REPRORTABLE
CASE NO.: CR 78/2009
IN THE HIGH COURT OF NAMIBIA
In the matter between:
THE STATE
and
MATHEUS BYL
HIGH COURT REVIEW CASE NO.: 637/2006
CORAM:
HOFF, J et SILUNGWE, AJ
Delivered on:
2009.08.17
REVIEW JUDGMENT
HOFF, J:
[1]
The accused has been convicted in the magistrate’s court
held at Mariental for the offences of contravening section 80(1) of Act 22 of
1999 (negligent driving); contravening section 78 (1)(f) of Act 22 of 1999 (failing
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to report an accident within 24 hours); and contravening section 83(2) of Act
22 of 1999 (driving a motor vehicle without the consent of the owner).
[2]
The first two counts were taken together for purpose of sentence and the
accused was sentenced to a fine of two thousand Namibian dollars or six
months imprisonment which were wholly suspended for a period of five years
on condition that the accused is not convicted of contravening section 81(1) or
78 (1)(f) of Act 22 of 1999 committed within the period of suspension.
Reference to section 81(1) is erroneous and should read section 80(1).
In respect of the third count the accused was sentenced to a fine of four
thousand Namibian dollars or two years imprisonment of which two thousand
Namibian dollars or one year imprisonment was suspended for a period of five
years on condition that the accused is not convicted of a crime of contravening
section 83(2) of Act 22 of 1999 committed within the period of suspension.
[3]
I directed the following query to the magistrate: “Why have you taken the
provisions in respect of two separate statutory provisions together for purpose of
sentence” ?
[4]
The magistrate replied that the two convictions (count 1 and count 2)
were closely connected and were the result of one event, “similar in point of time
and seriousness”.
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She however added that after receiving the query she realized that “it has been
stated in several authorities that counts should be taken together for purpose of
sentence in exceptional cases only, since it is desirable that each separate crime
should be punished separately …”
[5]
It is common cause that the accused who was not the holder of a valid
driver’s licence drove the motor vehicle without the consent of the lawful owner
in an effort to improve his “driving skills”. It is clear that he had very limited
“driving skills” since he lost control of the motor vehicle and collided with a
barrier next to the road. The nearest police station was approximately 10 km
from the scene of the accident. The accused never reported the accident for
fear that the police may discover that he had no valid driver’s licence. He ran
away from the scene of the accident and went to hide in a maize field where he
stayed until he was arrested two days later.
[6]
I cannot agree with the magistrate that the two counts were the result of
one event “similar in point of time”. The first count relates to the commission of
an offence i.e. the driving of a motor vehicle in a negligent manner and the
second count related to an omission i.e. the failure to report an accident within
24 hours.
[7]
In S v Mostert, S v De Koter 1995 NR 131 (a Full Bench decision of this
Court) Frank J stated the following at 132 H:
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“The Hayman decision sets out a salutary rule which adds to the reasons why cases
should be taken together for purposes of sentencing only in exceptional cases even where
the offences are similar or closely connected. Composite sentences present problems on
appeal and on review. Furthermore, it is desirable that separate crimes be punished
separately.”
[8]
The reasons why counts may be taken together for purpose of sentence
only in exceptional circumstances were summarised by Trollip JA in the case of
S v Young 1977 (1) SA 602 (A) where the following appears at 728 E – H:
“Where multiple counts are closely connected or similar in point of time, nature,
serioussnesss, or otherwise, it is sometimes a useful, practical way of ensuring that the
punishment imposed is not unnecessarily duplicated or its cumulative effect is not too
harsh on the accused. But according to several decisions by the Provincial Divisions (see
e.g. S v Nkoso 1965 (2) SA 414 (C) where the authorities are collected) the practice is
undesirable and should only be adopted by lower courts in exceptional circumstances.
The main reason for frowning upon the practice mentioned in the cases is the difficulty it
might create on appeal or review, especially if the convictions on some but not all of the
offences were set aside.
As any sentence imposed by this Court is definitive, that
objection to the practice is, of course, not applicable. However in the present case I think
it conduces to clearer thinking in determining the appropriate sentences to treat each
offence separately. Moreover, no risk of duplication of punishment thereby arises for each
offence is sufficiently distinct, different and serious;
and in the ultimate result the
cumulative effect of all the sentences imposed can be otherwise suitably controlled to
avoid undue harshness to the appellant.”
[9]
In S v Immelman 1978 (3) SA 726 (AD) Corbett JA at 728 H – 729 A
expressed the view that the “difficulty can also be caused on appeal by the
imposition of a globular sentence in respect of dissimilar offences of disparate
gravity. The problem that may then confront the Court of appeal is to determine
how the trial Court assessed the seriousness of each offence and what moved it
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to impose the sentence which it did. The globular sentence tends to obscure
this.”
(See also S v Mwebo 1990 NR 27(HC); S v Katjire 2005 NR 429 (HC).
[10]
For the reasons mentioned (supra) the globular sentence imposed in
respect of counts 1 and 2 cannot be allowed to stand.
[11]
In the result the following order is made:
1.
The conviction in respect of counts 1, 2 and 3 are confirmed.
2.
The sentence in respect of count 3 is confirmed.
3.
The composite sentence imposed in respect of counts 1 and 2 is set
aside and substituted with the following sentences:
In respect of count 1:
The accused is sentenced to a fine of N$2 000.00 or 6 months
imprisonments which are suspend in toto for a period of 5 years on
condition that the accused is not convicted of contravening section
80(1) of Act 22 of 1999 committed during the period of suspension.
In respect of count 2:
The accused is sentenced to a fine of N$2 000.00 or 6 months
imprisonment which are suspended in toto for a period of 5 years
on condition that the accused is not convicted of contravening
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section 78(1)(f) of Act 22 of 1999 committed during the period of
suspension.
__________
HOFF, J
I agree
________________
SILUNGWE, AJ