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CASE NO.: CA33/2009

IN THE HIGH COURT OF NAMIBIA

HELD AT OSHAKATI

In the matter between:

MATHJEW SHIKOLOLYE MOSES APPELLANT

and

THE STATE RESPONDENT

CORAM: LIEBENBERG J & TOMMASI J

Heard on: 7 June 2010; 05 July 2010

Delivered on: 30 July 2010

APPEAL JUDGEMENT

TOMMASI J: [1] This is an appeal against the sentence imposed in the Magistrate’s Court sitting at Oshakati on 8 February 2007. Mr Greyling appeared amicus curiae for the Appellant and Mr Shileka appeared for the Respondent.

[2] The Appellant was charged with robbery with aggravating circumstances and sentenced to five (5) years imprisonment.

[3] The Appellant noted his “Notice of Appeal” in the form of a letter. This court interpreted the letter in a manner upholding its validity as a notice of appeal so that the merits of the matter may be dealt with and the appeal may be disposed of.

[4] When this matter first came before this Court on 7 June 2010, the trial Magistrate did not furnish his reasons and the matter was adjourned in order for him to comply with the requirements in terms of Rule 67 of the Magistrate’s Court. The Magistrate provided his reasons on 8 June 2010. The reasons were as follow:

“The court had in mind to oppose (sic) 5 months imprisonment, but not 5 years. It is therefore with humbly (sic) request that the sentence be changed to read 5 months. However, all in all the court leave it in the hands of the Honorable Judge to decide on the appropriate sentence as the offence committed remain serious and prevalent in the district of Oshakati and country wide”

[5] There has been a general failure by the trial Magistrate to comply with the provisions of Rule 67 of the Magistrate’s Court in that the reasons were not provided within the time frame provided for and it does not constitute “reasons” as envisaged. In addition to this the trial Magistrate conceded to have misdirected himself. Such conduct discredits the administration of justice. The above “reasons” clearly is of no assistance to this Court and the sentence in the court a quo was equally brief and reads: “Sentence: 5 years imprisonment.

[6] I am in full agreement with the submission made by counsel for the Respondent that the dictates of justice require of the presiding judicial officer to inform the accused of his reasons for sentencing i.e which factors he took into consideration in arriving at his decision.

[7] The subsequent reasons made no mention of the personal circumstances of the Appellant and only alluded to the seriousness of the crime, the prevalence thereof in the district and in the country. The concession made by the trial Magistrate that he made a mistake, is a clear indication that he did not apply his mind in a judicial manner when he sentenced the Appellant.

[8] This Court is satisfied, in the absence of real reasons by the trial Magistrate, that a vitiating irregularity occurred and that a failure of justice has in fact resulted from such irregularity.

[9] Given the above, this Court is at liberty to consider what sentence should be passed in place of that of the court a quo.

[10] The appellant admitted to taking N$350.00 from the complainant by force. They were both gambling and were arguing over the winnings. He knew that the complainant was the winner and saw him putting the money in his pocket. He later grabbed and “scratched” the complainant with a screw driver causing an open wound. He then took the money from the complainant. He did not dispute taking the complainant’s belt and some keys from him.

[11] The Appellant testified under oath in mitigation that: he was 36 years old; the father of 4 children aged twelve (12), nine (9), five (5) and two (2) years respectively; three of the children were attending school; two of the children were living with the biological mother and two living with their grandmother; the mother of the children was not employed; he was the sole provider for his family; and he was a part time constructor. He indicated to the court a quo that he was able to pay a fine and that he owned 16 goats. The Appellant asked for forgiveness and indicated that he would not do it again. The Appellant is a first offender.

[12] The abhorrent nature of the crime is well described in the matter of S v PAULUS an unreported case (CA 114/98) as follow:

“Robbery is indeed a serious crime. The perpetrators prey on the innocent and industrious society. Like parasites of society they forcibly satisfy their needs and greed by living off the hard-earned income and assets of others. Like cowards, they, more often than not, use dangerous weapons to threaten or assault their unarmed and unsuspecting victims into submission”

[13] The Appellant used a screw driver and inflicted an open wound to an unsuspecting victim in order to force him into submission. The value of the items taken from the victim becomes meaningless if one considers that lives have been lost in instances where victims resist.

[14] It is indeed so that society expects the courts to act in its interest by “steadfastly, impartially and fearlessly announce to the world in unambiguous terms it’s utter repugnance and contempt of such conduct. (a freehand translation from Afrikaans in S v MATOLO EN 'N ANDER 1998 (1) SACR 206 (O) at page 211).

[15] Robbery is indeed becoming a prevalent crime in Namibia and is, as described by Namanjde AJ, Swanepoel, A J, as he then was, concurring, in an unreported judgment BERNARD GAROEB CASE NO: CA 101/2007 on page 14 ,:

“The scourge of crime from which the majority of people of Namibia have been suffering from in recent times can only be effectively combatted through appropriate sentences by courts of law for purposes of expressing revulsion of the Namibian people at crimes.”

[16] This Court would be amiss if it does not consider the factors in mitigation. The Appellant is a 36 year old first offender who indicated his remorse to the court a quo. He is the sole breadwinner and his children are still young. These circumstances however weigh too light when balancing it with the abhorrent nature of the crime and the interest of society. Mr Greyling, counsel for the Appellant correctly submitted that the imposition of a fine would be inappropriate.

[17] When considering the appropriate term of the custodial sentence this Court must be guided mainly by the sentences sanctioned or imposed by this Court in similar cases bearing in mind the factual differences.

[18] In S v PAULUS (supra) the Accused robbed his victim by threatening him with a knife and removing N$274.00 from his pocket. The review court imposed a sentence of three (3) years imprisonment of which two years were suspended for five (5) years

[19] In S v KASTOOR 2006 (2) NR 450 (HC) the Appellant formed part of a group of five persons who threatened the complainant with knives and a pistol before they took his bicycle. The Appellant had previous convictions. The Appeal court sentenced the Appellant to imprisonment of eight (8) years of which three (3) years were suspended.

[20] In S v GAROEB AND ANOTHER (supra) the Appellant, one of two accused, robbed the complainant of N$500.00 by holding his arms behind his back and removing the money from his pockets. The appellant “had a terrifying record of criminal inclination”. The appeal court found that the Appellant had no prospect of success in his appeal against sentence. The sentence imposed by the court a quo was five (5) years imprisonment

[21] In the result the Court makes the following order:

1. The appeal against sentence succeeds and the sentence of 5 years' imprisonment imposed by the magistrate is set aside.

2. In substitution thereof, the appellant is sentenced to imprisonment of three (3) years and five (5) months.

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TOMMASI J

I agree

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LIEBENBERG J

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