NOT REPORTABLE
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.
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ORDER
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The appeal is dismissed.
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APPEAL JUDGEMENT
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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.
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H C JANUARY
JUDGE
I Agree
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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