- November 7, 2022
- |Concise Law Reports (CLR), Criminal Law And Procedure
CRIMINAL PROCEDURE – APPEAL AGAINST CONVICTION; APPEAL AGAINST SETENCE – TRIAD FACTORS CONSIDERED;
LEGAL REPRESENTATION – SEQUENCE OF EXPLANATION OF RIGHTS; DOCKET DISCLOSURE – FAILIURE BY COURT A QUO TO INFORM APPELLANTS OF RIGHTS; FINES – APPLICABLE GUIDELINES
The appellants appeared in the Rundu Magistrate’s Court on charges of contravening section 4 (1)(d) read together with sections 1, 4 (2)(b), 8, 9, 12, 13 and 14 of the Controlled Wildlife Products and Trade Act No. 9 of 2008, as amended (hereinafter referred to as ‘the Act’) – Importing anything from a Controlled Wildlife Product, the import of which is unlawful in terms of Schedule 1 of the Act (count 1) and contravening section 4 (b)(i) and (ii) read with sections 1, 11 and 97 of the Prevention of Organized Crime Act No. 29 of 2004 – Disguising unlawful origin of property (count 2). They pleaded guilty to the charges preferred against them and after their conviction, were sentenced to pay a fine of N$ 400 000 or 4 (four) years’ imprisonment on each count.
The appeal is founded on four grounds which amount to the court a quo’s failure to adequately explain to the appellants their rights to legal representation; failure to explain to the appellants their rights to have copies of the docket disclosures and the charge sheet; failure to make use of an interpreter to translate the proceedings to the language which the appellants are conversant in (Portuguese); and that the sentence imposed is harsh, excessive and startlingly inappropriate and induces a sense of shock. The respondent opposed the appeal.
LIEBENBERG J (USIKU J concurring) considered the appeal and held that:
- The record of proceedings on both dates makes plain that the appellants were duly informed of their right to legal representation, with the accompanying explanation as to how to exercise these rights. The fact that the court on the second occasion changed the sequence in which these rights were explained does not derogate from the effectiveness of the explanation and neither does it appear to be ‘bizarre’ as, contended by the appellants.
- The court a quo’s failure to inform the appellants of their right to disclosure of statements the state intends relying on to prove its case, constitutes an irregularity. The impact of the irregularity needs to be decided on the facts and circumstances of the case.
- Despite the court a quo’s omission to inform the unrepresented appellants of their right to disclosure, the appellants were not prejudiced as a result thereof as, from the onset, they intended pleading guilty.
- It is not essential to the charge in count 1 to name the country i.e., Namibia, neither from which country the controlled wildlife products were brought in.
- Held further that the manner in which the charges were drawn sufficiently informed the appellants of the case they had to meet and that they took an informed decision when pleading guilty.
- There is no merit in the contention that the trial court did not take into account the personal circumstances of the appellants as complained of. However, insufficient weight was accorded to the fact that the appellants were first offenders who pleaded guilty.
- Held furthermore that the court a quo failed to give the necessary weight to their personal circumstances which, consequently, resulted in the court over-emphasising the seriousness of the offence and the interests of society.
- The applicable guidelines regarding fines have not been followed by the court a quo.
- Held further that the court a quo ignored the circumstances of appellants’ inability to pay a fine. Hence, sentences imposed startlingly inappropriate.
As a result, the appeal against conviction in respect of both appellants was dismissed. The appeal against sentence in respect of both appellants was upheld and the sentences imposed by the court a quo was set aside and substituted with the following: Each accused sentenced to: –
Count 1: Three (3) years’ imprisonment.
Count 2: Two (2) years’ imprisonment.
It was ordered in terms of section 280(2) of the CPA that the one (1) year of sentence imposed on count 2 to be served concurrently with the sentence imposed on count 1. The sentences were antedated to 12 April 2022.
Mukwangu v S NAHCMD 7 November 2022