Gerevasio v S (19 of 2017) [2017] NAHCNLD 97 (28 September 2017)

NOT REPORTABLE

HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI

APPEAL JUDGEMENT

Case No.: CA 19/2017

In the matter between:

KAUFIWONGALI GEREVASIO APPELLANT

and

THE STATE RESPONDENT

Neutral citation: Gerevasio v S (CA 19/2017) [2017] NAHCNLD 97 (28 September 2017)

Coram: TOMMASI, J and JANUARY, J

Heard: 17 August 2017

Delivered: 28 September 2017

Flynote: Criminal Procedure – Appeal – Sentence – Robbery – Reduction of sentence – Fine – Inappropriate.

Summary: The appellant was convicted of robbery and sentenced to two years’ imprisonment. While the complainant was walking at a place called Sky Bridge in Oshakati two assailants approached her. One of them grabbed her on the arm twisted the arm, beat her on the forehead with a fist and tripped her down. The appellant grabbed her cellphone, N$2 000 from her hand and ran off. She positively identified the appellant as the person who grabbed the cellphone from her hand.

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ORDER

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1. The appeal is dismissed.

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APPEAL JUDGEMENT

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JANUARY J (Tommasi, J Concurring)

[1] The appellant was convicted in the Oshakati Magistrates court for robbery after he pleaded not guilty. He now appeals against a sentence of two years’ imprisonment. He appears in person and does not advance any particular ground of appeal.

[2] The appellant only submits that his sentence should be reduced and he prays for a fine of N$200 in order for him to resume his employment as a builder. He submits that he will never buy something in the street again; that he is a father and that he is currently unemployed.

[3] The personal circumstances of the appellant are that he is not married. He has two children. He stated in mitigation that he is employed and earns a salary of N$1 500 contrary to what he alleges in his notice of appeal that he is unemployed. He further stated in mitigation that he cannot afford to pay a fine because he is still on holiday and has not started working yet at a construction site. The appellant is a first offender.

[4] The appellant alleged that he just bought the cellphone from a guy that he knew. He was however trying to sell the cellphone the day after the robbery. A Police Officer pretending to be a buyer approached the appellant and seized the cellphone after the complainant identified it.

[5] The Learned Magistrate considered correctly that robbery is a serious and prevalent offence. He sentenced the appellant as a first offender and considered the personal circumstances of the appellant. The complainant lost her handbag with another cellphone, her ID card, an FNB Bob card, N$300 in cash, a watch worth N$400, a necklace and earrings. Only the cellphone which the appellant had and her ID card were recovered. The Magistrate, correctly in my view, found that the appellant showed no remorse.

[6] It is trite law that sentencing is pre-eminently within the discretion of the trial court. This court of appeal has limited power to interfere with the sentencing discretion of a court a quo. A court of appeal can only interfere;

• when there was a material irregularity; or

• a material misdirection on the facts or on the law; or

• where the sentence was startlingly inappropriate;

• or induced a sense of shock; or

• was such that a striking disparity exists between the sentence imposed by the trial Court and that which the Court of appeal would have imposed had it sat in first instance in that;

• irrelevant factors were considered and when the court a quo failed to consider relevant factors.¹

[7] I do not find any misdirection by the Learned Magistrate. He respectfully exercised his sentencing discretion judiciously.

[8] In the result:

The appeal is dismissed.

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H C JANUARY

JUDGE

I Agree

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M A TOMMASI

JUDGE

Appearances:

For the Appellant: In Person

Of Oluno Correctional Facility

For the Respondent: Adv Tjiveze

Of Office of the Prosecutor-General