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S v Cambinda; S v Agostino; S v Carvalho (CR7/06; CR7/06 ; CR5/06 ; CR6/06) [2006] NAHC 2 (24 January 2006)

.RTF of original document

THE STATE v AUGUST CAMBINDA CASE NO.: CR 07/2006

THE STATE v HELDER AGOSTINO CASE NO.: CR 05/2006

THE STATE v LUKAS CARVALHO CASE NO.: CR 06/2006

SILUNGWE, J et MTAMBANENGWE, AJ

24 January 2006

CRIMINAL PROCEDURE

SENTENCING - Consistency – Advantage of – Promotes Legal

Certainty – Approach of Sentencer - Justice must not only be done but also seen to be done.

CASE NO.: CR 07/2006

IN THE HIGH COURT OF NAMIBIA

In the matter between:

THE STATE

versus

AUGUSTO TCHIWALA CAMBINDA

(HIGH COURT REVIEW CASE NO.: 1871/2005)

and

CASE NO.: CR 05/2006

THE STATE

versus

HELDER AGOSTINO

(HIGH COURT REVIEW CASE NO.: 1877/2005)

and

CASE NO.: CR 06/2006

THE STATE

versus

LUKAS CARVALHO

(HIGH COURT REVIEW CASE NO.: 1879/2005)

CORAM: SILUNGWE, J et MTAMBANENGWE, AJ

Delivered on: 2006.01.24

REVIEW JUDGMENT

[1] SILUNGWE, J.: As all three cases share a common problem , it is convenient to consider them together.

[2] Each accused appeared in the Rundu Magistrate’s Court charged with a contravention of section 12(4) of the Immigration Act No 7 of 1993. They all tendered pleas of guilty and were accordingly convicted as charged. They were then sentenced (by the same presiding magistrate) as follows:

Augusto: N$3000.00 or 2 years imprisonment

Helder: N$4000.00 or 12 months imprisonment

Lukas: N$4000.00 or 12 months imprisonment

The convictions were in accordance with justice and are thus confirmed; but the sentences were not, for the reasons that follow.

[3] In other two similar case disposed of by the same presiding magistrate during the same month (i.e. October 2005), namely:

1. The State v Oseias Lavadi Case No.: 1873/2005; and

2. The State v Manuele Gome Muangole Case No.: 1876/2005;

each accused pleaded guilty to a contravention of Act 7 of 1993 and was, on conviction, sentenced to a fine of N$3000.00 or to one year imprisonment. I pause here to mention that their respective convictions and sentences have previously been confirmed by this Court.

[4] In the two confirmed cases aforesaid, as in the present three cases, the accused were first offenders and the differences in their respective personal circumstances are nothing to write home about.

[5] In the premises, the disparity in the sentences meted out in the three cases under consideration is conspicuously unjustifiable. Where similarly placed accused commit similar crimes, in the absence of special aggravating circumstances and remarkable divergent personal circumstances, the sentencer is constrained to pass similar or not widely divergent sentences. It is of fundamental importance that justice must not only be done, but should manifestly be seen to be done from the viewpoints of both the accused and the public. See: S v Shadaya 1977 (4) SA 108 (RA) 133D; The King v Sussex Justices (1924) 1 KB 256; S v Saidi 1981 1 SA 83 (2A) 86B-G. One advantage of consistency is that it promotes legal certainty, which in turn enhances respect for, and trust in, in the judicial system.

[6] In conclusion, the sentences in question are all set aside; in substitution therefor, each accused is sentenced to a fine of N$3000.00 or, in default of payment, to one year imprisonment.

_______________

SILUNGWE, J

I agree

________________________

MTAMBANENGWE, AJ