REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK
Case no: CA 68/2012
In the matter between:
Iiyambo v State (CA 68/2012)  NAHCMD 42 (8 February
Coram: MILLER AJ
and PARKER AJ
procedure – Sentence – Appeal against – Sentence
pre-eminently falling within discretion of trial court.
procedure – Sentence – Appeal against –
Interference by appeal court – Appeal court does not have
unfettered discretion to reconsider sentence imposed by trial court –
Principle in S v Ndikwelepo and Others 1993 NR 319 applied –
Appeal court may only interfere with trial court’s exercise of
discretion if sentence imposed is so manifestly excessive that it
induces a sense of shock in the mind of appeal court – In
casu, on the facts, and in the circumstances, of the case court
not persuaded that sentence imposed by trial court is shockingly
inappropriate – Consequently court dismissed appeal.
procedure – Any submission by public prosecutor or defence
counsel on any matter in the proceedings do not bind the court.
procedure – Submissions by public prosecutor on any matter
during proceedings does not bind the court – In casu
public prosecutor proposed a sentence of six months’
imprisonment but magistrate imposed a sentence of two years’
imprisonment – Appellant takes issue with the magistrate not
accepting public prosecutor’s proposal – Submissions by
public prosecutor or defence counsel on any matter, including
sentence, do not bind the court.
The appeal is dismissed.
MILLER AJ (PARKER AJ
 The appellant
represents himself. The State is represented by Mr Nduna who filed
heads of argument and he stands by those.
 The appellant in this
matter was charged before the Magistrate of Swakopmund with the crime
of housebreaking with intent to steal and theft. He was represented
at the trial and upon being arraigned tendered a plea guilty to theft
which plea the State accepted.
 The appellant’s
legal representative thereupon handed up a document in terms of
section 112(1)(b) of Act 51 of 1977 and the magistrate thereupon in
my view correctly convicted the appellant on the charge of theft. The
facts briefly are that the appellant was at the relevant time
employed as security guard by a security firm based in Swakopmund. He
was summoned to attend to an alarm at a residential property and upon
his arrival he found the door to be open. The appellant than entered
the house and removed various valuable items from the house which he
wanted to dispose of.
 The appellant’s
legal representative on the question of sentence placed the personal
circumstances of the appellant before the magistrate. He emphasized
that the appellant had pleaded guilty and that he was sorry for what
he had done. He also pointed to the fact that the appellant was a
first offender. The prosecutor thereupon addressed the learned
magistrate and during the course of his address proposed to the
magistrate that a sentence of six months imprisonment without the
option of a fine was in his view an appropriate sentence. The
magistrate instead imposed a sentence of two years imprisonment upon
the appellant and it is against that sentence that the appeal lies.
 Pursuant to the
noting of the appeal the learned magistrate provided written reasons
for the sentence she had imposed and the court is indebted to the
magistrate for her efforts in this regard. The magistrate emphasized,
in my view without overemphasizing, the fact that the appellant was a
security guard and thus in the position of trust. He breached the
trust not only of his employer but also the employer’s clients
to whom he owed a duty in the sense that he was there to protect the
property and not to steal it. The magistrate correctly took into
account the fact that the appellant was a first offender and she also
considered the fact that he pleaded guilty.
 In the end the
magistrate concluded that the appellant’s personal
circumstances and interests did not measure up to the gravity of the
crime committed and the interest of society. It has been pointed out
on numerous occasions that weighing up the interest of society
against the personal circumstances of the appellant is a balancing
exercise and that given the particular circumstances of a case the
interests of society may outweigh the personal circumstances of the
appellant or vice versa. In any event, as it was pointed out by the
Supreme Court in the case of S v Ndikwetepo and Others 1993 NR
319 (SC) this Court sitting as a court of appeal does not have an
unfettered discretion to reconsider the sentence imposed by the
magistrate. The learned judges in that judgment made it plain that
punishment is pre-eminently a matter of discretion vesting in the
trial court and stated that this court, sitting as a court of appeal,
will only interfere with the sentence if it is so manifestly
excessive that it induces a sense of shock in the mind of the court.
 I am not persuaded
that the magistrate in exercising her discretion to impose the
sentence of two years imprisonment imposed a sentence which to my
mind induces a sense of shock.
 The appellant points
to the fact that the prosecutor had submitted that six months
imprisonment was appropriate. Although such a suggestion may in the
circumstances of the particular case be helpful it must be borne in
mind that the magistrate’s discretion as to what sentence to
impose will not be fettered by what the prosecutor thinks an
appropriate sentence is. The question of sentence and what is
appropriate and what not is an unfettered discretion which the
learned magistrate exercises. In all these circumstances it seems to
me that the sentence imposed was not shockingly inappropriate and I
would therefore dismiss the appeal.
P J Miller
APPELLANT : In Person.
RESPONDENT: S Nduna
Of Office of the Prosecutor-General,