Nepunda v The State (HC-NLD-CRI-APP-CAL-2019/00020) [2020] NAHCNLD 50 (07 May 2020);

Group

Full judgment

REPUBLIC OF NAMIBIA

IN THE HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION

HELD AT OSHAKATI

 

APPEAL JUDGMENT

 

Case Title:

Erickson Hilinganye Nepunda v The State

 

Case No.: HC-NLD-CRI-APP-CAL-2019/00020

 

Division of Court:

Northern Local Division

Heard before: 

Honourable Mr Justice January J et

Honourable Ms Justice Salionga J

Heard on : 21 January 2020

Delivered on:  07 May  2020

 

Neutral citation:  Nepunda v S  (HC-NLD-CRI-APP-CAL-2019/00020) [2020] NAHCNLD 49  (07 May  2020)

 

 

IT IS ORDERED THAT:

 

1.          The appeal against sentence is dismissed;

2.          The matter is removed from the roll and considered finalized.

 

 

Reasons for order:

 

Salionga J (January J concurring):

 

[1]        The appellant was convicted in the Magistrates Court sitting at Eenhana on a charge of housebreaking with intent to steal and theft. The value involved was N$ 821 and nothing of the stolen items were recovered. He was subsequently sentenced to 48 months imprisonment on 15 February 2018. The appellant had a previous conviction of housebreaking with intent to steal and theft.

[2]        Dissatisfied with the sentence imposed, the appellant filed a notice of appeal against the sentence on 16 April 2018 and simultaneously filed an application for condonation of his late filing of the notice of appeal.

[3]        The appellant appeared in person and the respondent was represented by Mr Andreas during the hearing of this appeal.

[4]        At the hearing, Mr Andreas for the respondent did not raise any point in limine but continued to address the court on the merits of the matter. He submitted that the appellant failed to point out any misdirection committed by the trial court when it imposed the sentence. Further that there is no legal basis upon which the appeal court was to interfere with the sentence of the trial court. He maintained that the sentence was in line with sentences imposed in other related cases, that excessive force was used to break in and that the appellant was not a first time offender.

[5]         On his part the appellant felt that the Magistrate failed to consider his mitigating circumstances and that the sentence imposed was harsh. As a result he prayed for the sentence to be reduced.

[6]          It is now evident from the settled rule of practice that the appeal court will not readily interfere with the sentence imposed by the trial court and that the issue of sentencing falls squarely within the discretion of the trial court.  In S v Tjiho 1991 NR 361(HC) it was stated that the trial court must exercise its discretion in accordance with judicial principles. The court of appeal can only interfere if discretion was not exercised judiciously. It was further held that the court of appeal should be reluctant to erode trial courts discretion as such erosion would undermine the administration of justice. These principles were reiterated in S v De Jagger and Another 1965 (2) SA 616 AD et 629 where the court held that: ‘if a magistrate has passed a sentence within his jurisdiction and has not misdirected himself on the law and has duly considered the relevant facts, the supreme court will not interfere unless the sentence is so severe as to be unjust and the accepted test for determining this is now for the appeal court to enquire whether the sentence is so severe as to give it a sense of shock.’

[7]         The appellant failed to lay a basis upon which the appeal court was to interfere with the sentence of the court a quo. There was no merit in the submission that the Magistrate failed to take into account the appellant’s personal circumstances. From a reading of the trial court’s judgement on sentence it is evident that a balance was struck between the interests of the appellant, the seriousness of the crime and the circumstances under which the offence was committed; whilst bearing in mind the interests of society. In this regard it can only be concluded that the trial court was in a much better position than the appeal court as it stooped in the atmosphere of the case.

[8]       Surely the offence of housebreaking with intent to steal and theft is one that attracts custodial sentences. S v Drotsky 2005 NR 487 (HC) at 487H-J is an authority in that regard, where the court held; ‘The crime of housebreaking with intent to steal and theft is a prevalent and serious one. It is regarded by the law and society as a particularly insidious form of theft. It is said that a man’s home is his castle. If there is one place where a person should feel safe and secure it is in his home. Housebreaking with intent to steal and theft strikes at and destroys the sense of safety and security which the occupants are entitled to enjoy. It constitutes an unlawful invasion of the complainant’s privacy and an illegal misappropriation of his or her possessions – sometimes commercially irreplaceable goods of great sentimental value.

For these reasons society has a particular interest that the commission of this crime should be discouraged by an appropriate judicial response. Perpetrators should know that the norm is imprisonment without the option of a fine unless circumstances of a particular case justify the imposition of a lesser sentence.’ We are inclined to follow this approach.

[9]      Considering the above, we found that there was no misdirection or irregularity in this matter. Although the appellant did not break into a home but broke the complainants bar the principle remains the same. The business fraternity play a vital role in the communities and equally needs the protection of the courts. Looting their businesses will not be tolerated. The appellant in casu has a previous conviction of the same offence which is a clear indication that accused had not learned a lesson from the previous sentence he served. Further that there are no particular circumstances justifying the imposition of a lesser sentence and in our view, this appeal is without merit and stands to fail.           .

[10]         In the result:

  1. The appeal against sentence is dismissed;

  2. The matter is removed from the roll and considered finalized.

 

Judge(s) signature

Comments: 

Salionga J:

None

January J:

None

                                                                   Counsel:

Appellant

Respondent

Mr Erickson Hilinganye Nepunda- In Person

Oluno Correctional Facility

Mr J Andreas

Office of the Prosecutor General, Oshakati

 

Download