Court name
High Court
Case number
CA 12 of 2010
Title

S v Abertt (CA 12 of 2010) [2010] NAHC 172 (28 October 2010);

Media neutral citation
[2010] NAHC 172






















NOT
REPORTABLE















CASE
NO: CA 12/2010



IN
THE HIGH COURT OF NAMIBIA











In
the matter between:







SHAROUNA
HEATHER ABERTT

…................................................APPELLANT











and



THE
STATE

…...............................................................................RESPONDENT



CORAM:
NAMANDJE
AJ
et
UEITELE,
AJ.







Heard
on:
2010.10.08



Delivered:
2010.10.28











APPEAL
JUDGMENT







UEITELE,
AJ.
[1]
The appellant, who, at the time of the trial was 22 years of age, was
convicted in the Magistrate Court of Windhoek on a charge of fraud
(Count 1) and a charge of theft (Count 2).











[2]
She pleaded not guilty and she was tried, found guilty and sentenced
to a direct term of twelve months imprisonment as regards Count 1 and
two years direct imprisonment as regards Count 2 which



sentences
were ordered to run concurrently. The appellant was further ordered,
in terms of section 300 of the Criminal Procedure Act, 1977(Act 51 of
1977) to pay an amount of N$ 5 000-00 as compensation to the
complainant her erstwhile employer.











[3]
Appellant, dissatisfied with the sentences, filed a notice of appeal
against both sentences imposed. The grounds of appeal contained in
the notice of appeal are quoted
verbatim
below:
-



"AD
THE SENTENCE



1.
The Learned
Magistrate failed to take into account or take into account
adequately, that



1.1. The
Appellant was a first offender.



1.2. The
Appellant was only 22 years old at the relevant time.



1.3. The value of
the goods was only N$ 19 624-00.











2.
The Learned
Magistrate over-emphasized the seriousness of the offence and the
interest of society.



3. The sentence
imposed is so unreasonable, that no reasonable Court could have
imposed.



4. The Learned
Magistrate failed to take into account or take into account
adequately the personal circumstances of the accused. "







[4]
The appellant, in the court
a
quo
and
on appeal was represented by Mr Murorua. The State was represented in
the court
a
quo
by
Mr Lino and on appeal by Mr Marondedze.















[5]
Mr Murorua, on behalf of the appellant, in appellant's main heads of
argument and during the hearing of the appeal, in addition to the
grounds reflected in the notice of appeal referred us to a list of
cases and an article which appeared in a local newspaper, in which
persons who were convicted of fraud or theft were fined instead of
direct imprisonment:. After citing the cases Mr Murorua argued that-



"The
Court is relevantly entitled to have regard to the effect which the
particular punishment is likely to have on the appellant who was at
the time rearing a 1% year old infant, enjoys stable employment, and
is a fineable Appellant, young adult (22 years old) first offender
and an ideal candidate for rehabilitative type of sentencing. There
is it is submitted no need for incapacitation of the Appellant as the
ill effects of that particular type of sentence will manifests in
loss of employment for the appellant and negatively affect her infant
dependant. The community interest will further be negatively affected
in that the community will be burden with support of the appellant's
infant dependant if she gets a prison sentence or even just lose her
job. Sentence of imprisonment will furthermore result in loss of
status, employment and employment benefits to the Appellant and the
minor child will moreover be deprived of a bread winner."







[6]
Mr Marondedze who appeared for respondent countered and argued that
"it is a settled rule of practice that punishment falls within
the discretion of the trial court. As long as the discretion is
judicially, properly and reasonably exercised, an appellate court
ought not to interfere with the sentence imposed".











[7]
The approach of the court sitting as an appeal court on matters
pertaining to sentence was elucidated by Levy J in the case of
State
v Tjiho
1991
NR 361 when he said:



"Both
in the High Court of Namibia and in various Divisions of the Supreme
Court of the Republic of South Africa it has frequently been said
that the sentence which the trial Court imposes on an accused is in
the discretion of such trial court... This discretion is a judicial
discretion and must be exercised in accordance with judicial
principles. Should the trial court fail to do so, the appeal Court is
entitled to, not obliged to, interfere with the sentence. Where
justice requires it, appeal Courts will interfere, but short of this,
Courts of appeal are careful not to erode the discretion accorded to
the trial court as such erosion could undermine the administration of
justice. Conscious of the duty to respect the trial court's
discretion, appeal Courts have over the years laid down guide-lines
which will justify such interference...







In
terms of the guidelines to which I referred above, the appeal Court
is entitled to interfere with a sentence if:



(i)
the
trial court misdirected itself on the facts or on the law;



(ii)
an
irregularity which was material occurred during the sentence
proceedings;



(iii)
the
trial court failed to take into account material facts or
over-emphasised the importance of other facts;



(iv)
the
sentence imposed is startlingly inappropriate, induces a sense of
shock and 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.







[8]
The basis on which we can interfere with the sentence is very clear
the Magistrate should have committed a misdirection, either in the
way he approached the sentencing procedure or in taking into account
irrelevant considerations or failing to take into account relevant
considerations. No such misdirection on the part of the magistrate
has been demonstrated to us and, as a Court of Appeal, even if, had
we sat first instance we would have imposed a different sentence,
that alone would not have entitled us to interfere with the sentence
imposed by the magistrate.















[9]
In the absence of any misdirection or other irregularity in the
process of sentencing we would only be entitled to interfere with the
sentence imposed by the magistrate if the sentence was startlingly
disproportionate or induced a sense of shock.











[10]
I have read and re-read the judgment in respect of sentence imposed
by the trial Court. I have considered the arguments advanced on
behalf of appellant. I am satisfied that the sentence of two years
imposed on appellant may be robust but not so that it creates a sense
of shock or that it is startlingly inappropriate. I am also satisfied
that the trial magistrate has exercised his discretion properly and
in accordance with the relevant sentencing legal principles.



[10]
In the result the Appeal against sentence is dismissed.



[11]
The appellant's bail is cancelled with immediate effect.



[12]
The appellant's bail money be refunded to the depositor.



















UEITELE
AJ











I
agree.















NAMANDJE
AJ







ON
BEHALF OF APPELLANT MR L MURORUA















Instructed
by: MURORUA & ASSOCIATES























ON
BEHALF OF DEFENDANT MR E E MARONDEDZE














Instructed
by: OFFICE OF THE PROSECUTOR-GENERAL