REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
Case no: CA 90/2016
In the matter between:
BLACKY KANDJII DARIUS APPELLANT
Neutral citation: Darius v State (CA 90/2016)  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.
(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.
USIKU J, (SIBOLEKA J concurring)
 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.
 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.
 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.
 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.
 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.
 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.
 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.
APPELLANTS: In Person
RESPONDENT: Ms Shikerete
Of the Office of the Prosecutor-General, Windhoek