CASE
NO. CA 163/2005

NOT
REPORTABLE

IN THE HIGH COURT
OF NAMIBIA

In the matter
between:

THE
STATE
APPELLANT

and

SGT. LAWRENCE N
MUJIWA RESPONDENT

CORAM: HOFF,
J et NDAUENDAPO,
J

Heard
on: 2009.04.03

Delivered
on: 2009.04.03 (Ex
tempore)

___________________________________________________________________________

JUDGMENT

HOFF,
J.: [1] This is
an appeal by the State against the conviction and sentence imposed in
the magistrate’s court for the district of Gobabis. The
respondent in this matter initially charged with the offence of
assault with intent to do grievous bodily harm was at the end of the
trial convicted of common assault and sentenced to a fine of N$100.00
or ten days imprisonment. It is against this conviction and sentence
that the appeal lies.

[2] Ms Jacobs who
appears on behalf of the appellant in this matter submitted that the
evidence presented in the court a quo
proved that the offence of assault with intent to do grievous bodily
harm was in fact committed by the respondent in this matter. And
furthermore that the sentence imposed is startingly inappropriate and
should be amended. Mr Mbaeva who appears on behalf of the respondent
in this matter submitted to the contrary namely that the evidence
presented the court a quo
did not prove the commission of the offence of assault with intent to
do grievous bodily harm, and submitted that the sentence imposed was
an appropriate sentence.

[3] It is common cause
that in the court a quo
the complainant testified in respect of the assault on her by the
respondent to the effect that she received two blows to her face by
means of a fist of the appellant that she fell down and that she was
thereafter kicked all over her body. A second witness was called by
the State who confirmed that she saw the injuries the next day on the
face of the complainant and that she saw a swelling on the cheek of
the complainant.

[4] A medical report was
also handed in which indicated two haemathoma on the face of the
complainant. The respondent, in the face of this evidence, elected
not to testify. Initially the respondent pleaded guilty to the crime
of common assault in that he had only slapped the complainant once in
her face. The failure of the respondent to testify in the court a
quo meant that the evidence presented on
behalf of the State remains uncontradicted and this Court therefore
finds that the assault perpetrated on the complainant consisted of
two blows to the face of the complainant as well as some kicking all
over her body. The question however is whether that constitutes
assault with intent to do grievous bodily harm. This Court is of the
view that having regard to the injury sustained that such an assault
did not constitute assault with intent to do grievous bodily harm but
constituted the crime of common assault.

[5] Regarding the
sentence imposed in the court a quo
this Court is of the opinion that there is merit in the submission by
Ms Jacobs on behalf of the appellant that having regard to the
circumstances under which this offence was committed that the
sentence imposed is startlingly inappropriate. The factors that the
court a quo should
have taken into account was the fact that the victim, the complainant
in this matter, was a female; that the perpetrator was a male and it
was not disputed that the victim the complainant was puny person and
the respondent in this matter much stronger person. However the fact
that the assault was perpetrated by a male person on a female person
in my view increases the moral blameworthiness of the perpetrator.
Secondly another factor which in my view should be taken into
consideration in considering an appropriate sentence is the fact that
at the time of the commission of the offence respondent was a police
officer and that the offence was committed furthermore in public in
full view of inmates and other members of the police force. Having
regard to the circumstances of this case an appropriate sentence does
not warrant a direct term of imprisonment but as was imposed in the
court a quo a fine
with an alternative term of imprisonment.

[6] This Court is of the
view that an appropriate sentence in the circumstances is a fine of
N$800.00 or eight months imprisonment, and such fine is then now
imposed on the respondent. This fine is imposed despite the fact
that the respondent might have paid the previous fine imposed or
might have serve the previous sentence of imprisonment.

[7] In the result
therefore the conviction in the court a quo
is confirmed but the sentence is set aside and substituted with the
sentence pronounced by this Court.

____________

HOFF, J.

I agree

__________________

NDAUENDAPO, J

ON BEHALF OF
APPELLANT: ADV. JACOBS

Instructed by:
OFFICE OF THE PROSECUTOR-GENERAL

ON BEHALF OF
RESPONDENT: MR MBAEVA

Instructed by:
MBAEVA & ASSOCIATES