IN THE HIGH COURT OF NAMIBIA

HELD AT OSHAKATI

NATANGWE MARTIN MUAHAFA					APPELLANT

and
THE STATE								RESPONDENT

Heard on: 	07.03.2011 Delivered on:  	11.03.2011

APPEAL JUDGMENT

[2] Although respondent in its heads of argument contends that appellant was admitted to bail pending the appeal, there is nothing on record showing that it is indeed the position. However, when the appeal was heard, it was confirmed that appellant was not in custody; but admitted to bail pending appeal.

[3] The trial was finalised with appellant sentenced on 14 May 2009 to five years' imprisonment. Although the date on which the Notice of Appeal was drawn is 19 May 2009, the only date stamp appearing on the said notice is that of the Registrar of the High Court, dated 15 December 2010. It is not clear why the notice was filed with this Court and not with the clerk of court, as required by the rules of the Magistrates' Court (Rule 67 (1)), and whether this was merely an erroneous duplicate filing. Be it as it may, the notice should have been filed with the clerk of the court, together with the power of attorney, even before an application for bail, pending appeal, could be entertained. Although there is no documentary proof that the notice of appeal was filed within the time frame of fourteen days, as required by the rules; and the respondent not taking issue with that, I shall, for purposes of the appeal, accept that to have been the position.

[4] The grounds of appeal raised in the Notice of Appeal are: The sentence is disturbingly inappropriate and induces a sense of shock; the magistrate failed to take into account appellant's personal circumstances; and instead, over-emphasised the seriousness of the offence vis-a-vis the mitigating factors.
[5] The presiding magistrate in his additional reasons expressed the view that the sentence was proper and did not induce a sense of shock; and, even though appellant was a first offender, it did not mean that direct imprisonment could not be imposed. Furthermore, that appellant should have given thought to his children before he committed the offence; that he was not married to the complainant and therefore could not have claimed her fidelity; and lastly, that appellant was dismissed from his employment as a result of the sentence imposed.

[6] The prosecution called two witnesses namely, the complainant Fiena Tuyeni and Gotlieb Binge, an eye witness. The appellant testified in his defence. Briefly the evidence adduced at the trial can be summarised in the following terms:

It is common cause that appellant and the complainant were both in the military and based at Oshivelo army base. That, they had an ongoing relationship prior to the night of the incident; during which accusations of infidelity were flung at the complainant (by the appellant), who had just returned from Windhoek. This culminated in a vicious attack on the complainant, during which she was slapped and hit several times on her head and body with handles of a mop and a rake, respectively. Complainant testified that the moment appellant entered her room, situated in the barracks; he locked the door behind him and started accusing her of infidelity. He then slapped her once on the cheek and pushed the television (from its stand) onto the floor. He broke the mop and used the handle to hit the complainant thrice on the head, causing open wounds, from which she bled, covering her face in blood. After crushing a DVD he continued assaulting her all over her body with the rake handle during which she lost one of her front teeth. She tried to shelter herself by going into a locker, but apparently without much success. It seems that complainant lost consciousness at that stage, as she only afterwards realised that she also sustained injuries on her legs and open wounds on her face. She was subsequently admitted to hospital where the wounds were sutured. She was left with a scar on the face and several marks ('scars') on her thighs.

[7] The medical examination report handed into evidence by agreement, was, for reasons unknown, compiled only after ten days by Dr. Sefu. The gist of the report is that there were bruises and abrasions on the right arm, right thigh, right side of the neck, and the back. There were three open wounds; all sutured i.e. two on the scalp, one below the right eye, and one on the left forearm. The right eye was still swollen whilst one tooth on the upper jaw was missing.

[9] According to the appellant he caught the complainant in the act of having sexual intercourse with an unknown man. When complainant later on opened the door, this person came out and ran away. He confronted her and she asked for his forgiveness. As he was about to leave the room she pulled him on the arm, causing him to fall onto the bed. He said he then lost his temper and slapped her, causing her to knock her head against the wall. He confirmed hitting her with a broomstick. He explained that the television and DVD broke when complainant pushed him; whereafter he fell, breaking it in the process. He admitted having beaten complainant on her buttocks with the broomstick; also that he was told by both Mr. Binge and Warrant Officer Shivute, from the Namibian Police, to stop doing so.

[10] Judging from the State witnesses' evidence and specifically the injuries inflicted with a broom/mop handle as noted on the medical examination report, it is evident that complainant was subjected to a brutal and vicious attack. Complainant lost consciousness during the assault and testified that she vomited and 'had to use the toilet'. She was left with a permanent scar below her eye and marks on her legs.

[13] There can be no doubt that the assault falls in the category of cases that can be described as serious. Appellant made use of a broomstick/mop handle to hit the complainant with, all over her body. A fair number of these blows were directed at the head, causing open wounds and her bleeding from her head. Despite complainant's cries for help and her telling the appellant that she had lost a tooth, he persisted. The magistrate's opinion, that the assault could have been fatal, is not without merit. This Court frequently tries cases in which the victims were subjected to similar and even lesser degrees of assaults, with fatal consequences. The fact that complainant lost consciousness under the attack, could be indicative of the severity thereof; whilst her being nauseous, a sign that she was in shock. Aggravating factors are: that complainant was completely defenceless and no threat to the appellant; it was a protracted and unprovoked assault in which appellant persisted, despite being told to stop; he made use of a weapon which inflicted serious injury, leaving complainant with permanent scars on her face and body.

In my view, there is nothing showing that the magistrate failed to take into consideration the personal circumstances of the appellant, and the appeal cannot succeed on that ground.

[20] It is trite that punishment falls within the ambit of the discretion of the trial court and that a Court of Appeal should not readily interfere unless there is good cause; and there will be good cause where the sentence is vitiated by irregularity or misdirection or, where the sentence imposed is disturbingly inappropriate and induced a sense of shock. To come to such conclusion, the Court must be satisfied that the sentencing court did not exercise its discretion, regarding sentence, judicially.

(direct) imprisonment (on a similar charge) with a totally suspended sentence. The Court in that instance found that the assault was not serious - unlike the Court's finding in the present case. Mindful of the fact that a wholly suspended sentence is also viewed to be a deterrent sentence hanging over the offender's head, I do not find the present case to be an instance where a wholly suspended sentence would be justified; reflecting that a proper balance was struck between the interests of the appellant and that of society. I believe justice dictates that the sentence to be imposed should also reflect the element of retribution, albeit to a lesser extent.

[25] In the result, it is ordered:
1.	The appeal against sentence succeeds to the extent that the sentence is set aside and is substituted with the following: Three (3) years imprisonment of which eighteen (18) months imprisonment is suspended for five (5) years, on condition that the accused is not convicted of the offence of assault with intent to cause grievous bodily harm, committed during the period of suspension.
2.	Appellant to report himself to the Clerk of Court Tsumeb within seven (7) days from today for committal.

LIEBENBERG, J

I concur.

TOMMASI, J

ON BEHALF OF THE APPELLANT				MS. F. Kishi 

Instructed by:							Kishi Legal Practitioners 

ON BEHALF OF THE RESPONDENT			Mr. D. Lisulo

Instructed by:						Office of the Prosecutor-General