Shikalepo v S (CA 79/2013) [2014] NAHCMD 29 (31 January 2014);

Group

Full judgment

REPUBLIC OF NAMIBIA

 

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

 

JUDGMENT

 

 

Case no: CA 79/2013
DATE: 31 JANUARY 2014
NOT REPORTABLE

 

 

In the matter between:

MALAKIA SHIKALEPO.........................................................APPELLANT

And

THE STATE..........................................................................RESPONDENT

 

Neutral citation: Shikalepo v State (CA 79/2013) [2014] NAHCMD 29 (31 January 2014)

 

Coram: HOFF J and SIBOLEKA J

 

Heard: 15 November 2013

Delivered: 31 January 2014

 

ORDER

(a) The appeal is dismissed.

(b) The conviction and sentence are confirmed.

 

JUDGMENT

HOFF J (SIBOLEKA J concurring):

[1] This is an appeal against the conviction and sentence imposed by the magistrate’s court held at Oshakati. The appellant and his co-accused were convicted of the crime of housebreaking with intent to steal and theft and each sentenced to three years imprisonment of which one year imprisonment was suspended for a period of two years on condition that the appellant is not convicted of the crime of housebreaking with intent to steal and theft committed during the period of suspension.

[2] The grounds of appeal against conviction enumerated by the appellant were the following:

‘(a) that the learned magistrate erred in law and in fact by concluding that the State proved its case beyond reasonable doubt.

(b) that the learned magistrate was biased towards the appellant resulting in the appellant not receiving a fair trial.

(c) that the learned magistrate erred in law and in fact by finding the appellant guilty as charged, despite the fact that appellant according to his version was only involved in transporting one of the stolen items to a ‘promised Mayo’.

(d) that the sentence imposed upon the appellant is harsh and that the magistrate should have considered an option of a fine.’

 

[3] The State called the complainant in this matter who is the owner of an establishment trading as Ndinelago Bar as well as the investigating officer, a member of the Namibian Police.

[4] The evidence led proved that on the night in question (24 February 2012) the bar was properly secured with windows closed and the doors locked. The next morning it was discovered that the doors had been broken and entry was gained into the premises; property, including a juke box, to the value of N$32 000.00 were removed. Two sets of footprints led to the place of a certain Mr Maya. The appellant and his co-accused were the persons who had moved the property from the bar to the place of Mr Maya. This much was admitted by the appellant and his co-accused. The juke box and speaker were recovered from Mr Maya who implicated the appellant and his co-accused as having brought the property to his premises; and that all these events occurred within the space of a few hours.

[5] Mr Kenny who appeared on behalf of the appellant as amicus curiae did not take issue with the conviction of the appellant and correctly so in my view. The evidence proved that the appellant and his co-accused had possession of the stolen goods and applying the doctrine of recent possession in the circumstances the only inference which may be drawn is that the appellant and his co-accused had broken into the premises and had stolen the said goods.

[6] In respect of the allegation of bias by the presiding magistrate, the appellant failed to point out any fact which could point to bias by the magistrate. This allegation of bias is a bold allegation without any foundation.

[7] In respect of sentence a court of appeal is entitled to interfere with a sentence imposed only where the trial court has misdirected itself on the facts or on the law; where an irregularity which was material occurred during the sentence proceedings; where the trial court failed to take into account material facts or overemphasized the importance of other facts; or where the sentence imposed is startlingly inappropriate, induces a sense of shock and where there is a striking disparity between the sentence imposed by the trial court and that which would have been imposed by the court of appeal.1

[8] It was submitted by Mr Kenny that although the imposition of a fine would be an inappropriate sentence, that a period of two years imprisonment may not have the desired rehabilitative effect on such a young person as the appellant and requested this court to impose a lesser term of imprisonment and a longer term of suspended sentence. I must however add that apart from the aforementioned request no reliance was placed on any of those consideration enumerated in paragraph [7].

[9] In S v Drotsky 2005 NR 487 at 489H-490A this court stated the following in respect of the issue of sentence for a conviction of housebreaking with intent to steal and theft:

‘The crime of housebreaking with intent to steal and theft is – as the magistrate has observed – a prevalent and serious one. It is regarded by law and society as a particularly insidious form of theft. It is said that a man’s home is his castle. If there is one place where a person should feel safe and secure it is in his home. Housebreaking with intent to steal and theft strike and destroy the sense of safety and security which the occupants are entitled to enjoy. It constitutes an unlawful invasion of the complainant’s privacy and an illegal misappropriation of his or her possessions – sometimes commercially irreplaceable goods of great sentimental value. For these reasons society has a particular interest that the commission of this crime should be discouraged by an appropriate judicial response. Perpetrator should know that the norm is imprisonment without the option of a fine unless the circumstances of a particular case justify the imposition of a lesser sentence.’

[10] In view of the fact that the magistrate committed no misdirection or irregularity this court is constrained to interfere with this sentence.

[11] In the result the following orders are made:

(a) The appeal is dismissed.

(b) The conviction and sentence are confirmed.

 

E P B HOFF

Judge

 

A SIBOLEKA

Judge

 

APPEARANCES

APPELLANT :S Kenny

Theunissen, Louw & Partners (Amicus curiae)

 

RESPONDENT : P S Kumalo

Office of the Prosecutor-General, Windhoek

 

1S v Tjoho 1991 NR 361 at 366; S v Ndikwetepo and Others 1993 NR 319 (SC); S v Simon 2007 NR 500 (HC).

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