Stock theft in spotlight

Appeal against 18-month sentence backfires

13 August 2019 | Justice

An 18-month jail sentence for the theft of three goats valued at N$2 400 will be increased by at least six months after the man's sentence was found to be too lenient.

Last week judges Johanna Salionga and Herman January of the Oshakati High Court in a review judgment confirmed the conviction of Tjaritye Matine, but set aside his one-and-a-half-year prison term.

They issued a directive to the magistrate who handled the case to impose a longer sentence of two years or more in line with the Stock Theft Act.

“The magistrate is directed to inform the accused that the sentence will have to be increased considering his personal circumstances, the seriousness of the offences, the prevalence thereof and that it was clearly well premeditated,” the judges ruled.

The case was remitted to the magistrate to sentence the accused “afresh in according with the directions of this court.”

The review judgment underlines that under Namibia's Stock Theft Act a distinction is made between cases where the value of the stolen livestock is less than N$500 and cases where the value is N$500 or more, but that in either case imprisonment is mandatory and a fine is not an option.





Under exceptional circumstances, where the courts are presented with substantial and compelling circumstances in a case where a person is convicted of stock theft to the tune of less than N$500, a shorter imprisonment can be imposed or wholly or partly suspended.

Moreover, while the law prescribes a minimum two-year custodial sentence for stock theft valued at less than N$500, no minimum sentence is prescribed for cases of stock theft of N$500 or more.

This is due to a landmark 2011 High Court judgment, which declared unconstitutional the minimum 20-year sentence for first offenders of stock theft, and the minimum mandatory 30-year sentence for repeat offenders.



What is proper?

A 2013 High Court judgment underlined that, as per the 2011 ruling, the minimum sentence of two years for stealing livestock valued at less than N$500 was left intact.

“The applicable sentence in such a case is still imprisonment for a period of not less than two years without the option of a fine. Furthermore, the only sentence that may be imposed for stock theft, irrespective of whether the value is more or less than N$500, is still only imprisonment without the option of a fine.”

In 2017, in another stock theft judgment, Judge January stressed that the courts “may not impose a sentence of a fine” and underlined that if the minimum sentence prescribed for stock valued at less than N$500 is two years' imprisonment, “it stands to reason that the court cannot impose a sentence of less than two years' imprisonment for stock worth more than N$ 500 despite the fact that there are no prescribed minimum sentence at present, the latter having been struck down.”

Salionga and January last week underlined in the Matine judgment that while a 20-year sentence was no longer applicable for stock theft cases of N$500 or more, the court was not permitted to impose “any sentence” and that the sentencing options are limited to imprisonment.

The two judges said further that “common sense dictates that an accused having committed stock theft with a value of less than N$500 should not be worse off than one who committed the offence where the value is more than N$500.”

They found that the 18-month prison sentence Matine had received for stock theft with a value of N$2 400 is “nearly five times more than N$500”.

The sentence therefore “has the effect that the accused in this matter is better off” than a person who is convicted of stock theft valued at less than N$500.

The judges declared this to be “unfair and is not reflecting the intention of the legislators”.

The judgment notes that the sentence Matine should face should not be less than the minimum sentence for those found guilty of stealing livestock valued at less than N$500.

In the Daniel v Attorney-General appeal at the High Court in 2011, the appellants were Protasius Daniel and Willem Peter, who collectively faced 50 years behind bars for the theft of nine goats (Daniel) and a cow (Peter).



Misunderstanding

In a 2013 review judgment, a man who had stolen a sheep valued at N$750 had told the magistrate “I stole out of hunger”.

Despite his circumstances, he was sentenced to a two-year jail term.

On review, High Court Judge Kato van Niekerk noted in her judgment that it was not necessary for the magistrate to determine whether there were substantial and compelling circumstances justifying a lesser sentence, as the stock in question was valued at more than N$500.

Nevertheless, she added that the “magistrate clearly laboured under the misconception that the applicable prescribed sentence was one of two years' imprisonment, which is a misdirection.”

Van Niekerk underlined that the “accused's personal circumstances, which were apparently accepted by the magistrate, are dire indeed. Although stock theft is a serious crime and prevalent throughout Namibia, the fact that the accused at the age of 50 is a first offender is an indication that he is not in need of a two-year sentence of imprisonment to deter him from committing crimes. In my view a shorter and partly suspended sentence would meet the demands of this case.”

She ordered that the man, Benjamin Tjiromungua, be sentenced to 20 months' imprisonment, of which 10 months were conditionally suspended for four years.

Several other stock theft sentences have been reviewed and set aside as a result of the interpretations of magistrates of the law.

JANA-MARI SMITH