REPUBLIC
OF NAMIBIA

HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

APPEAL
JUDGMENT

CASE
NO: CA 24/2016

DATE:
9 SEPTEMBER 2016

NOT
REPORTABLE

In
the matter between:

AMON
KALUWA..............................................................................................................APPELLANT

vs

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

Neutral
citation: Kaluwa v State (CA 24-2016) [2016] NAHCMD 259 (09
September 2016)

Coram:
SIBOLEKA J and USIKU J

Heard
on: 12 August 2016

Delivered
on: 09 September 2016

Flynote:
Criminal law: Sentence – theft of motor vehicle –
penalty regulated by section 15(1)(c)(i) first offender –
period of not less than ten years without an option of a fine.

Summary:
The appellant and a certain Alexander Cloete stole a blue 2.2
Toyota bakkie at the Single Quarters, after a potential buyer they
took there has shown interest in it. The incident was reported to all
officers from the Police Radio Control Room. Those who were doing
patrol immediately got into action, checking around and found it at
Royal Hotel.

Held:
The swift police action to recover the stolen vehicle was without any
assistance from the appellant.

Held:
The sentence is in accord with the penalty provisions.

ORDER

In
the result I make the following order:

The
sentence of the trial Court is confirmed.

The
appeal is dismissed.

APPEAL
JUDGMENT

SIBOLEKA
J (USIKU J concurring):

[1]
At the hearing of this appeal, Mr. Ipumbu acted for the appellant and
Mr. Kumalo for the respondent.

[2]
The appellant appeared in the Regional Court, Windhoek charged with
the theft of a motor vehicle read with the provisions of Act 12 of
1999. He pleaded not guilty and after the trial, he was convicted as
charged, and sentenced to: Ten (10) years imprisonment two (2) years
of which were suspended on condition that he was not convicted of
theft of a motor vehicle in contravention of section 2(a)(i) of Act
12 of 1999, as amended by Act 17 of 2004, committed during the period
of suspension. He appeals only against sentence.

[3]
The respondent raised a point in limine saying the appeal was
filed five months out of time. The explanation of the appellant is to
the fact that he paid an amount of N$3 000 to his initial counsel
with instructions to proceed with the appeal. He was not aware that
the instruction was not carried out, hence the delay in filing the
notice of appeal. The court condoned the late filing of the appeal
and both counsel proceeded to argue the matter on merits.

[4]
The grounds of appeal are as follows:

“If
a court is satisfied that substantial and compelling circumstances
exist which justify the imposition of a lesser sentence than the
sentence prescribed in paragraph (c), (d) or (e) of subsection 10, it
shall enter those circumstances on the record of the proceedings and
may thereupon impose such lesser sentence”.

The
trial Court was misdirected, in the alternative, had made
contradictory findings as follows:

“Prior
to his release on bail accused spent (18) months in custody and as
such the Court would consider that in his favour, and this is the
only factor found by the Court which can then entitle this
court to suspend portion (sic) of the sentence it will impose on
accused. Other mitigating circumstances will also be considered. The
fact that the court did not find any substantial and compelling
circumstances, it does not automatically follow that ordinary
mitigating factors must be ignored”.

[5]
Here is how the blue 2.2 Toyota bakkie N62346W was recovered after
being stolen:

While
Stephanus Gonteb and other police officers were doing patrol duties,
the Police Radio Control Room announced and informed all officers
that a blue 2.2 Toyota bakkie N62346W was stolen at the Single
Quarters after a potential buyer they took there to view it, showed
an interest in the vehicle. They instantly started driving around and
spotted the vehicle at Royal Hotel. An ambush was put in place and
two men and a woman came to board it. The officers closed in on them
and effected an arrest on Alexander Cloete whom they found behind the
steering wheel. He told and directed them to the residence of the
appellant who confirmed to the officers that they were together at
the time they stole the said vehicle. It is abundantly clear from the
above set of fact that it was solely as a result of swift, precise
police action that the stolen vehicle was recovered, the appellant
arrested and successfully prosecuted for the theft thereof.

[6]
It is therefore my considered view that the trial Court correctly
stated the law when it ruled that the 18 months the appellant stayed
in custody before being released on bail was the only factor
entitling it to suspend portion of the sentence imposed on the
appellant. The appellant did not assist in anyway towards the
recovery of the vehicle.

[7]
It is my considered view that the sentence imposed on the appellant
is in accord with the penalty provided for in sec. 15(1)(c)(i) of Act
12 of 1999 as amended by Act 17 of 2004.

[8]
In the result I make the following order:

The
sentence of the trial Court is confirmed.

The
appeal is dismissed.

A
M SIBOLEKA

Judge

D
N USIKU

Judge

APPEARANCES

APPELLANT
: Mr. T. Ipumbu

Directorate
of Legal Aid

RESPONDENT
: Mr. P. S. Kumalo

Office
of the Prosecutor-General, Windhoek