Darius v S (Appeal Judgement) (CA 90/2016) [2017] NAHCMD 94 (20 March 2017);

Group

Full judgment

REPUBLIC OF NAMIBIA

NOT REPORTABLE

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

APPEAL JUDGMENT

Case no: CA 90/2016

In the matter between:

BLACKY KANDJII DARIUS                                                 APPELLANT

And

THE STATE………………………………………………………..RESPONDANT

 

Neutral citation:      Darius v State (CA 90/2016) [2017] NAHCMD 94 (20 March 2017) 

 

Coram:          SIBOLEKA J and USIKU J

Heard:           2 March 2017

Delivered:     20 March 2017

 

Flynote:         Criminal Procedure – Sentence appeal against – Interference by court of appeal – Court justified to interfere with sentence imposed by trial court where latter committing serious misdirection – Sentence set aside and substituted with a different sentence.

Summary:     The Appellant was convicted of assault of a police officer in the execution of his duties in contravention of section 35 (1) of the Police Act.  He was sentenced to pay a fine of N$8000 or 24 months imprisonment and on appeal contends that the trial court misdirected itself as the sentence is too harsh under the circumstances.


ORDER


(1)     The sentence of N$8000 or 24 months imprisonment is set aside and substituted with the following sentence:

N$4000 or 12 months imprisonment.

(2)     The sentence is ante dated to 20 April 2016.


APPEAL JUDGMENT


USIKU J, (SIBOLEKA J concurring)

[1]        Appellant was arraigned in the magistrate’s court for the district of Grootfontein on a charge of assault of a police officer in the execution of his duties in contravention of section 35 (1) of the Police Act 19 of 1990.  He was convicted and sentenced to N$8000 or 24 months imprisonment.  He now appeals against the sentence imposed.       

[2]        In his notice of appeal the appellant cited the following grounds:

a)      That the magistrate misdirected himself or herself by sentencing him to a fine of N$8000 or 24 months imprisonment which is extremely harsh;

b)      That the magistrate erred in law and or in fact by failing to take into account his personal circumstances and imposed the sentence of N$8000 or 24 months whilst he could have considered the purposes of punishment and imposed another form of punishment; and

c)      That the magistrate misdirected himself by failing to consider that he was a single men who was taking care of his three minor children and further that he was in custody for five months prior to him being sentenced.        

[3]        Ms Shikerete appearing on behalf of the respondent conceded that the trial court had misdirected itself in law by imposing a sentence in excess of the prescribed maximum sentence.            

[4]        In terms of the Act, section 35 (1) a court is obliged to impose a maximum sentence of N$4000 or 12 months imprisonment and nothing more.

[5]        Section 35 (1) of the Act provides: “Any person who assaults any member in the exercise of his/her powers or the performance of his/her duties or functions, shall be guilty of an offence and liable on conviction to a fine not exceeding N$4000 or to imprisonment for a period not exceeding 12 months or to both such fine and such imprisonment”. That provision is mandatory.

[6]        In my view, the imposition of a sentence of N$8000 or 24 months imprisonment in the circumstances of this case was a serious misdirection by the court a quo warranting an interfere by this Court.         

[7]        In the result the following order is made:

a)      The sentence of N$8000 or 24 months imprisonment is set aside and substituted with the following sentence:

N$4000 or 12 months imprisonment.

b)      The sentence is ante dated to 20 April 2016.

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DN USIKU

Judge

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A SIBOLEKA

Judge

APPEARANCES

APPELLANTS:         In Person                  

RESPONDENT:        Ms Shikerete

                               Of the Office of the Prosecutor-General, Windhoek

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