Gerevasio v S (CA 19/2017) NAHCNLD 97 (28 September 2017);

Group

Full judgment

NOT REPORTABLE

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI

 APPEAL JUDGEMENT

                                                                                                             Case No.: CA 19/2017

In the matter between:

KAUFIWONGALI GEREVASIO                                                                 APPELLANT

and

THE STATE                                                                                                RESPONDENT

Neutral citation: Gerevasio v S (CA 19/2017) [2017] NAHCNLD 97 (28 September 2017)

 

Coram:          TOMMASI, J  and JANUARY, J

Heard:           17 August 2017

Delivered:     28 September 2017

 

Flynote: Criminal Procedure – Appeal – Sentence – Robbery – Reduction of sentence – Fine – Inappropriate.

Summary: The appellant was convicted of robbery and sentenced to two years’ imprisonment.  While the complainant was walking at a place called Sky Bridge in Oshakati two assailants approached her.  One of them grabbed her on the arm twisted the arm, beat her on the forehead with a fist and tripped her down. The appellant grabbed her cellphone, N$2 000 from her hand and ran off.  She positively identified the appellant as the person who grabbed the cellphone from her hand.


ORDER


1.      The appeal is dismissed.


APPEAL JUDGEMENT


JANUARY J (Tommasi, J Concurring)

[1]        The appellant was convicted in the Oshakati Magistrates court for robbery after he pleaded not guilty.  He now appeals against a sentence of two years’ imprisonment.  He appears in person and does not advance any particular ground of appeal.

[2]        The appellant only submits that his sentence should be reduced and he prays for a fine of N$200 in order for him to resume his employment as a builder.  He submits that he will never buy something in the street again; that he is a father and that he is currently unemployed.

[3] The personal circumstances of the appellant are that he is not married.  He has two children.  He stated in mitigation that he is employed and earns a salary of N$1 500 contrary to what he alleges in his notice of appeal that he is unemployed.  He further stated in mitigation that he cannot afford to pay a fine because he is still on holiday and has not started working yet at a construction site.  The appellant is a first offender.

[4]        The appellant alleged that he just bought the cellphone from a guy that he knew.  He was however trying to sell the cellphone the day after the robbery.  A Police Officer pretending to be a buyer approached the appellant and seized the cellphone after the complainant identified it.

[5]        The Learned Magistrate considered correctly that robbery is a serious and prevalent offence. He sentenced the appellant as a first offender and considered the personal circumstances of the appellant.  The complainant lost her handbag with another cellphone, her ID card, an FNB Bob card, N$300 in cash, a watch worth N$400, a necklace and earrings.  Only the cellphone which the appellant had and her ID card were recovered.  The Magistrate, correctly in my view, found that the appellant showed no remorse.

[6]        It is trite law that sentencing is pre-eminently within the discretion of the trial court. This court of appeal has limited power to interfere with the sentencing discretion of a court a quo. A court of appeal can only interfere;

·    when there was a material irregularity; or

·    a material misdirection on the facts or on the law; or

·    where the sentence was startlingly inappropriate;

·    or induced a sense of shock; or

·    was such that a striking disparity exists between the sentence imposed by the trial Court and that which the Court of appeal would have imposed had it sat in first instance in that;

·    irrelevant factors were considered and when the court a quo failed to consider relevant factors.1

[7]        I do not find any misdirection by the Learned Magistrate.  He respectfully exercised his sentencing discretion judiciously.

 [8]       In the result:

The appeal is dismissed.

           

_________________________

                                                                                                H C JANUARY

                                                                                                JUDGE

                                                                                               

 

                                                                                                I Agree

 

 

                                                                                                __________________________

                                                                                                M A TOMMASI

                                                                                                JUDGE

 

Appearances:

For the Appellant:                            In Person

                                                         Of Oluno Correctional Facility

For the Respondent:                       Adv Tjiveze

                                                         Of Office of the Prosecutor-General


1 S v Kasita 2007 (1) NR 190 (HC); S v Shapumba 1999 NR 342 (SC) at 344 I to 345A; S v Jason & another 2008 NR 359 at 363 to 364G

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