Haneb and Another v S (HC-MD-CRIMINALI-APP-CAL 9 of 2017) [2018] NAHCMD 125 (11 May 2018);
"ANNEXURE 11"
IN THE HIGH COURT OF NAMIBIA
(TO THE SUPREME COURT OF NAMIBIA)
Case Title: JOHANNES HANEB 1sr APPELLANT RICHARD USES 2ND APPELLANT versus THE STATE |
Case No.: HC-MD-CRI-APP-CAL-2017/00009 Neutral citation: Haneb v S (HC-MD- CRI-APP-CAL-2017/00009) (2018] NAHCMD 125 (11 May 2018) |
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Division of Court: High Court Main Division |
Tried before: SHIVUTE J et SIBOLEKA J |
Date of Hearing: 11 May 2018 Date of Ruling: 11 May 2018 |
Result on merits (attach order): |
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THE ORDER: 1. The application for condonation for the late filing of the notice of appeal is granted in respect of both appellants. 2. The appeal against sentence in respect of each appellant succeeds. 3. The sentence of 20 years imposed by the Regional Court is set aside and this court is at liberty to sentence each appellant afresh. 4. Each appellant is sentenced to 8 years imprisonment back dated to 12 March 2010. 5. Each appellant had already served 8 years and each should be released forthwith. |
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REASONS FOR DECISION (TO BE COMPLETED BY THE JUDGE): |
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(a) Application for condonation is granted in respect of each appellant. Each appellant had prospects of success on prosecuting the appeal against sentence. (b) Each appellant was sentenced to 20 years imprisonment being the mandatory sentence at the time of sentencing. However, the mandatory sentence was ruled unconstitutional in Daniel v Attorney General and Others 2011 (1) NR 330 (HC) AT 355-356. |
(c) Although the stock that was stolen is worth N$ 1000, the appellants had already served 8 years of their sentence and this is the reason this court sentenced them afresh to 8 years, back dated to 12 March 2010. In any normal circumstances this court would not have sentenced any accused person to 8 years for stock theft worth N$1000. |
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Judge's signature: |
Note to the parties: |
N.N. Shivute: I Concur: A.M.Siboleka: |
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/ Counsel: |
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Mr Kamwi (For the first applellant) Mr Brockerhoff (For the second appellant |
Ms Esterhuizen(For the respondent) |
HC-MD-CRI-APP-CAL-2017/00009
IN THE HIGH COURT OF NAMIBIA, MAIN DIVISION,
HELD AT WINDHOEK
ON FRIDAY, THE 11t h DAY OF MAY 2018 BEFORE THE HONOURABLE JUSTICE SHIVUTE et THE HONOURABLE JUSTICE SIBOLEKA
In the matter between:
JOHANNES HANES 1st APPELLANT
RICHARD USEB 2nd APPELLANT
and
THE STATE RESPONDENT
COURT ORDER
Having heard Mr. Kamwi for the first appellant and Mr. Brock erhoff for the second appellant, and Ms. Ester hui zen, on behalf of the respondent and having read the Application for HC-MD-CRI-APP-CAL-2017/00009and other documents filed of record
IT IS HEREBY ORDERED THAT:
1. The applicatio n for condonation for the late filing of the notice of appeal is granted in respect of both appellants.
2. The appeal against sentence in respect of each appellant succ eeds.
3. The sentence of 20 years imposed by the Regional Court is set aside and this court is at liberty to sentence each appellant afresh.
4. Each appellant is sentenced to 8 years imprisonment back dated to 12 March 2010.
5. Each appellant had already served 8 years and each should be released forthwith.
BY ORDER OF THE COURT
________________
Charlet Mokomele
Registrar of the High Court
Main Division Windhoek
TO:
TREVOR BROCKERHOFF
On behalf of 2nd Appellant
Mbudje & Brockerhoff Legal Practitioners
No. 9 Salk Street. Windhoek West
Windhoek
Khomas Namibia
KALUNDU KAMWI
On behalf of 1st Appellant
Sibeya & Partners Legal Practitioners M2 Floor
Channel Life Building Post Street Mall Windhoek
Namibia
Namibia
AND TO:
KARIN ESTERHU IZEN
On behalf of Respondent
Government - Office of the Prosecutor-General High Court Building Luderitz Street
Windhoek
Namibia
Namibia
AND TO: