Nguzerua v S (CA 169/2008) [2010] NAHC 53 (16 July 2010);

Group

Full judgment
ON RESUMPTION ON 2008



CASE NO.: CA 169/2008

NOT REPORTABLE

IN THE HIGH COURT OF NAMIBIA



In the matter between:




KAHENGERE NGUZERUA APPELLANT



and



THE STATE RESPONDENT




CORAM: HOFF, AJP. et NDAUENDAPO, J




Heard On: 2010.07.16


Delivered On: 2010.07.16 (Ex tempore)



APPEAL JUDGMENT



HOFF, J: [1] The appellant in this matter was charged with the offence of escaping from lawful custody in terms of our common law and was sentenced to 3 years imprisonment on the 10th of July 2008. The appellant now appeals against the sentence imposed.


[2] It is common cause that the appellant pleaded guilty to the charge, that he was questioned by the magistrate who subsequently entered a plea of not guilty and that one witness was led by the State, whereafter the appellant was convicted from escaping from lawful custody.


[3] It is also clear from the record, that during the proceedings, the appellant was not satisfied with the particular prosecutor prosecuting him and for that reason after some exchange of words between himself and the magistrate, he excused himself from the proceedings. The appellant was subsequently sentenced to three years imprisonment in his absence.


[4] This Court raised the point with counsel appearing on behalf of the respondent Mr Campher that it was not prudent for the magistrate before sentencing the appellant not to have given him the opportunity to address the Court and put mitigating factors before the Court. Mr Campher agreed that, that would have been a preferable route to follow by the magistrate, and I agree with that.


[5] I am of the view the fact that the magistrate did not offer the appellant an opportunity to address him under these circumstances in mitigation of sentence, constituted an irregularity. For that reason, this Court is entitled to interfere with the sentence imposed.


[6] The conviction in this matter is accordingly confirmed. The sentence imposed is set aside. The matter is referred back to the magistrate and ordered to give the appellant an opportunity to place mitigating factors before the Court, if the appellant so wishes, and thereafter to sentence the appellant afresh. The magistrate should also, in sentencing the appellant take into account the period that the appellant has served since the sentence was imposed, until the date of imposing this new sentence.





______________

HOFF, AJP



I agree





__________________

NDAUENDAPO, J




ON BEHALF OF THE APPELLANT IN PERSON



Instructed by:




ON BEHALF OF THE RESPONDENT ADV. CAMPHER



Instructed by: OFFICE OF THE PROSECUTOR GENERAL



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