Sentences slashed, convictions overturned

Review judgments by the High Court last month granted relief to at least seven people convicted and sentenced by magistrate's courts.

07 November 2019 | Justice

At least seven people who pleaded guilty to crimes involving drugs, assault and theft recently had their convictions and sentences either tossed out or dramatically slashed for being too severe or based on faulty and unjust trials.

In an appeal judgment issued recently, High Court Judge Christie Liebenberg set aside a conviction of possession of Mandrax and a four-year prison sentence imposed on Angela Marukus (31). Marukus, a single mother of three from Grootfontein's Blikkiesdorp, is now free after serving one year of her four-year sentence.

Marukus had pleaded guilty, and represented herself, after she was found in possession of 35 Mandrax tablets valued at N$3 525 last year.

In her appeal she pleaded for a lesser sentence on the grounds of being a first-time offender and the sole caregiver of her three children.

Ultimately, her grounds of appeal were irrelevant when Liebenberg said a look at her case records gave rise to the question whether the magistrate had misdirected himself by convicting her on a “charge that was defective in that it did not disclose an offence.”

Liebenberg said the charge did not refer to methaqualone, the active ingredient of Mandrax, as is required by law. He said the State had “relied on the wrong section when charging the appellant” and this resulted in her being “wrongly convicted and sentenced of the more serious offence of dealing in a potentially dangerous dependence-producing substance.”

In a review of another case related to Mandrax, Liebenberg also dismissed the conviction and sentence.

The case of Esnatoe Motinga, who had pleaded guilty to possession of the drug, was referred back to the magistrate's court with the instruction that Motinga should admit to the possession of methaqualone in particular. Liebenberg said although the accused gave an “elaborate” confession, he did not admit to being in possession of methaqualone.

He said the conviction was not in “accordance with justice” and the accused was prejudiced during the proceedings.



Unjust

In another review case a man's four-year prison term was slashed by half, as the sentence was “too harsh” and “not in accordance with justice”, especially in the case of a first offender who confessed to the crime. Gift Sililo Ilukena (29) had pleaded guilty to the theft of an ox with an estimated value of N$5 000. In his conclusion High Court Judge Boas Usiku said punishment “should not only fit the crime committed but also the criminal” and should be “blended with a measure of mercy.” He concluded that Ilukena was “punished to the point of breaking him.” The judge also criticised the magistrate presiding over the case, who used “her own knowledge of cattle prices in the area as an aggravating factor.” Usiku upheld the conviction of theft, but substituted the four-year prison sentence with three years, of which one year was conditionally suspended for five years.



Harsh

A man who was sentenced to five years in prison after confessing to stealing N$18 350 from his employer also received a reprieve after his prison term was reduced to an effective two years. Oshakati Judge Herman January said the five-year term imposed on Abraham Christof Higoam was “startlingly inappropriate” and not in line with punishments for similar crimes. He referred to a previous case in which an offender was given a 36-month prison term for stealing N$20 000, and another who was given four years for theft of N$190 000 from an employer. January said although theft was a serious and prevalent crime, in this case the magistrate exercised his discretion unreasonably by imposing a maximum sentence on a first offender who had pleaded guilty to the charge. Naas Mbundu's 18-month prison term was reduced to a N$1 000 fine or 12 months behind bars, wholly suspended for three years. Mbundu had pleaded guilty to possession of 160 grams of cannabis, valued at N$450. High Court Judge Naomi Shivute said in her appeal judgment that the magistrate had been influenced by the seriousness of the offence and the prevalence of the crime in the district, “at the expense of the personal circumstances of the accused, thus resulting in a harsh sentence.” She emphasised that Mbundu was a first offender, that he had pleaded guilty and that the quantity of dagga was relatively small. Gelasius Mununga's sentence of a N$3 000 fine or 12 months' imprisonment for assault was also dismissed in October and any money Mununga had paid must be refunded. The decision to set aside Mununga's conviction was based on the unprocedural handling of the case, in which a magistrate altered a plea of not guilty to that of guilty after the State had led evidence. High Court Judge Shivute in this case noted that the magistrate upon enquiry had admitted “the procedure adopted was strange and that the accused was entitled to a verdict”. Shivute said the magistrate had also misdirected himself by finding that Mununga had admitted to all allegations, but that the court records showed otherwise.

She said the proceedings in the case “were so irregular and serious” that they undermined the entire trial.

Domingos Filipe, who was arrested at Noordoewer in July this year for illegal entry into Namibia, was given a reprieve in October after High Court judge Christie Liebenberg set aside his conviction and sentence.



JANA-MARI SMTIH

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