S v Trofimus [2020] NAHCNLD 75 (25 June 2020)

Case Title:

The State v Nangolo Trofimus

Case No:

HC-NLD-CRI-APP-CAL-2019/00096

Division of Court:

Northern Local Division

Heard before:

Honourable Mr. Justice January J et

Honourable Ms. Justice Salionga J

Heard on: 11 June 2020

Delivered on: 25 June 2020

Neutral citation: S v Trofimus (HC-NLD-CRI-APP-CAL-2019/00096) [2020] NAHCNLD 75 (25 June 2020)

The order:

1. Condonation is granted.

2. The conviction of contravening section 16(1), read with sections 1, 16(1)(a),6(2) and 33 of the Tobacco Products Control Act, Act 1 of 2010 is confirmed;

3. The sentence of 18 months imprisonment is set aside;

4. The appellant is sentenced to 7 months imprisonment;

5. The sentence is antedated to 05 November 2019;

6. The officer in charge at Oluno Correctional Facility is directed to immediately effect the release of the appellant.

Reasons for the order

JANUARY J (SALIONGA J concurring):

[1] The appellant was charged with contravening section 16(1) read with sections 1, 16(1)(a),

6(2) and 33 of Act 1 of 2010-Dealing in illicit tobacco products to the value of N$2000.

[2] He was represented by Ms Shailemo, pleaded guilty to the charge and was convicted.

[3] He was sentenced to 18 months imprisonment without the option of a fine.

[4] The appellant filed his notice appeal late with an application of condonation and supporting

affidavit. The respondent, represented by Ms Nghiyoonanye did not oppose the application.

She conceded that the appellant has prospects of success on appeal as the sentence is

startlingly inappropriate and induces a sense of shock. Ms Nghiyoonanye further conceded that

a fine would have been appropriate considering the personal circumstances of the appellant.

[5] The appellant is a first offender at the age of 37 years old. He pleaded guilty as a sign of

remorse. He lives with an 80 year old mother and has 7 children. Four of the children attend

school and the appellant is responsible for their maintenance. He is unemployed but generates

income from odd jobs.

[6] I agree with the concession that the sentence is inappropriate and that a fine would have

been appropriate. In my considered view, the magistrate overemphasized the seriousness of

the offence. The appellant however already served slightly more than 7 months imprisonment.

Imposing a fine at this stage would, in my view be prejudicial to the appellant. Hence the order

above.

Judge(s) signature

Comments:

January J

None

Salionga J

None

Counsel:

For Appellant

Ms Shailemo

Of Shailemo & Associates

For Respondent

Ms Nghiyoonanye

Of Office of the Prosecutor-General