S v Olivier (CRIMINAL 162 of 2001) [2001] NAHC 46 (14 December 2001)

Ci R. CU, THE STATE v TERMOS NVULA THE STATE v ALFRED ALBERT OLIVIER C A SE NO. CR 1 6 2 / 2 0 01 C A SE NO. CR 1 4 3 / 2 0 01 2 0 0 1 / 1 2 / 14 Silungwe, J ., Maritz, J. et Levy, A J. CRIMINAL PROCEDURE of sentences imprisonment - s.297(l)(b) of CPA - Criminal procedure competency of s u s p e n d ed imprisonment imposed in addition to fine with alternative of if substantive sentence is composite sentence of if fine and substantive sentence is only fine a nd s u s p e n d ed period to substantive sentences - line of recent review j u d g m e n ts to contrary not followed. - not competent imprisonment imprisonment - competent "added" of is - s.297(l)(b) of CPA Criminal procedure - purpose of s.297(l)(b) d i s c u s s ed - amelioration, not increase of sentence p a s s ed intended - u se of introducing in c a s es of compound s u s p e n s i on c l a u se sentences s u ch sentence. - not adding anything .." not further "plus term to C A SE NO. C R 1 6 2 / 2 0 01 C A SE NO. C R 1 4 3 / 2 0 01 IN T HE HIGH C O U RT OF NAMIBIA In the matters between: T HE S T A TE versus T E R M OS NVULA Accused HIGH C O U RT REVIEW C A SE NO. 9 8 8 / 2 0 01 T HE S T A TE versus A L F R ED A L B E RT OLIVIER Accused HIGH C O U RT REVIEW C A SE NO. 1 5 5 0 / 2 0 01 CORAM: SILUNGWE, J ., MARITZ, J. et LEVY, J. Heard on: 2 0 0 1 - 1 1 - 26 Delivered on: 2 0 0 1 - 1 2 - 14 J U D G M E NT MARITZ, J .: Only one i s s ue falls to be decided in these two reviews: the competency of a court to sentence a convicted a c c u s ed to payment of a fine (or in default, imprisonment) plus a further period of imprisonment wholly or partially s u s p e n d ed for s u ch period and s u ch conditions as are contemplated in s.297 (1) of the Criminal Procedure Act, 1977. The a c c u s ed in the Nvula-case w as convicted of the crime of indecent a s s a u lt a nd sentenced to N$3 0 0 0 . 00 or 15 months imprisonment plus a further 15 months imprisonment which were s u s p e n d ed in whole on condition that the a c c u s ed is not convicted of indecent a s s a u lt committed during the period of s u s p e n s i o n. The matter came before my sister, J u d ge Gibson, on automatic review. In r e s p o n se to her query about the severity of the sentence, the magistrate furnished r e a s o ns why the sentence w as appropriate in the circumstances but, in view of a number of recent review j u d g m e n ts dealing with the competency of courts to impose sentences in that form, requested that the 15-month s u s p e n d ed sentence be set aside. The sentence imposed in the Olivier-review for having stayed in Namibia beyond the permissible period endorsed in his p a s s p o rt in contravention of s. 29(5) of the Immigration Control Act, 1993, is similar in form: "N$2 5 0 0 . 00 fine of 12 months imprisonment, plus a further 12 months imprisonment s u s p e n d ed for 2 years on condition that the a c c u s ed is not convicted of a contravention of s.29(5) of Act 71 of 1993 committed during the period of suspension." When queried about the competency of the sentence, the magistrate agreed on the s a me b a s is as the one in the Nvula-review that the 12 month s u s p e n d ed sentence should be set aside. In both instances, the trial magistrates conceded their "error" on account of the ratio in a number of recent review j u d g m e n ts handed down by this Court. In those j u d g m e n ts it w as held that the imposition of a s u s p e n d ed sentence of imprisonment in addition to the imposition of a fine, conflicted with the provisions of s.297(l)(b) of the Criminal Code. The reviewing J u d g es in the two reviews under consideration, found themselves in respectful disagreement with that line of thought and, with leave of the acting J u d ge President, c a u s ed the i s s ue to be heard by the full Court. The full Court requested c o u n s e l s' a r g u m e n ts on the competency of the sentences in the reviews under consideration but also invited argument on the following illustrative e x a m p l es of sentences to stimulate both thought a nd debate on the i s s u e: "(a) 12 months imprisonment p l us a further 6 months imprisonment wholly s u s p e n d ed for a period of ... (b) N$ 1 0 0 0 - 00 fine or, in default of payment, 1 year (c) (d) imprisonment p l us a further N$ 6 0 0 - 00 or 6 months imprisonment wholly s u s p e n d ed for a period of ... N$ 1 0 0 0 - 00 fine or, in default of payment, 1-year imprisonment p l us a further 6 months imprisonment. N$ 1 0 0 0 - 00 fine or, in default of payment, 1 year imprisonment p l us a further 6 months imprisonment the whole of which imprisonment is s u s p e n d ed for a period of ... (e) N$ 1 0 0 0 - 00 fine or, in default of payment, 1 year imprisonment p l us a further 6 m o n t hs imprisonment, 3 months of which imprisonment are s u s p e n d ed for a period of... The Court is grateful for the s u b m i s s i o ns m a de by Ms Lategan (for the State) and Mr Maritz (who appeared amicus curiae). They submitted that the sentences in examples (a) and (b) are not competent under s.297(l)(b) of the Criminal Procedure Act, 1977, and, in our view, for good reason. The relevant provisions of section 2 97 r e a ds as follows: "(1) Where a court convicts a person of any offence, other than an offence in respect of which any law prescribes a minimum punishment, the court may in its discretion- l a )- (b) p a ss sentence but order the operation of the whole or any part thereof to be s u s p e n d ed for a period not exceeding five years on any condition referred to in p a r a g r a ph (a) (i) which the court may specify in the order; ..." The section empowers the court to s u s p e nd the whole or any part of a "sentence p a s s e d ". On a careful reading of the subsection, it is clear that what the Legislature intended, w as an amelioration of a sentence p a s s ed by authorising the s u s p e n s i on of the whole or any part thereof. It did not authorise the sentencing officer to increase the severity of the sentence p a s s ed by tacking on a further sentence a nd to s u s p e nd the latter wholly or in part. We are glad to note that it is also the view of Mullins, J in Sy Labuschagne and 19 Others, 1990 (1) SACR 313 (E) at 315/-g: "To revert to the provisions of s 297(1) (b) of the Criminal Procedure Act, there is also judicial authority for the aforementioned view that the s u s p e n d ed portion of a sentence is not an additional sentence tacked on to a substantive sentence, but that it m u st be 'part of s u ch substantive sentence. In other words, the sentence p a s s ed for a particular offence c o n s i s ts of both the u n s u s p e n d ed and the s u s p e n d ed portions thereof, and s u ch total sentence m u st not only be a competent sentence, but m u st be appropriate for the offence for which the offender is being punished." We also agree with the approach to sentencing proposed by him when the court contemplates a s u s p e n s i on of a sentence under section 297(l)(b): "The proper approach of a judicial officer faced with the determination of an appropriate sentence is firstly to consider the nature of the punishment imposed. In c a s u, he m u st decide whether the offence calls for a fine alone (with the alternative of imprisonment), or imprisonment alone, or both fine a nd imprisonment. S v Juta, 1988 (4) SA 9 26 (T) at 9 2 7 H. Having decided on the form of punishment, the magnitude of the fine or the length of imprisonment, or both, m u st be decided. I agree with the view of Van Reenen CJ in Juta's c a se s u p ra that the alternative period of imprisonment is the sanction which the Court regards as appropriate in the event of non-payment of the fine. Having determined both the appropriate form of sentence, and the magnitude thereof, the magistrate may decide to s u s p e nd part of the sentence. It would in my view, however, be improper to increase the appropriate sentence a nd to s u s p e nd s u ch increase merely in order to deter the offender from repeating his offence." (At 3 16 d-yj The s a me view, although differently expressed w as echoed by Schutz, JA in Sv Slabbert, 1998 (1) SACR 646 (SCA) at 6 4 8 d: "In a different context it h as been held that a s u s p e n d ed sentence is not something 'tacked on' to an u n s u s p e n d ed sentence. The s u s p e n d ed part is not to be viewed as if it will not be served. It is part of the whole sentence and it is the whole that should be appropriate, before consideration is given to s u s p e n s i on of a part." ( E m p h a s is added) A sentence formulated along the lines of the example in paragraph (a) supra is not competent for two r e a s o n s: It is contrary to section 297(l)(a) b e c a u se it aggravates the substantive sentence p a s s ed by impermissibly adding on a further sentence - albeit s u s p e n d ed (Compare, in addition to the authorities already cited: S v Z en Vier Ander Sake, 1999 (1) SACR (E) at 4341, S V Oosthuizen en 'n Ander, 1995 (1) SACR 3 71 (T) at 3 7 4 C, S v Allart, 1984 (2) SA 731 (T) at 734A, S v Olyn en Andere, 1990(2) SA 73 (NC), S v Setnoboko, 1981(3) SA 5 53 (O) at 5 5 6 E - F, S v Nangolo, 1995 NR 2 08 (HC) and the unreported j u d g m e n ts of this Court in Sy Simon Teister, CR 1 2 4 / 2 0 00 dated 29 November 2 0 00 and S v Petrus Tjoboa and Mathias Kadumwa, CR 1 8 / 2 0 01 dated 13 February 2001). It also a m o u n ts to an impermissible fragmentation of the s a me type of sentence for the purported attainment of differing sentencing objectives. This reason is p e r h a ps best illustrated by the words of Fieldsend, CJ in S v Wakiri, 1981(2) SA 5 27 (ZAD) at 5 2 9 F: "I do not regard it as the right approach to decide what effective imprisonment an a c c u s ed should undergo a nd then to add a s u s p e n d ed sentence with a view to d i s s u a d i ng him from further crime. The result of this latter course might be, if the d i s s u a s i on is not effective, that an a c c u s ed will have to serve a longer sentence for his offence than it really deserves b e c a u se he h as again fallen from grace." It is for the s a me r e a s o ns that the sentence in example (b) is also impermissible (See the unreported j u d g m e nt of this Court in Sy Gideon Xoagub, C a se No. CR 9 2 / 2 0 01 dated 23 May 2001). Turning to the sentence in example (c): It does not contain any s u s p e n s i ve provision but contemplates a compound sentence by combining of two types of punishment: a fine a nd a period of imprisonment without the option of a fine (see: s.276(l)(b)and (f) of the Criminal Procedure Act, 1977). There is no doubt that a sentencing officer may u se both those sentencing tools to tailor an appropriate sentence suitable for an offender in the c i r c u m s t a n c es of the c a s e. Virtually every penal provision in our statutes allows for the imposition of a fine or imprisonment "or both s u ch fine a nd imprisonment". Moreover, the imposition of s u ch a composite sentence is expressly contemplated in s. 287(1) of the Criminal Code: "Whenever a court convicts a person of any offence punishable by a fine (whether with or without any other direct or alternative punishment), it may, in imposing a fine upon s u ch person, impose, as a punishment alternative to s u ch fine, a sentence of imprisonment of any period within the limits of its jurisdiction: Provided that, subject to the provisions of subsection (3), the period of s u ch alternative sentence of imprisonment shall not, either alone or together with any period of imprisonment imposed as a direct punishment, exceed the longest period of imprisonment prescribed by any law as a punishment (whether direct or alternative) for s u ch offence." S u ch a composite sentence would, to mention only one example, be appropriate in c a s es where an a c c u s ed h as committed an "economical offence" (e.g. dealing in rough and u n c ut diamonds) a nd the court d e e ms in appropriate that he or s he should be punished in a like manner a n d, given the s e r i o u s n e ss of the offence, also be incarcerated for a period 6 months without the option of a fine. If a composite sentence is both permissible in law and appropriate in the circumstances of the c a s e, there is no reason in logic or in law why, in applying the approach earlier referred to on p 3 1 6 d - / of the Labuschagne- c a s e, is it suddenly impermissible to s u s p e nd the whole (example (d)) or part (example (e)) of the imprisonment contemplated in s u ch a compound sentence in terms of s.297(l)(b). S u ch a s u s p e n s i on does not a dd anything to the substantive composite sentence, it simply ameliorates the h a r s h n e ss thereof. Our law reports a b o u nd with examples of sentences imposed in that form. Of course, when the sentencing officer deems the imposition of a fine (e.g. N $l 0 0 0 . 00 or, in default of payment, one year imprisonment) as adequate punishment for the offence, the addition of any further s u s p e n d ed sentence to that substantive sentence will be impermissible - and it matters not whether the sentence tacked on in that instance is a further fine (example (b)) or a period of imprisonment wholly or partly s u s p e n d e d. The tacking on of s u ch an additional sentence to the substantive sentence will not be competent for the r e a s o ns already mentioned when d i s c u s s i ng examples (a) a nd (b). We m u st immediately acknowledge that a composite substantive sentence (of a fine a nd imprisonment) of which the period of imprisonment is wholly or partly s u s p e n d ed may read exactly the s a me as a substantive sentence of a fine with the impermissible addition of a period of imprisonment wholly or partly s u s p e n d e d: e.g. "N$ 1000-00 fine or, in default of payment, 1 year imprisonment p l us a further 6 months imprisonment, the whole of which imprisonment is s u s p e n d ed for a period of It s e e ms to us that the similarity in formulation of what is on the one hand a permissible sentence and on the other hand an impermissible one, may have been the c a u se of some confusion. What is not readily recognised is that the u se of the words "plus a further" or "and in addition" in the formulation of a compound sentence connect two different types of sentencing tools in one substantive sentence. They have no reference to a nd do not introduce the s u s p e n d ed part of the sentence - as they do when a further sentence is impermissibly tacked on to a substantive sentence. This Court, in a full bench j u d g m e nt handed down in the c a se of S v Nangolo, supra, recognised the difference between the addition of s u s p e n d ed sentences to a substantive sentence (such as in example (a)) and the s u s p e n s i on of part of a composite sentence when it said (per Frank, J at 210F-I): " B e c a u se of the problems that the u se of the words s u ch as 'plus' or 'in addition' can c a u se when they introduce the s u s p e n d ed portion of the sentence, they should be avoided. As pointed out they, prima facie, create the impression that a second a nd different sentence is imposed and where nothing a p p e a rs from the record to indicate that it w as not intended as an additional sentence but w as still part of the one composite sentence, an appeal court will be compelled to interfere herewith. It m u st be added in p a s s i ng that there is a whole array of statutory offences where the enabling legislation authorises s u ch sentences. The most common sentence that c o m es to mind is where the statute prescribes a fine or imprisonment or both s u ch fine a nd imprisonment. In s u ch a c a se it is clearly in order to impose a fine and in addition to that imprisonment. Here different considerations apply as the sentence would obviously not be ex facie problematical." (Our underlining) Whether a sentence imposed in s u ch a form is competent or not, m u st therefore be determined in the c i r c u m s t a n c es of each c a s e, bearing in mind what the sentencing officer intended as a suitable substantive sentence for the offender. What is clear though, is that a composite sentence of a fine and imprisonment of which the whole or part of the imprisonment is s u s p e n d e d, is not per se impermissible as the unreported review j u d g m e n ts of this Court in S v Sydney Hendricks (Case No. CR 8 5 / 2 0 01 dated 9 May 2001), S v Manfred Baby Tjiho (Case No. C R 1 0 9 / 2 0 01 dated 2 J u ly 2001) a nd others seem to s u g g e st or, at least, are being understood by the m a g i s t r a t es involved in these two reviews when they conceded their "error". The reasoning in those two unreported review c a s es a p p e a rs to be founded on an incorrect understanding of the Labuschagne-ca.se: it loses sight of the fact that Mullins, J expressly contemplated (at 3 1 6 d - / of that judgment) that a sentence in the "appropriate form" that may be s u s p e n d ed in whole or in part, includes a compound sentence of both a fine and imprisonment. A useful guide that l e ss experienced sentencing officers may apply to ensure that a s u s p e n d ed sentence is framed a nd imposed in a competent manner is, firstly to write down the sentence that he or she d e e ms appropriate in the circumstances of the c a se and to a s s e ss if that sentence (whether compound or not) is authorised under the applicable legislation or in common law. Only if he or she is satisfied that it is a nd it is appropriate to s u s p e nd the whole or any part thereof, to do so (without adding any further sentence) for the period and on the conditions contemplated in s . 2 97 (l)(b) of the Criminal Procedure Act, 1977. It is apparent to us that the form of the substantive sentence which the magistrates deemed appropriate in the c i r c u m s t a n c es was that of a compound sentence of which a part w as s u s p e n d e d. There is no suggestion that they intended to a dd a further sentence to the substantive composite sentences when they s u s p e n d ed part thereof. Furthermore, having considered the r e a s o ns advanced by them, we are also satisfied about the adequacy of the sentences. In the result, the sentences in both reviews are confirmed. M A R I T Z , ^. I agree. SILUNGWE, J. I agree.