Court name
High Court
Case number
CA 58 of 2009
Case name
S v Nehemia
Media neutral citation
[2011] NAHC 221
Judge
Liebenberg J
Tommasi J

















CASE NO.: CA 58/2009











IN THE HIGH COURT OF NAMIBIA



HELD AT OSHAKATI







In the matter between:











ANDREAS NEHEMIA
…........................................................................APPELLANT







and







THE STATE
….....................................................................................RESPONDENT











CORAM: LIEBENBERG, J et
TOMMASI, J.







Heard on: 18.07.2011



Delivered on: 22.07.2011











APPEAL JUDGMENT















LIEBENBERG, J.: [1] The
appellant was arraigned in the Regional Court, Oshakati, on a charge
of murder, to which he pleaded guilty. When questioned pursuant to
the provisions of section 112 (1)(b) of the Criminal Procedure Act 51
of 1977, the appellant raised the defence of private defence,
whereafter a plea of not guilty was entered. The trial commenced and
in the end the appellant was convicted as charged and found to have
acted with the required intent in the form of dolus eventualis. He
was sentenced to fifteen years’ imprisonment.







[2] Appellant noted his appeal out of
time and hence, made application for condonation for non-compliance
with Rule 67 of the Magistrate’s Court Rules. In a supporting
affidavit the appellant advanced reasons explaining the delay, which
the respondent considers to be satisfactory and therefore does not
oppose the application.







[3] Condonation is also sought for
what purports to be an amended notice of appeal but which is titled
“Notice of Appeal”, filed with the Registrar of this
Court on the 11th of July 2011 (at 16:48) in which
additional grounds are raised. I pause here to observe that the
latter notice of appeal reads that the appeal is against conviction
and sentence
, which appears to be an error as no grounds of
appeal were raised therein against conviction. In any event, it is
clear from the notice of appeal that the appellant never intended
prosecuting an appeal against his conviction. Appellant explains the
late noting of the amended notice of appeal (one week before the
appeal is to be heard) by saying that when the appeal record was
received on the 3rd of May 2011, he was entitled to amend
his notice of appeal but, as his counsel was engaged in another
matter at the time and carried a heavy workload, she was unable to
note the “amended notice” within the prescribed time
limits. I pause here to observe that Ms. Kishi, counsel for
the appellant, intimated to the Court that the intention was not to
amend the notice, but to note a fresh appeal altogether (despite what
has been stated in the appellant’s affidavit). Mr. Matota’s
view, appearing on behalf of the respondent, pertaining to the
much belated filing of the (second) notice of appeal is that the
appeal could be heard on the latter as it includes all the grounds
raised in the original notice.







[4] It was however pointed out to
counsel that it was bad in law to proceed on the latter notice of
appeal in circumstances where the first notice of appeal has not been
withdrawn and that there are two different notices before the Court.
Counsel for the appellant conceded that it would be improper to
proceed on that basis and invited the Court to strike the notice
dated 11 July 2011. This course, in my view, would be proper and
consequently the latter notice stands to be struck.







[5] Despite the respondent’s
stance not to oppose the application for condonation of the late
noting of the appeal, the granting of the application remains a
matter for the Court to decide and although the explanation advanced
for the late noting of the appeal as such may be considered to be
reasonable, it remains to be decided whether or not there are
prospects of success on appeal. Accordingly, the appeal against
sentence was argued before us on the grounds appearing in the
original notice of appeal.







[6] These grounds amount to the
following: Appellant was unrepresented during the trial and now seems
to suggest that, had he been legally represented at the time, the
trial court would have imposed a lesser sentence. Furthermore, that
in view of the following circumstances, the sentence imposed is
unreasonably harsh and unwarranted. (i) The appellant was not the
aggressor; (ii) that there were other factors present which might
have contributed to the deceased’s death; (iii) the offence was
not premeditated and the deceased’s advanced age ought to have
been considered a mitigating factor; and lastly, that the appellant
has shown remorse. It was also contended that the unprofessional
manner in which the investigating officer conducted his investigation
should have had some (mitigating) bearing on the sentence the court
imposed.







[7] The latter ground is unmeritorious
and deserves no further consideration. As for the first ground which
relates to legal representation, there is nothing apparent from the
record that the magistrate misdirected himself in this regard. On the
contrary, not only was the appellant duly informed of his right to
mitigation but also assisted by the magistrate to put forward as much
as possible facts and information that could assist the court in
finding an appropriate sentence; furthermore, when passing sentence
these factors were given proper consideration and weighed up against
each other as the court was required to do. Not only did the
appellant give evidence, but was also invited to call witnesses in
mitigation. During appellant’s testimony the magistrate,
through proper questioning, guided the appellant to place before the
court all relevant facts and information, and I am not persuaded that
more information would have been forthcoming had the appellant been
legally represented at the time. This much was conceded by the
appellant’s counsel. Thus, this ground is also without merit.







[8] It has
frequently been stated in this Court that the sentence which the
trial court imposes on an accused person lies within the discretion
of such court and only where justice requires interference by a Court
of appeal, should the Court interfere with the sentence imposed by
the trial court.
1
This would normally
be the case where it is evident that the trial court did not exercise
its discretion in accordance with judicial principles and that it has
misdirected itself on facts material to sentencing. It will also be
inferred that the trial court acted unreasonable if there is a
striking disparity between the sentence passed by that court and the
sentence this Court would have imposed had it sat as court of first
instance.
2
When exercising its
discretion the sentencing court must consider the purposes of
punishment and endeavour to strike a balance between the interests of
the accused and the interests of society, in relation to the crime
itself, and in relation to the objectives of punishment. Should the
trial court fail to do so, the appeal Court will be entitled to
interfere with the sentence imposed.







[9] In the present
instance the court
a
quo’s
reasons
on sentence covers more that twelve pages of the record in which
consideration was given to every factor relevant to sentence in this
case. The
triad
of
factors consisting of the personal circumstances of the appellant,
the crime committed and the circumstances under which it was done,
and the interests of society were duly considered and weighed up
against one another as the court was required to do. Each and every
aspect of the appellant’s personal circumstances were dealt
with and considered by the court and it was not contended that any
misdirection was committed in this regard. Appellant however took
issue with the trial court’s evaluation of the offence, the
circumstances under which it was committed and the weight given
thereto – particularly as far as the appellant has acted under
provocation and that the offence was not planned; which, so it was
argued, constituted mitigating factors. It was also submitted that
the injury the appellant sustained during the incident ought to have
been considered to be a further mitigating factor.







[10] The trial court accepted the
appellant’s version of the events which took place in the
deceased’s room and the kitchen area as there was nothing to
controvert it. According to that, the appellant came under attack
from his father who first tried to stab him with a spear; then struck
him with the flat side of a panga injuring him on his thumb and
forehead; and thereafter hit him with a knobkierie on the arm, ribs
and back. It was after he managed to overpower and disarm his father
that he struck the deceased, who was down on the ground, with the
knobkierie on the head and ribs until he was stopped by Lazarus
Shapaka. The court rejected the appellant’s defence of private
defence and convicted him of murder on the basis that he acted with
intent in the form of dolus eventualis.







[11] Although the appellant came under
attack from his father as described above, the incident must be
viewed in context with the circumstances that gave rise thereto
namely, that the appellant entered his parents’ home after
midnight and quite disrespectfully woke his mother and thereafter his
father, to enquire about their identification cards. In addition
thereto he told his father that he would be taking the children the
following day to buy them shoes; something the deceased did not
approve of and which clearly annoyed him. From the remarks made by
the deceased and the grounds raised in the appellant’s notice
it would seem that the appellant was intoxicated at the time, which
could only have contributed to the agitation of the deceased. It is
evident that the situation now complained of by the appellant, was
created by himself and although the assault perpetrated on him,
despite the circumstances, was unlawful, he cannot claim to be an
innocent victim for he is the maker of his own misfortune. Hence, I
do not consider the appellant to have been provoked to the extent
where it should count in his favour as a mitigating factor. Despite
the trial court not having dealt specifically with this point in the
sentence, it seems obvious that the court a quo did not
consider that to be a factor relevant to sentence which, in the
circumstances of this case, cannot be seen to be a misdirection.







[12] As for the injury inflicted on
the appellant during the scuffle between him and the deceased, it is
clear that the injuries were not serious and on the appellant’s
own evidence, did not require immediate medical attention. The court
found that “the assault was not severe and that it is
basically why accused did not go to the hospital despite that he was
advised to go to the hospital.”
The injuries sustained by
the appellant are indeed not serious and lacks importance when
determining punishment.







[13] It was
contended that the offence was not pre-meditated and therefore should
be considered to be a mitigating factor. I disagree. The fact that
the appellant did not plan the commission of the offence cannot
per
se
be
seen to be a mitigating factor, for all that it says, is that it is
not an
aggravating
factor,
as
he has acted in the spur of the moment in a situation that was
self-created. There is no merit in this contention and the sentencing
court’s omission to deal with this aspect in the sentence does
not constitute a misdirection.







[14] It was
generally argued that the court
a
quo
over-emphasised
the seriousness of the offence at the expense of the appellant’s
personal circumstances, thus failing to strike a proper balance
beween the general principle applicable to sentence as the court was
required to do.
3
The reasons
advanced by the court when sentencing, however, show otherwise. The
principles enunciated in the oft cited cases of
S
v Zinn
4;
S v Van Wyk
5
and S
v Tjiho
6
were properly
applied to the facts and the circumstances of the case by the court
a
quo,
and
I am unable to fault the court therein. The court considered the
offence to be serious and one that was prevalent throughout the
country. The seriousness of the offence and whether or not it was
prevalent in the court’s jurisdiction or generally, are factors
which must be given sufficient weight at the stage of sentencing and
are considered to be aggravating. Hence, in the present instance the
court was entitled, as it did, to take that into account. I
furthermore find myself unable to disagree with the court’s
finding that the offence committed by the appellant was horrifying,
cruel, brutal and displayed an act of barbarism; particularly if
regard is had to the fact that it was perpetrated against his own
flesh and blood with complete disregard for the advanced age of his
victim. The assault took place at a time when his father was down on
the ground, posing no threat to the appellant. He notwithstanding,
lodged a vicious attack on his vulnerable victim directing several
blows to the head and upper body, thereby fracturing a number of ribs
and deforming the deceased’s face to the extent that the one
eye was dislodged from the eye-socket. The deceased’s daughter
described this as unbearable to look at and that the deceased’s
whole face was covered in blood. The appellant continued with the
assault up to the stage where he was stopped by someone else. These
are all aggravating factors which must be given sufficient weight and
which have to be reflected in the punishment meted out by the court.







[15] Regard was had to the interests
of society and that the sentence that were to be imposed, should
reflect society’s indignation and that a deterrent sentence was
called for. The court ultimately came to the conclusion that the
aggravating circumstances outweighed the mitigating factors and that
a custodial sentence was inevitable. Due consideration was given to
the age of the appellant, being twenty-seven years, and the prospects
of rehabilitation whilst serving his sentence. Also the period the
appellant was in custody pending the finalisation of the trial was
taken into account and that he has shown a sense of contrition.







[16] It was
furthermore contended that the court did not consider the possibility
of a partly suspended sentence. However, the court
did
consider the
imposition of a suspended sentence in view of the appellant’s
request, but found itself unable to adhere thereto. To now argue that
the court only considered the imposition of a totally suspended
sentence and not also a partly suspended sentence, is optimistic. If
the court applied its mind to the possibility of a suspended
sentence, why would it only consider a wholly suspended sentence and
not also a partly suspended sentence? The fact that the court decided
against the imposition of a suspended sentence – albeit wholly
or partly – does not support counsel’s submission that it
was not at all considered. Neither can it be seen as lacking the
showing of mercy when sentencing, as was contended.







[17] In my view,
the appellant failed to show that the trial court misdirected itself
in exercising its judicial discretion when sentencing the appellant
to fifteen years imprisonment by either misdirecting itself on facts
material to sentencing or on legal principles relevant thereto.
Whereas I do not consider the sentence to be startlingly
7
or disturbingly8
inappropriate,
there is no reason for this Court to interfere with the sentence
imposed. Accordingly, there are no prospects of success on appeal
against sentence.



















[18] In the result, the Court makes
the following order.








  1. The Notice of Appeal dated 11 July
    2011 is struck.



  2. The application for condonation is
    refused.



  3. The matter is struck from the roll.
















____________________________



LIEBENBERG, J







I concur.







___________________________



TOMMASI, J



























































ON BEHALF OF THE APPELLANT Ms. F.
Kishi







Instructed by: Kishi Legal
Practitioners







ON BEHALF OF THE RESPONDENT Mr. L.
Matota







Instructed by: Office of the
Prosecutor-General







1S
v Tjiho,
1991 NR 362 (HC)




2S
v Van Wyk,
1993 NR 426 (HC) at 447G-H




3S
v Van Wyk (supra)




41969
(2) SA 537 (A)




5(Supra)




6(Supra)




7S
v Ivanisevic and Another,
1967 (4) SA 572 (A) at 575




8S
v letsolo,
1970 (3) SA 476 (A) at 477