CASE NO.: CA 34/2007

IN
THE HIGH COURT OF NAMIBIA

In the matter between:

NIKANOR
MBARANDONGO APPELLANT

and

THE STATE RESPONDENT

CORAM: DAMASEB,
J.P et
MANYARARA, AJ.

Heard on: 2008.09.19

Delivered: 2008.08.19

________________________________________________________________________

APPEAL JUDGMENT

DAMASEB, J.P.:

[1] We are dealing here with
an appeal against sentence. The appellant was found guilty a
quo of housebreaking
with intent to steal and theft. He pleaded not guilty and he was
tried, found guilty and sentenced to a direct term of two years
imprisonment.

[2] He then lodged an appeal
against that sentence and strenuously maintained that he should have
been given an option of a fine instead of a direct term of
imprisonment. He repeated the same request to us this morning during
the hearing of his appeal.

[3] The appellant was accused
of stealing property valued at N$8 985.00 from a neighbour. Counsel
for the State has correctly pointed out that the trial court took
into account the personal circumstances of the appellant and also the
fact that he had a previous conviction of housebreaking with intent
to steal and theft for which he was sentenced to two years
imprisonment with the option to pay a fine. It was while out on that
offence that he committed the offence for which he was subsequently
tried, found guilty and sentenced and now before us on appeal. Very
few of the stolen goods were recovered.

[4] The basis on which we can
interfere with the sentence is very clear: the Magistrate should have
committed a misdirection, either in the way he approached the
sentencing procedure or in taking into account irrelevant
considerations or failing to take into account relevant
considerations. No such misdirection on the part of the magistrate
has been demonstrated to us and, as a Court of Appeal, even if, had
we said at first instance we would have imposed a different sentence,
that would not have entitled us to interfere with the sentence
imposed by the magistrate. We could only do so if the sentence was
startlingly disproportionate or induced a sense of shock: none of
that is demonstrated on the facts of this case.

[5] The Appeal against
sentence is dismissed.

________________

DAMASEB, JP

I agree.

_________________

MANYARARA, AJ

ON BEHALF OF APPELLANT
IN PERSON

Instructed by:

ON BEHALF OF DEFENDANT
MS H JACOBS

Instructed by: OFFICE OF
THE PROSECUTOR-GENERAL