1
REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
In the matter between: Case no: A172/2011
PAULUS HENOCKAPPLICANT
and
THE ATTORNEY GENERALFIRST RESPONDENT
THE PROSECUTOR GENERALSECOND RESPONDENT
THE GOVERNMENT OF THE REPUBLIC
OF NAMIBIATHIRD RESPONDENT
Neutral citation:Henockv The Attorney General(A172/2011) [2014] NAHCMD366 (27November2014)
Coram:GEIER J
Heard:29January 2014
Delivered:27November 2014
Flynote:Constitutional law - Fundamental rights - Cruel inhuman or degrading treatment in terms of art 8(2)(b) of Constitution – Right to equality Article 10(1) Whether minimum sentence of imprisonment for importing, supplying or possessing armaments in terms of s 29(1)(a) Arms and Ammunition Act 7 of 1996 unconstitutional - Minimum sentence provision not found unconstitutional.
Summary: The accused had been convicted of a contravention of s 29(1)(a) of the Arms and Ammunition Act 7 of 1996. He had been sentenced to 2 years in terms of s 38(2)(a) of the Act. Applicant challenging the constitutionality of the remaining sentencing provision after the court in S v Likuwa had struck down the then applicable minimum sentence of 10 years in s 38(2)(a) as unconstitutional. The question now was whether the remaining s 38(2)(a) was unconstitutional, in that such remaining minimum sentence still constituted cruel, inhuman or degrading treatment in breach of art 8(2) of the Constitution and was in violation of art 10 which provided for equality before the law.
The court held that the court in Likuwa had by implication already determined that the remaining minimum sentence provision was not unconstitutional or in conflict with articles 8 and 10.
The Court held that in any event the remaining mandatory imprisonment provision of the Act was not unconstitutional in that it did not infringe on the applicant’s article 8 and 10 rights as
a)The wide scope of imprisonment options – ranging from detention to the rising of the court, via the further minimum of 4 days imprisonment up to the maximum period of imprisonment for 25 years demonstrated that the court can recognize the individual circumstances pertaining to any contravention of the section with regard to Section 284 of the Criminal Procedure Act 1977.
b)the courts are still able to recognize and distinguish - through the proper evaluation of evidence presented in mitigation - between less serious offences of possession and distinguish them from more serious offences of possession, when imposing an appropriate sentence’. The court thus still in the position to appropriately ameliorate or aggravate the mandatory prison sentence, depending on the circumstances serving before it.
Held : that he cumulative effect of various factors indicated, that the sentencing benchmark, left in the statute, after Likuwa, had not been left too high so as to result in a situation where the obligatory regard to the minimum sentence would result in shocking and disproportionate sentences in violation of Article 8 (2)(b) of the Constitution as any sentencing court remained in the position, to make an appropriate distinction, per case, when imposing any sentence under the act.
Held : that it was precisely because of the scope of sentencing options still available, which scope was wide enough to accommodate the individual circumstances of any particular case - and also because of all the other considerationsrelevant to sentencing being in place - that accused persons charged, convicted and sentenced under the Act - after due process - would not just simply be ‘sacrificed on the altar of deterrence’.
Held : that the prescribed minimum sentence in the Arms and Ammunition Act did not exhibit an undueproportionality to the seriousness of the offence, or that it caused an improper gradation of punishments according to the malignity of the offences.
Held : that the attack based on the provisions of Article 8 of the Constitution could therefore not succeed.
Held : the equality provision of the Constitution was also not infringed as the Act does not impermissibly ‘single out offenders, convicted of possession armaments, for particularly severe and harsh punishments, which are wholly out of kilter with the punishments meted out to the perpetrators of other crimes and as the minimum sentencing regime left after Likuwa does not offend against the principle that there should be a fair ‘gradation of punishments according to the malignity of the offences’.
Held : that the promulgation of the Act had indeed resulted in the differentiation between persons facing criminal prosecution for crimes in respect of which no minimum sentence is prescribed and those which face criminal prosecution in respect of crimes where the law prescribes a minimum sentence.
Held : As the aim and object of the statute - as well as the purposes - for enacting same – all served a legitimate goal - and as the resultant differentiation - caused by the act between the aforesaid categories of persons - was rationally connected to the proclaimed purposes for which the enactment was made it had to be concluded that the aforementioned differentiation caused by the prescribed minimum sentence set by the Arms & Ammunition Act was also not in breach of Article 10(1) of the Constitution.
Application was accordingly dismissed with costs
ORDER
- The application is dismissed with costs.
JUDGMENT
GEIERJ:
[1]The applicant has taken aimat the penal section of the Arms and Ammunition Act, Act 7 of 1996. He does so by attacking the minimum sentence prescribed by section 38(2)(a) via the medium of article 25(1) of the Namibian Constitution.
[2]He contends that the mandatory imprisonment sentence prescribed by the Arms and Ammunition Act violates the prohibition of cruel, inhuman or degrading punishment set in article8(2)(b) and the guarantee of equality prescribed by article10(1) of the Namibian Constitution.
[3]The respondents oppose this application, but only the Prosecutor-General (i.e. the second respondent) filed answering affidavits in support of such opposition.
[4]The second respondent in turn contends that the mandatory imprisonment set by the section is constitutional.
THE BACKGROUND FACTS
[5]The background facts to this application are summarised by applicant’s counsel as follows:
5.1On 25 June 2009, the applicant was convicted of possession of a machine gun, which is a criminal offence under section 29(1)(a) of the Arms and Ammunition Act. It is apparent from the record of the trial court that the applicant pleaded guilty to the charge.
5.2He was then sentenced to a period of imprisonment of 2 years.
5.3The applicable sentencing regime is prescribed by section 38(2)(a) of the Arms and Ammunition Act 1996. The firearm was then also forfeited to the State – a course of action permitted by section 10(6) of the said Act.
5.4The applicant appealed against his sentence only. However, his appeal has been held in abeyance pending the outcome of this application. He has been on bail pending the appeal.
5.5The applicant is a first offender of 40 years of age with 5 children, who are all his dependents. At the time of launching this application, he was the sole breadwinner.
5.6The applicant is a truck driver and a part- time farmer in a communal area, where which he generates an additional income to supplement his income as a truck driver.
5.7The firearm, which was in his possession and for which he was convicted and sentenced, was allegedly for the purposes of protecting his farming activities.
THE CONSTITUTIONAL CHALLENGE
Article8(2)(b)
[6]Mr Tjombe, counsel for the applicant,in his written heads of argument, submitted that section 38(2)(a) of the Arms and Ammunition Act is unconstitutional for the following reasons:
‘6.1The imprisonment sentence regime imposed by section 38(2)(a), performs a dual function. It firstly obliges the courts to impose a term of imprisonment as a sentence regardless of any circumstances and or factors that may justify a sentence other than imprisonment. Unlike the sentencing regimes under the Combating of Rape Act and the Stock Theft Act, which also obligates minimum imprisonment sentences (and for which the offences created thereunder are in his opinion by far more serious than the offences created under the Arms and Ammunition Act), no provision is made for the courts to consider substantial and compelling circumstances to deviate from the minimum sentence of a term of imprisonment.
6.2By compelling direct imprisonment as a sentence, the sentencing regime creates a new benchmark for the determination of lengthy imprisonment sentenceswhen there are circumstances which justify a departure from the direct imprisonment. For instance, it will be difficult (if not impossible) for a sentencing court to sentence an offender to 3 days imprisonment simply because that court found factors present would have justified the imposition of a wholly suspended imprisonment sentence or a fine.This will make a mockery of the statute and the courts duties thereunder. Accordingly, it will be more likely than not that offenders are sentenced to lengthy periods of imprisonment, despite the presence of circumstances which calls for the option of a fine or wholly suspended sentence (with the normal conditions).
6.3Because of the provisions of section 38(4) of the Arms and Ammunition Act, which prohibits the application of section 297 of the Criminal Procedure Act, a sentence imposed under section 38(2)(a) or a portion of such sentence cannot be suspended, unless the offender is under the age of 18 years.[1]
6.4Both the minimum sentence itself and the benchmark it creates, require the courts to impose sentences which are cruel, inhuman or degrading within the meaning of article 8(2)(b) of the Namibian Constitution. This is so because the sentence is grossly disproportionate to the offence for which it is prescribed. It is “shocking” in the sense that it is “so clearly excessive that no reasonable man would have imposed” it.
6.5The minimum sentence and the benchmark it imposes, also violates the guarantee of equality in article 10(1) of the Constitution. It do so because it single out the offences to which it applies for harsh punishmentwhich is wholly out of kilter with the sentencing regime which applies to other offences which are equally or immeasurably more serious. This differentiation is irrational - and thus violates the guarantee of equality before the law.
ANALYSIS OF THE MINIMUM SENTENCES
The offences to which they apply
[7]He then embarked on an analysis of the minimum sentences prescribed by section 38(2)(a), which he paraphrased as follows:
a)In terms of section 29(1)(a) of the Arms and Ammunition Act, the offence is committed when possessing any cannon, recoilless gun or mortar, rocket launcher, machine gun or machine rifle or any similar armament, or any part including a magazine, frame or body thereof.
b) The regime imposed by section 38(2)(a), prescribes direct imprisonment for all these offences. All of them are caught in the net created by the section. It prescribes imprisonment for all of them.
c)Even persons convicted of the offence of possession of a part of a machine gun, say the coil, or the stock, or the sight[2] of a machine gun, are caught in the sweep of section 38(2)(a) and are therefore liable to be sentenced to a period of imprisonment. It is regardless of the fact that the part of the firearm (e.g. the frame) being unusable and served no threat to life, limb or property.
d)First offenders are not spared.
e)Arguably, the unauthorisedimportation and the supply of the armaments enumerated in section 29(1)(a) are more serious offences than the possession of armaments. However, when imposing an appropriate sentence, no distinction is made between such offenders in relation to imprisonment.
[8]He then argued that:
‘ …the section proceeds from the premise that a custodial sentence of imprisonment is appropriate for first offenders guilty of possession of armaments, however trivial their offence might be and that the section does not distinguish between the isolated case of possession of an armament (or some insignificant or unusable part of it)[3] on the one hand and the possession of several weapons with which war could be waged[4] on the other. It prescribes the same imprisonment sentence for all of them.
The section prescribes imprisonment as the only sentence. It means that the only way in which the courts can implement a system of fair gradation of sentences commensurate with the severity of the possession for which they are imposed, is to impose imprisonment as a sentence for the less serious offences and even lengthier imprisonment sentences for the more serious offences. The courts are unable to recognise, through the careful evaluation of evidence presented in mitigation of less serious offences of possession and distinguish them from more serious offences of possession, when imposing an appropriate sentence. A lesser offence might invite a fine (and on failure to pay the fine, an appropriate term of imprisonment) or a wholly suspended sentence, whilst a more serious offence would justify imprisonment without the option of a fine.The court may thus not ameliorate the prison sentence by suspending it or any part of it. Section 38(4) provides that the minimum sentence may not be suspended at all as long as the offender is 18 years or older.[5]
The implication of these features is that a person, who keeps a non-functional magazine or sight of a machine gun, is subject to a minimum sentence of imprisonment in the same manner than a person who is convicted a more serious offence of importation or supply of a rocket launcher or a cannon.’
Other factors left out of account
[9]He then pointed out that as section 38(2) prescribes imprisonment as a mandatory sentence for everybody convicted of possession of a firearm no other factors relating to the seriousness of the crime, the personal circumstances of the accused or the interests of society are taken into account.
[10]According to counsel there were further factors which, would normally have a bearing on an appropriate sentence but which are disregarded by the regime created by section 38(2)(a). He put it thus:
‘(a)The first is the type of armament involved. As appears from section 29(1)(a) the illegal possession includes a wide range of armaments and even the parts of the armament of any of them. Their monetary value, their ability0 to be used in crime and the type of crime for which they maybe used, must vary enormously from case to case. Section 38(2)(a) however generalises about all of them without distinction.
(b)The section also ignores the age of the accused. It applies to juveniles and adults alike. The only concession made to juveniles, is that section 38(4), read with section 297 of the Criminal Procedure Act, allows the court to suspend the imprisonment sentence if the offender is under 18 years of age. This concession highlights the fact that the legislature applied its mind to the application of the prison sentencing regime to juveniles and intended it to apply to them, subject only to that concession.
(c)The implication is that even a juvenile who possesses an item of armament, has to be sentenced to a term of imprisonment, however useless the item in illegal possession might be. The youthful offender is subject to the same imprisonment sentence regime as members of a hardened rebel group who possess a variety of weapons in an organised fashion for intended crime.’
The effect of S v Likuwa
[11]The court was then referred to S v Likuwa[6]which ameliorated the sentencing regime to some extent. Counsel dealt with this aspect as follows:
‘The original section 38(2)(a) read as follows:
“Subject to the provisions of this section, any person convicted of an offence under this Act shall be liable –
a)in the case of a contravention of s 29(1)(a), (b) or (c), to imprisonment for a period of not less than 10 years, but not exceeding 25 years.” (underlining provided)
Justice Hannah (with Justices Mtambanengwe J and Mainga AJ (as he then was) (concurring), declared the minimum sentence of 10 years unconstitutional by reading the section down and by striking out the words:“of not less than 10 years, but” …’.
As a result of the order in Likuwathe mandatory minimum sentence of 10 years no longer exists. However, a term of imprisonment must still result after conviction of possession of an armament. This provision does not vest the court with its ordinary sentencing discretion. The court has no discretion at all to depart from imprisonment as a sentence, when the evidence so suggests. The courts are more likely to impose an imprisonment sentence of some months (or years, as is with the instant matter), because the sentence it imposes must have regard to the benchmark set by the sentence regime, which is imprisonment. The presence of substantial and compelling circumstances does not matter. The courts’ discretion is fettered.
[12]The court was then referred to the South African Constitutional Court case ofCentre for Child Law,[7]where the court had more recently confirmed,in a slightly different context, that the minimum sentence regime fetters the court’s sentencing discretion even when a court would find substantial and compelling circumstances to exist:
“The very nature of minimum sentences is to diminish the courts’ power of individuation by constraining their discretion in the sentencing process. The Supreme Court of Appeal in Vilakazi has recently emphasized that under Malgas and Dodo ‘disproportionate sentences are not to be imposed and that courts are not vehicles for injustice’. Nevertheless, in its very essence the minimum sentencing regime makes for tougher and longer sentences. While the hands of the sentencing courts are not bound, they are at least loosely fettered. As this court noted in Dodo, the very object of the regime is to ‘ensure that consistently heavier sentences are imposed’”.[8]
[13]Reliance was then placed on the most recent similar matter of Daniel v Attorney General and Others; Daniel v Attorney General and Others; Peter v Attorney General and Others,[9]where the full-bench of the High Court commented on the sentencing benchmarks set by the Stock Theft Act that:
“It becomes clear that any appropriate lesser sentence imposed in such circumstances can therefore never be divorced entirely from the minimum sentences ordained by the legislature. If this obligatory regard to - and mandatory linking of an appropriate lesser sentence to the benchmark set by the minimum sentencing regime nevertheless results in a 'shocking' or 'disproportionate' sentence', a violation of an accused's Article 8 right would have occurred. While it is accepted that all this is relative, as this ultimately depends on how high the benchmark has been set, it does not take much to imagine that a violation of the Article 8 rights of accused persons, with respect to 'hypothetical cases which can be foreseen as likely to arise commonly', will occur, if the benchmark in question, were set too high. Mr Coleman, fairly and correctly, in my view, conceded this possibility, when this was put to him by the Court.”[10] (original footnotes references omitted)