Court name
Supreme Court
Case name
S v Tjivela
Media neutral citation
[2004] NASC 9
















CASE
No. SA14/2003







IN
THE SUPREME COURT OF NAMIBIA





In
the matter between













GERSON
TJIVELA



APPELLANT






And













THE
STATE



RESPONDENT










CORAM: Mtambanengwe,
A.C.J. O’Linn, A.J.A. et Chomba, A.J.A.



HEARD
ON: 20/10/2004



DELIVERED
ON: 16/12/2004











APPEAL
JUDGMENT








CHOMBA,
A.J.A.
: The appellant,
Gerson Tjivela, was on March 20, 2002, then aged 32 years convicted
on three counts, namely indecent assault, rape and murder. In the
result prison sentences of 1 year, 20 years and 30 years were
respectively imposed on him. The learned trial judge in the court
below then made the following order, to wit, that the sentences on
the first two counts run concurrently while those on the second and
third counts should run consecutively. The effective sentence
imposed was therefore one of 50 years imprisonment
.





The
appellant unsuccessfully applied to the court a quo for leave to
appeal against both conviction and sentence on all counts.
Undaunted, he thereafter submitted a petition of a similar nature to
the Supreme Court. On May 12, 2003, Mtambanengwe, A.C.J., Teek,
J.A., and O’Linn, A.J.A., sitting in Chambers, granted leave to
appeal against sentences only.





In
the heads of argument submitted by both the appellant’s and
respondent’s counsel, due recognition was given to the well settled
principle that, by and large, the power of sentencing criminal
offenders lies within the discretion of trial courts; that where that
discretion has been judicially exercised, an appellate court should
be slow in its approach to the question of interfering with sentence.
To this end, both counsel cited the case of S v Rabbie (4) SA
855A in which Holmes, J.A. stated at page 857 –






In
every appeal against sentence whether imposed by a magistrate or by a
judge, the court hearing the appeal -








  1. should
    be guided by the principle that the punishment is pre-eminently a
    matter for the discretion of a trial court, and









  1. should
    be careful not to erode such discretion; hence the further principle
    that the sentence should only be altered if the discretion has not
    been judicially exercised.”









Similarly the case of R v Lindsay 1956(2)
SA 235 (N) was cited and in it Holmes J., as he then was, said –






Judging
by the appeals against sentence which come before us, it would not
appear to be sufficiently appreciated that the Supreme Court does not
have an overriding benevolent discretion to ameliorate magistrates’
sentences. The matter is governed by principle, not by ad hoc
discretion. And the principle is this : If a magistrate has passed a
sentence within his jurisdiction, and has not misdirected himself on
law, and has duly considered the relevant facts, the Supreme Court
will not interfere unless the sentence is so severe as to be unjust.”









It
is inherent in the principle stated in the two sample cases, Rabbie
and Lindsay, supra, that the door to interference with sentence by an
appellate court has never been irretrievably shut. Some of the bases
upon which the opening of that door is justified are disclosed in the
following cases :






S
v Mothile
1977(3) SA 823:






“The
sentence imposed is totally out of proportion to the seriousness of
the crime, that is to say the sentence was disturbingly inappropriate
and sufficiently disparate for the court to interfere.”








S
v Hlapenzula and NO
1965 (4) SA 439:






“The sentence is grossly excessive and severe in that it induces
the feeling of shock and outrage in the mind of the court.”










S
v Van Wyk
1992(1) SA CR 147 (Nm):






“ ------- a court of appeal cannot interfere unless the discretion
was not judicially exercised, that is to say, unless the sentence is
vitiated by irregularity or misdirection or is so severe that no
reasonable court could have imposed it.”






S
v Ivanisevic and Another
1957 (4) SA 572 (A):





“ Where however
the dictates of justice are such as clearly to make it appear to this
court that the trial court ought to have had regard to certain
factors and that it failed to do so, or that it ought to have
assessed the value of these factors differently from what it did,
then such action by the trial court will be regarded as a
misdirection on its part entitling this court to consider the
sentence afresh.”












Authorities
on the principles which buttress justification for interference with
sentence are so legion that one can go on and on reproducing them.
However I think that this is unnecessary and therefore I shall pause
here and then proceed to consider what appeared to me in the course
of hearing this appeal to be the main pillar upon which the
appellant’s counsel, Ms. Daringo, relied in praying that this
court should interfere with the sentences imposed on the appellant.
She submitted that in their individual capacities the sentences of
20 years and 30 years imposed in respect of the rape and murder
respectively were condign. However, she expressed concern at the
ordering by the court a quo that those sentences should run
consecutively to produce an aggregate and effective sentence of 50
years. In her view that aggregation sentence induced a sense of
shock when account is taken of the appellant’s age at the time of
committing the offences, namely 32 years. She shuddered at the
thought that the appellant will have attained the age of 82 years at
the time of release from prison if the whole of the cumulative
sentence imposed were to be served.





Ms.
Daringo further accused the trial judge of paying insufficient or no
regard to the important principle that criminal punishment is
intended to be rehabilitative. She wondered how the appellant could
be rehabilitated when he will be a senile man of 82 years at the
completion of the sentences. She referred us to that part of the
homily given by the judge prior to imposing sentence when he
stated the purposes of punishment as being retribution, deterrence
and rehabilitation. She criticized that despite that sound direction
to himself the trial judge however over-emphasized the deterrence
objective at the expense of rehabilitation. In underscoring that
criticism she stated this court’s dictum in S v. Ndikwetepo
1993 NR 319(SC) in which at page 324 I stated the following :






“In our view a misdirection would be said to occur if for example,
the court a quo were to fail to apply any or all the principles of
punishment, or if in applying them the court was guilty of
over-emphasizing any one of them at the expense of others.”









On
the face of it Ms. Daringo would appear to be justified to cite that
dictum in aid of her argument in the present case, but in
reality she is not. The pith in the dictum cited from
Ndikwetepo is the phrase “at the expense of others.” The
Oxford Advanced Learners’ Dictionary gives the meaning of
that phrase as “with loss or damage to something.” The dictionary
gives as an illustration of that meaning the sentence “he built up
a successful business but at the expense of his health,” which
means that although that person succeeded in establishing the
business the consequence of his efforts to succeed was that he
injured his health. Did the trial judge, by parity of reasoning,
over-emphasize deterrence while occasioning loss or damage to
rehabilitation?





In
explaining the objective of rehabilitation the judge stated the
following as reflected at lines 10 to 15 of page 2 of his judgment
(Page 805 of appeal record):






“In rehabilitation the court must consider a sentence which will
afford the offender an opportunity to reform. This is the ultimate
objective that the courts generally strive to achieve as retribution
has now yielded ground to rehabilitation.”









As
can be seen from this excerpt, the judge recognized rehabilitation as
the ultimate, i.e. the best or fundamental objective of punishment.
Having given such pre-eminence to rehabilitation how can he at the
same time be said to have over-emphasized something else at the
expense of rehabilitation? It is evident that he was alive to it,
and therefore did not over-emphasize the importance of deterrence, at
the expense of rehabilitation.





In
my judgment the learned judge was entitled after giving lauded regard
to rehabilitation to nevertheless examine, as he in fact did the
facts and circumstances in which the current offences were committed.
He summed up these circumstances by observing “that the crimes the
accused has been convicted of are so vile and apprehensible.”
While I endorse that observation, I feel that what he said was an
understatement.





The
victim of these crimes was barely a teenager, a school-going girl and
innocent. At the time the appellant assailed her, ravished and
brutally broke her neck, she was sleeping in her own home, a place
she undoubtedly thought as her safest sanctuary.


Further,
the appellant showed no remorse for the dastardly offences he
committed. He persisted in protesting his innocence up to the time
when his quest to appeal against conviction was rejected by the
judges of this court sitting in these Chambers. His attitude in this
regard begs the question whether a shorter imprisonment period would
have had any reformative influence on him.





Although
the trial judge never alluded to considering prevalence of crimes
of violence as a factor in aid of assessing punishment, I am of the
view that this ought to have been done. There are far too many
crimes of violence being perpetrated by Namibians on Namibians in
this country. Records of cases heard and determined by this court
bear testimony to this intolerable situation. Not infrequently, as
in the current case, lives are lost in consequence of such crimes.
Quite clearly courts have, when an opportunity presents itself, to
play their role in protecting potential victims of this scourge by
imposing deterrent sentences on persons found wanting in the field of
respect for human life.





In
the final analysis, I am of the view that in imposing the cumulative
prison sentence of 50 years the trial judge exercised his discretion
not only judicially but also judiciously. Having regard to the
revolting circumstances in which the crimes under consideration were
committed this court cannot accept that the sentence imposed was
irregular or wrong in principle. This court cannot accept the
submission made by Ms. Daringo – although we commend her for the
industry she must have put into preparing her submissions – that
there is any justification for this court to interfere with the
sentences. Consequently I find the appeal to be without merit.





In
the result:






The
appeal is dismissed.












________________________



CHOMBA,
A.J.A.















I
agree



















________________________



MTAMBANENGWE,
A.C.J.















I
agree.























________________________



O'LINN,
A.J.A.


























COUNSEL FOR APPELLANT:


INSTRUCTED
BY:









MS.
P. DARINGO


LEGAL
AID






COUNSEL
FOR RESPONDENT:


INSTRUCTED
BY:



MR.
D.F. SMALL


PROSECUTOR-GENERAL