or more distorted personality being eventually
returned to society.”

[16] In the present case the circumstances did not, in the absence of a thorough
investigation into the personal circumstances of the accused, justify the imposition of
a custodial sentence. Had the court insisted on a pre-sentence report being submitted
before sentence then it might have had something before it gainsaying the allegations
made by the accused; explaining the alleged circumstances under which he committed
the crime; or shed some light on the circumstances at home in which the accused was
living. It might turn out that he exaggerated the conditions back home in an attempt
to mislead or find sympathy with the court – something the court was also entitled to
know in sentencing him. This underscores the importance of a pre-sentence report
where an independent investigation is done on the personal circumstances of a
juvenile who has become involved in committing crime; and which report is aimed at
assisting the court to come to a just and proper sentence.

[17] In my view, nothing positive has come from the sentence imposed on the
accused in this case as the accused was simply sent back to the circumstances where
he comes from and in which he regularly clashes with the law. A proper investigation
into the accused’s personal circumstances might reveal that he is a child in need of
care as defined in the Children’s Act, 33 of 1960 and that the court may decide to
convert the proceedings into an enquiry in terms of s.254 of the Criminal Procedure
Act, 1977. Once the court is fully informed of the circumstances surrounding the
accused, it would be in the position to impose a just and proper sentence.

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

1. The conviction and sentence are set aside.

2. The matter is remitted to the Opuwo Magistrate’s Court in terms of
s.312 (1) Act 51 of 1977 and the court is directed to enquire from the
State whether it accepts the accused’s plea of guilty on theft or to act in
terms of s.113, as the case may be.
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3. In the event of the accused being convicted the court is directed to

approach sentence along the guidelines set out in this judgment.

__________________________
LIEBENBERG, J

I agree.

__________________________
TOMMASI, J