Court name
High Court
Case number
CA 27 of 2009
Case name
S v Eiseb
Media neutral citation
[2010] NAHC 45



























CASE
NO.: CA 27/2009






IN
THE HIGH COURT OF NAMIBIA











In the matter
between







THE STATE APPELLANT











versus










RUBEN EISEB
RESPONDENT



















CORAM: HOFF,
J















Heard
on: 2010.06.21











Delivered
on: 2010.06.25















JUDGMENT



Application for
leave to appeal















HOFF,
J.
: [1] The
State applied in terms of section 310 of the Criminal Procedure Act
51 of 1977 for leave to appeal against a sentence imposed in the
Regional Court. The respondent (accused in the court
a
quo
) was convicted
of murdering his brother by stabbing him with a knife. He was
sentenced to 9 years imprisonment of which 5 years imprisonment were
suspended for a period of 5 years on condition that he is not
convicted of a crime where violence against another person is an
element committed during the period of suspension.







[2] Mr
A Small
(amicus
curiae)
appeared on
behalf of the respondent and Mr J Eixab on behalf of the
applicant.







[3] A
point
in limine
was raised by Mr Small. He submitted in his heads of argument, that
the State’s non-compliance with the provisions of sections 310
(3) and (4) has as a consequence that the application is not properly
before me and that this application therefore could not be heard at
this stage.







[4] The
Prosecutor-General shall in terms of section 310 (3) at least 14 days
before the date appointed for the hearing of the application cause to
be served upon the accused in person a copy of a notice (to apply for
leave to appeal) together with a written statement of the rights of
the accused in terms of section 310 (4). An accused may, in terms of
section 310 (4), within a period of 10 days of the serving of the
notice upon him or her lodge a written submission with the registrar
and the registrar shall in turn submit it to the judge who is to hear
the application.







[5] Mr
Eixab provided me an affidavit by the respondent in which the
respondent acknowledged that a notice in terms of section 310 (2) was
received by him on 2 March 2009. The respondent in this
affidavit continued to submit that the magistrate did not misdirect
herself when imposing the sentence and prayed that the application
for leave to appeal be dismissed. Mr Small was unaware of this
affidavit and informed me that had he known of this affidavit he
would not have raised the point
in
limine
.



I ordered that the
application be considered on the merits.







[6] The grounds of
appeal were the following:



That the learned
Regional Magistrate misdirected herself alternatively erred in law
and/or fact by:







1. imposing a
sentence which is so lenient that it induces a sense of shock and
which is grossly inadequate as the learned Regional Magistrate did
not consider that the respondent planned to stab the deceased.







2. imposing a
sentence which does not reflect the gravity of the crime and fails to
take into account the prevalence of domestic violence in Namibia.







3. failing to
accord sufficient weight to the need for the sentence imposed to
serve as a deterrent to other members of society who may be like
minded to give vent to their frustrations by resorting to domestic
violence.







4. over-emphasizing
the personal circumstances of the accused and the mitigating factors
in the case.







5. not considering
that respondent did not express genuine remorse.







[7] The respondent
was 19 years of age at the time of the commission of the crime. The
respondent was on medication since he was prone to epileptic fits.
On 8 June 2005 the respondent arrived home under the influence of
liquor. He found his mother, his brother (the deceased), the
girlfriend of the deceased and one Gabriel inside the house. There
was an exchange of words between respondent and his mother and
subsequently the respondent was slapped by the deceased. The
respondent went to his bedroom and asked the deceased to bring his
pen. The deceased entered the bedroom and inside the bedroom he was
stabbed with a knife in his chest, the knife piercing his heart.







[8] The
magistrate indicated to the respondent before sentencing him that she
took into account his personal circumstances, in particular that he
suffers from epileptic fits, that to a
“certain
extent”
he has
shown some remorse, that it was an exceptional case since he killed
his own brother and she posed the question whether this could be seen
as a
“lesser
murder”,
that
the deceased was stabbed several times, that he was a youthful
offender, that it was a serious offence of which he had been
convicted of, and that the interests of the society were considered.
She also referred to the sentencing objectives of rehabilitation and
deterrence.







[9] It
was submitted on behalf of the respondent that the magistrate
correctly considered the various factors referred to
supra
and that there was
no misdirection by her.











[10] On
behalf of the applicant it was submitted that the regional court
magistrate misdirected herself on a number of issues. I was referred
to authority to the effect the general thread apparent from sentences
in cases decided in recent years in regard to a particular offence
cannot be ignored. I was referred to a number of recent sentences by
this Court in respect of the crime of murder which ranged from
between sixteen and thirty years. I must however add that each
sentence is to be considered having regard to the particular
circumstances of such a case having considered
inter
alia
the mitigating
circumstances as well as the extenuating circumstances.







[11] In an
application for leave to appeal the applicant must satisfy the Court
that he or she has a reasonable prospect of success on appeal.



(See
S v Sikosana 1980 (4)
SA 559 (A) ).







[12] “The
mere possibility that another Court might come to a different
conclusion is not sufficient to justify the grant of leave to
appeal”.



(See
S v
Ceaser 1977 (2)
SA 348 (A) at 350
);
nor is it enough that the case is
“fairly
arguable”.



(See
R v Baloi 1949 (1) SA
523 (A)
); nor is
it enough that it will offer solace to the applicant to know that the
final decision in a serious case will be given by the Appeal Court.



(See
S v Swanepoel 1978
(2) SA 410 (A)
).







[13] As
it was stated in
Sikosana
(supra)
the trial
judge must proceed to consider the case from an objective standpoint
and ask himself whether there is not a reasonable prospect that
another Court might come to a different conclusion.



[14] I am alive to
the fact that when a sentence is imposed a judicial discretion is
exercised by the trial judge or trial magistrate which is not lightly
interfered with on appeal.



In
S v Tjiho 1991 NR 361
Levy J
said in this
regard:
“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”.



An appeal court
would be entitled to interfere with the sentence imposed by the trial
court when:







(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-emphasized 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.







[15] The
applicant in its heads of argument referred me to certain
misdirections by the trial magistrate. Those submissions are not
without merit. In addition there is much substance in the submission
that the fact that the respondent killed his brother was
over-emphasized and regarded by the trial court as an exceptional
case in the sense that was seen as a
“lesser
murder”.






[16] In addition I
agree with the submission in applicant’s heads of argument that
the sentence imposed in the regional court is so lenient that it
induces a sense of shock and is disturbingly inappropriate.






[17] I am of the
view that there is a reasonable prospect of success on appeal since
there is a very real prospect that an appeal court might come to a
different conclusion.







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







1. The
application for leave to appeal is granted.























___________


HOFF, J



































ON BEHALF OF
THE APPELLANT: ADV. J E EIXAB











Instructed
by: OFFICE OF THE PROSECUTOR-GENERAL















ON BEHALF OF
THE RESPONDENT ADV. A J B SMALL







Instructed
by:
AMICUS
CURIAE