5-year shoe theft sentence slashed
23 August 2019 | Justice
The original sentence was unjust and not fitting the petty crime, Acting Judge Orben Sibeya said in a review judgment.
The court upheld Musche Muchaka's theft conviction, but Sibeya said, “I hold the view that the sentence is not in accordance with justice.”
He set aside the five-year sentence, plus a previously suspended nine-month sentence for theft.
Instead, Sibeya sentenced Muchaka to an effective one year behind bars, while suspending an additional 12 months for five years on condition Muchaka is not convicted of theft for a fifth time.
Muchaka was convicted of theft three times in 2016. On the first two occasions, he was fined N$200 and N$300. On the third conviction, of stealing a packet of biscuits valued at N$41.85 at a Megasave store in December 2016, he received a two-year prison sentence.
“Notwithstanding his character manifested in his previous convictions, a sentence of five years' direct imprisonment for such a transgression cannot be justified as it is too excessive, shocking and startlingly disproportionate to the offence committed and thus not in accordance with justice,” Sibeya said, with Judge Nate Ndauendapo concurring.
Sibeya remarked that the magistrate who had imposed the sentence could not be faulted for taking this stance, as it was evident Muchaka is a habitual criminal.
He also noted that previous convictions would in appropriate cases lead to heavier sentences, but added that “such sentence should still be reasonable”.
He stressed that Muchaka's crime was “literally shoplifting from Jetmark stores”, and that the shoes had been recovered after his arrest.
Therefore, he said, the decision to impose a five-year sentence meant the magistrate had lost sight of the nature of the petty crime, as well as the nature of the prior crimes.
“The sentence to be imposed should at all times be meted out in proportion to the current offence,” Sibeya stressed.
This is not the first time Muchaka has experienced the justice system's merciful side.
In early 2017, after he had pleaded guilty to stealing the N$41 packet of biscuits –“due to hunger” he explained, he was initially given a two-year direct prison sentence.
On review, that sentence was also set aside and declared to be disproportional to the crime committed.
Muchaka's two-year sentence was set aside, and he was given an effective nine-month prison term, and an additional nine months were conditionally suspended for five years.
This suspended sentence was added to the five-year prison sentence handed down earlier this year.
In 2017, when he was convicted of the biscuit theft, the magistrate reasoned that it was “evident the accused had not learned any lesson”, while also highlighting the high level of theft in the Zambezi Region and noting that it was in the interest of society to impose a custodial sentence.
Sibeya nevertheless this week stressed that despite the previous convictions of theft, the “punishment should fit the crime.”
He said the previous convictions were for “petty theft offences” and that the conviction on the charge of theft of the biscuits “is not different and I opine that it equally amounts to a petty offence”.
Moreover, he noted that the five-year prison sentence imposed against Muchaka for the theft of shoes valued at less than N$50 was based on the magistrate's view that a fine would not be appropriate as it had not stopped Muchaka from stealing again. The magistrate also noted that Muchaka had “made a mockery of the criminal justice system and disrespected it, because he knows that he would just receive suspended sentences or fines for his offences.”
Sibeya however referenced a previous High Court judgment in which the justices said: “Where it may be justifiable to impose escalating sentences on a repeat offender, there are boundaries to the extent to which sentences may be increased when dealing with petty crimes.”