Court name
High Court Main Division
Case name
Hituamata v S
Media neutral citation
[2020] NAHCMD 354

 

IN THE HIGH COURT OF NAMIBIA

“ANNEXURE 11”

 

Case Title: Joshua Hituamata  v The State

 

Case No: CC 09/2015

 

Division of Court: High Court Main Division

 

Heard before: Honourable Lady Justice Shivute

 

Delivered on: 14 August 2020

 

Neutral citation:  Hituamata v S (CC 09/2015) [2020] NAHCMD 354 (14 August 2020)

The order:

  1. Application for the late filing of notice of leave to appeal is refused.
  2. Application for leave to appeal against sentence is dismissed.

 

Reasons for order:

SHIVUTE J

1. The applicant was convicted in this court of murder with direct intent. He was sentenced to 28 years’ imprisonment. He is aggrieved by the sentence hence this application for leave to appeal.

 

2. Counsel for the respondent raised a point in limine that the notice of application for leave to appeal was filed out of the prescribed time. The applicant was sentenced on 4 April 2017 and should have filed his notice of application for leave to appeal by 18 April 2017, but his notice of leave to appeal was only filed on 25 April 2017. In other words, the applicant was late with 7 days.

 

3. I allowed the parties to argue on the application for condonation of late filing of leave to appeal as well as on the merits.

 

4. Section 316 (1) of the Criminal Procedure Act, 51 of 1977 makes a provision that the court of appeal may condone an applicant’s failure to timeously file his application for leave to appeal. However, for the court to grant an application for condonation, the applicant must satisfy two requirements:

 

(a) Firstly, he must satisfy the court that there are some reasonable and sufficient grounds why the requirement of the Act or rules have not been complied with. In other words he must give a reasonable explanation for the delay.

 

(b) Secondly, he must show the court that he has reasonable prospects of success on appeal.

 

5. The applicant has filed a notice of leave to appeal dated 19 April 2017. However, it bears the date stamp of the correctional facility for the date of 25 April 2017. This was also the date it was received by the office of the registrar. The applicant explained that he had filed his notice of leave to appeal on 19 April 2017. Although the notice of leave to appeal was dated 19 April 2017, it was only received by correctional officers on 25 April 2017, which makes it to be out of the prescribed time of 14 days. The applicant did not give any satisfactory explanation for the delay therefore, he failed to satisfy the requirement of the first leg.

 

6. I will now proceed with the second leg requirement of prospects of success on appeal. The explanation for the delay of the late filing of leave to appeal and the prospects of success are not individually decisive as they are interrelated and they have to be considered together. A strong prospect of success may reduce the bad effects of the explanation for the delay and vice versa. In this matter, the appellant did not give any reason why he thinks that he has prospects of success on appeal.

 

7. The applicant’s grounds of appeal are as follows:

 

  1. The court erred by paying lip service to the personal circumstances of the applicant.
  2. The court erred by overemphasising the seriousness of the offence at the expense of the surrounding circumstances.
  3. The court erred in law or fact by not suspending a portion of the sentence.

 

8. This court when deciding the appropriate sentence, considered the seriousness of the offence, the degree of harmfulness of the offence and the degree of culpability of the offender. The deceased was shot on the head and chest whilst he was lying defenceless and harmless. This is an aggravating factor.

 

9. The court had taken into consideration that the applicant is a first offender, who contributed towards the funeral expenses of the deceased and he also paid compensation. The court had also considered the period he had been in custody awaiting the finalisation of his trial.

 

10. The court was also alive to the interest of society and imposed a sentence that has a deterrent effect. The court had considered all the different factors and harmonised them in order to strike a balance and came to the conclusion that the aggravating factors outweighed the personal circumstances of the applicant.

 

11. The applicant contended that the court misdirected itself by overemphasising other factors at the expense of the personal circumstances of the applicant as well as paying lip service to them. The appellant had also criticised this court for not suspending a portion of the sentence. He went on to argue that the court painted a picture that the applicant committed a heinous offence, by saying that the accused shot the deceased on the head and chest after he incapacitated him and he was laying harmless and helplessly.

 

12. Counsel for the respondent on the other hand, argued that the sentence imposed is in line with other decided cases in this court and that the court had exercised its discretion judiciously. With regard to the suspension of a portion of the sentence, counsel correctly argued that since the applicant is sentenced for a long term of imprisonment a suspended sentence is not appropriate in the circumstances.

 

13. The essential inquiry in an appeal against sentence, however, is not whether the sentence was right or wrong, but whether the court, in imposing it exercised its discretion properly and judicially. S v Pillay 1977 (4) SA 531 (AD) E-G.

 

14. The applicant’s argument that the court paid lip service to his personal circumstances and it painted a picture that the applicant committed a heinous offence has no merit. The court had taken into account the applicant’s personal circumstances. It is also borne by the record that the applicant had committed a heinous offence.

 

15. This court having had the discretionary power to impose the sentence, is of the opinion that a suspended sentence is not appropriate in the circumstances. The sentence imposed is not inappropriate and it does not induce a sense of shock.

 

16. I am therefore, of the opinion that this court did not misdirect itself and another court may not reasonably come to a different conclusion as the court had exercised its discretion properly and judiciously.

 

17. In the premises, the following order is made:

 

  1. The applicant did not satisfy this court that he has prospects of success on appeal.
  2. The application for leave to appeal against sentence is dismissed.

 

 

N N SHIVUTE

JUDGE