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HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

APPEAL JUDGMENT

Case no: CA 22/2016

DATE: 22 JULY 2016

In the matter between:

WAMUNYIMA ENGELS SIMATA.................................................................................APPELLANT

And

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

Neutral citation: Simata v State (CA 22-2016) [2016] NAHCMD 215 (22 July 2016)

Coram: SIBOLEKA J and USIKU J

Heard: 10 June 2016

Delivered: 22 July 2016

Flynote: Appeal against sentence – appellant convicted of theft (by false pretence)-Court called upon to consider whether the magistrate committed an irregularity by not affording him the option of a fine- Magistrate did not error in exercising her discretion.

ORDER

In the result, the appeal dismissed.

APPEAL JUDGMENT

USIKU J, (SIBOLEKA J)

[1] The appellant was charged with theft under false pretences, which he pleaded guilty to on the 2^nd October 2015 and to which he was subsequently sentenced to 36 months imprisonment of which 12 months was suspended for a period of five months on condition that the now appellant is not convicted of theft under false pretences committed during the period of suspension.

[2] He now appeals against the sentence.

[3] Appellant in this matter misrepresented an elderly woman, who suffered an actual loss of N$ 4 500.00 of which only N$ 1000.00 was recovered, the remaining N$ 3 500 remains unrecovered. This crime can be explained best by S v Vekueminina and others[1], wherein the Honourable court held:

“where the nature of the offence arouses moral indignation and the purpose of the penalty is clearly retributive, the interests of the accused are than secondary to those factors. The ability of the accused personally to pay the fine does not arise”.

[4] The appeal court is entitled to interfere with a sentence in the following instances as provided for in S v Tjiho[2] , as follows:

a) The trial court misdirected itself on the facts or on the law.

b) An irregularity which was material occurred during the sentencing proceeding

c) The trail court failed to take into account material facts or overemphasized the importance of other facts.

d) The sentence imposed is startlingly inappropriate, induces a sense of shock and there is a striking disparity between the sentence imposed by the trial court and that which would have been imposed by a court of appeal.

[5] The purported grounds of appeal on which the appellant relies are not reasonable grounds as per S v Tjiho (supra), in the same vain it is apparent that the personal circumstances of the appellant, as well as the nature of the offence and the interest of society where taken into consideration in determining the sentence of the appellant.

[6] It is than apparent to me having regard to the principle in S v Vekueminina and others^[3], that the appellant failed advance compelling arguments. In principle the appeal court can only alter a sentence when it is satisfied that the trial court has not exercised its discretion judicially and properly.

[7] In the result the appeal is dismissed.

DN USIKU

Judge

A SIBOLEKA

Judge

APPEARANCES

APPELLANT: Mr Wamunyima Engels Simata

Windhoek Central Prison: Inmate

RESPONDENT: Mr J T Kuutondokwa

Office of the Prosecutor-General, Windhoek

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