S v Vries (1) (CRIMINAL 32 of 1996) [1996] NAHC 53 (19 June 1996)

S v Vries (1) (CRIMINAL 32 of 1996) [1996] NAHC 53 (19 June 1996)

Section 14(1)(b) of the Stock Theft Act is unconstitutional to the extent that it requires a minimum sentence of three years' imprisonment for a second or subsequent conviction, as this is grossly disproportionate and likely to result in sentences that no reasonable person would impose in cases that commonly arise. The provision is down-read to remove the minimum sentence requirement, leaving sentencing to judicial discretion subject to the prohibition on suspension in section 14(2).

Citation
[1996] NAHC 53
Parties
Prosecution: The State; Accused: Stephanus Vries
Court
High Court
Jurisdiction
Namibia
Judgment Date
19 June 1996
Case Number
CRIMINAL 32 of 1996
Procedural Posture
Criminal / Judgment on Constitutionality of Statutory Minimum Sentence on Review
Outcome
Section 14(1)(b) of the Stock Theft Act is down-read; the minimum sentence requirement is struck out as unconstitutional. The sentence imposed by the magistrate is set aside and substituted with six months' imprisonment.
Legal Topics
Minimum Mandatory Sentences, Cruel, Inhuman or Degrading Punishment, Stock Theft Act, Sentencing Discretion, Constitutional Exemption
Source Language
English
Constitutional Law Criminal Law Minimum Mandatory Sentences Cruel, Inhuman or Degrading Punishment Stock Theft Act Sentencing Discretion Constitutional Exemption

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Parties

The State

Prosecution

Stephanus Vries

Accused

Procedural Posture

Criminal / Judgment on Constitutionality of Statutory Minimum Sentence on Review

Legal Issues

  1. 1 Whether the minimum mandatory sentence under section 14(1)(b) of the Stock Theft Act is unconstitutional as cruel, inhuman or degrading punishment under Article 8(2)(b) of the Constitution
  2. 2 Whether minimum sentences are per se unconstitutional
  3. 3 Appropriate remedy if the provision is unconstitutional

Ratio Decidendi

Section 14(1)(b) of the Stock Theft Act is unconstitutional to the extent that it requires a minimum sentence of three years' imprisonment for a second or subsequent conviction, as this is grossly disproportionate and likely to result in sentences that no reasonable person would impose in cases that commonly arise. The provision is down-read to remove the minimum sentence requirement, leaving sentencing to judicial discretion subject to the prohibition on suspension in section 14(2).

Court Disposition

Section 14(1)(b) of the Stock Theft Act is down-read; the minimum sentence requirement is struck out as unconstitutional. The sentence imposed by the magistrate is set aside and substituted with six months' imprisonment.

Orders

  • The words 'of not less than three years, but' are struck out from section 14(1)(b) of the Stock Theft Act, Act no. 12 of 1990 as being in conflict with Article 8(2)(b) of the Constitution.
  • The sentence imposed by the magistrate is set aside and substituted with one of six (6) months imprisonment.