CASE NO.: CA 58/2009

IN THE HIGH COURT OF NAMIBIA

HELD AT OSHAKATI

In the matter between:

ANDREAS NEHEMIA …........................................................................APPELLANT

and

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

CORAM: LIEBENBERG, J et TOMMASI, J.

Heard on: 18.07.2011

Delivered on: 22.07.2011

APPEAL JUDGMENT

LIEBENBERG, J.: [1] The appellant was arraigned in the Regional Court, Oshakati, on a charge of murder, to which he pleaded guilty. When questioned pursuant to the provisions of section 112 (1)(b) of the Criminal Procedure Act 51 of 1977, the appellant raised the defence of private defence, whereafter a plea of not guilty was entered. The trial commenced and in the end the appellant was convicted as charged and found to have acted with the required intent in the form of dolus eventualis. He was sentenced to fifteen years’ imprisonment.

[2] Appellant noted his appeal out of time and hence, made application for condonation for non-compliance with Rule 67 of the Magistrate’s Court Rules. In a supporting affidavit the appellant advanced reasons explaining the delay, which the respondent considers to be satisfactory and therefore does not oppose the application.

[3] Condonation is also sought for what purports to be an amended notice of appeal but which is titled “Notice of Appeal”, filed with the Registrar of this Court on the 11^th of July 2011 (at 16:48) in which additional grounds are raised. I pause here to observe that the latter notice of appeal reads that the appeal is against conviction and sentence, which appears to be an error as no grounds of appeal were raised therein against conviction. In any event, it is clear from the notice of appeal that the appellant never intended prosecuting an appeal against his conviction. Appellant explains the late noting of the amended notice of appeal (one week before the appeal is to be heard) by saying that when the appeal record was received on the 3^rd of May 2011, he was entitled to amend his notice of appeal but, as his counsel was engaged in another matter at the time and carried a heavy workload, she was unable to note the “amended notice” within the prescribed time limits. I pause here to observe that Ms. Kishi, counsel for the appellant, intimated to the Court that the intention was not to amend the notice, but to note a fresh appeal altogether (despite what has been stated in the appellant’s affidavit). Mr. Matota’s view, appearing on behalf of the respondent, pertaining to the much belated filing of the (second) notice of appeal is that the appeal could be heard on the latter as it includes all the grounds raised in the original notice.

[4] It was however pointed out to counsel that it was bad in law to proceed on the latter notice of appeal in circumstances where the first notice of appeal has not been withdrawn and that there are two different notices before the Court. Counsel for the appellant conceded that it would be improper to proceed on that basis and invited the Court to strike the notice dated 11 July 2011. This course, in my view, would be proper and consequently the latter notice stands to be struck.

[5] Despite the respondent’s stance not to oppose the application for condonation of the late noting of the appeal, the granting of the application remains a matter for the Court to decide and although the explanation advanced for the late noting of the appeal as such may be considered to be reasonable, it remains to be decided whether or not there are prospects of success on appeal. Accordingly, the appeal against sentence was argued before us on the grounds appearing in the original notice of appeal.

[6] These grounds amount to the following: Appellant was unrepresented during the trial and now seems to suggest that, had he been legally represented at the time, the trial court would have imposed a lesser sentence. Furthermore, that in view of the following circumstances, the sentence imposed is unreasonably harsh and unwarranted. (i) The appellant was not the aggressor; (ii) that there were other factors present which might have contributed to the deceased’s death; (iii) the offence was not premeditated and the deceased’s advanced age ought to have been considered a mitigating factor; and lastly, that the appellant has shown remorse. It was also contended that the unprofessional manner in which the investigating officer conducted his investigation should have had some (mitigating) bearing on the sentence the court imposed.

[7] The latter ground is unmeritorious and deserves no further consideration. As for the first ground which relates to legal representation, there is nothing apparent from the record that the magistrate misdirected himself in this regard. On the contrary, not only was the appellant duly informed of his right to mitigation but also assisted by the magistrate to put forward as much as possible facts and information that could assist the court in finding an appropriate sentence; furthermore, when passing sentence these factors were given proper consideration and weighed up against each other as the court was required to do. Not only did the appellant give evidence, but was also invited to call witnesses in mitigation. During appellant’s testimony the magistrate, through proper questioning, guided the appellant to place before the court all relevant facts and information, and I am not persuaded that more information would have been forthcoming had the appellant been legally represented at the time. This much was conceded by the appellant’s counsel. Thus, this ground is also without merit.

[8] It has frequently been stated in this Court that the sentence which the trial court imposes on an accused person lies within the discretion of such court and only where justice requires interference by a Court of appeal, should the Court interfere with the sentence imposed by the trial court.¹This would normally be the case where it is evident that the trial court did not exercise its discretion in accordance with judicial principles and that it has misdirected itself on facts material to sentencing. It will also be inferred that the trial court acted unreasonable if there is a striking disparity between the sentence passed by that court and the sentence this Court would have imposed had it sat as court of first instance.²When exercising its discretion the sentencing court must consider the purposes of punishment and endeavour to strike a balance between the interests of the accused and the interests of society, in relation to the crime itself, and in relation to the objectives of punishment. Should the trial court fail to do so, the appeal Court will be entitled to interfere with the sentence imposed.

[9] In the present instance the court a quo’s reasons on sentence covers more that twelve pages of the record in which consideration was given to every factor relevant to sentence in this case. The triad of factors consisting of the personal circumstances of the appellant, the crime committed and the circumstances under which it was done, and the interests of society were duly considered and weighed up against one another as the court was required to do. Each and every aspect of the appellant’s personal circumstances were dealt with and considered by the court and it was not contended that any misdirection was committed in this regard. Appellant however took issue with the trial court’s evaluation of the offence, the circumstances under which it was committed and the weight given thereto – particularly as far as the appellant has acted under provocation and that the offence was not planned; which, so it was argued, constituted mitigating factors. It was also submitted that the injury the appellant sustained during the incident ought to have been considered to be a further mitigating factor.

[10] The trial court accepted the appellant’s version of the events which took place in the deceased’s room and the kitchen area as there was nothing to controvert it. According to that, the appellant came under attack from his father who first tried to stab him with a spear; then struck him with the flat side of a panga injuring him on his thumb and forehead; and thereafter hit him with a knobkierie on the arm, ribs and back. It was after he managed to overpower and disarm his father that he struck the deceased, who was down on the ground, with the knobkierie on the head and ribs until he was stopped by Lazarus Shapaka. The court rejected the appellant’s defence of private defence and convicted him of murder on the basis that he acted with intent in the form of dolus eventualis.

[11] Although the appellant came under attack from his father as described above, the incident must be viewed in context with the circumstances that gave rise thereto namely, that the appellant entered his parents’ home after midnight and quite disrespectfully woke his mother and thereafter his father, to enquire about their identification cards. In addition thereto he told his father that he would be taking the children the following day to buy them shoes; something the deceased did not approve of and which clearly annoyed him. From the remarks made by the deceased and the grounds raised in the appellant’s notice it would seem that the appellant was intoxicated at the time, which could only have contributed to the agitation of the deceased. It is evident that the situation now complained of by the appellant, was created by himself and although the assault perpetrated on him, despite the circumstances, was unlawful, he cannot claim to be an innocent victim for he is the maker of his own misfortune. Hence, I do not consider the appellant to have been provoked to the extent where it should count in his favour as a mitigating factor. Despite the trial court not having dealt specifically with this point in the sentence, it seems obvious that the court a quo did not consider that to be a factor relevant to sentence which, in the circumstances of this case, cannot be seen to be a misdirection.

[12] As for the injury inflicted on the appellant during the scuffle between him and the deceased, it is clear that the injuries were not serious and on the appellant’s own evidence, did not require immediate medical attention. The court found that “the assault was not severe and that it is basically why accused did not go to the hospital despite that he was advised to go to the hospital.” The injuries sustained by the appellant are indeed not serious and lacks importance when determining punishment.

[13] It was contended that the offence was not pre-meditated and therefore should be considered to be a mitigating factor. I disagree. The fact that the appellant did not plan the commission of the offence cannot per se be seen to be a mitigating factor, for all that it says, is that it is not an aggravating factor, as he has acted in the spur of the moment in a situation that was self-created. There is no merit in this contention and the sentencing court’s omission to deal with this aspect in the sentence does not constitute a misdirection.

[14] It was generally argued that the court a quo over-emphasised the seriousness of the offence at the expense of the appellant’s personal circumstances, thus failing to strike a proper balance beween the general principle applicable to sentence as the court was required to do.³The reasons advanced by the court when sentencing, however, show otherwise. The principles enunciated in the oft cited cases of S v Zinn⁴; S v Van Wyk⁵and S v Tjiho⁶were properly applied to the facts and the circumstances of the case by the court a quo, and I am unable to fault the court therein. The court considered the offence to be serious and one that was prevalent throughout the country. The seriousness of the offence and whether or not it was prevalent in the court’s jurisdiction or generally, are factors which must be given sufficient weight at the stage of sentencing and are considered to be aggravating. Hence, in the present instance the court was entitled, as it did, to take that into account. I furthermore find myself unable to disagree with the court’s finding that the offence committed by the appellant was horrifying, cruel, brutal and displayed an act of barbarism; particularly if regard is had to the fact that it was perpetrated against his own flesh and blood with complete disregard for the advanced age of his victim. The assault took place at a time when his father was down on the ground, posing no threat to the appellant. He notwithstanding, lodged a vicious attack on his vulnerable victim directing several blows to the head and upper body, thereby fracturing a number of ribs and deforming the deceased’s face to the extent that the one eye was dislodged from the eye-socket. The deceased’s daughter described this as unbearable to look at and that the deceased’s whole face was covered in blood. The appellant continued with the assault up to the stage where he was stopped by someone else. These are all aggravating factors which must be given sufficient weight and which have to be reflected in the punishment meted out by the court.

[15] Regard was had to the interests of society and that the sentence that were to be imposed, should reflect society’s indignation and that a deterrent sentence was called for. The court ultimately came to the conclusion that the aggravating circumstances outweighed the mitigating factors and that a custodial sentence was inevitable. Due consideration was given to the age of the appellant, being twenty-seven years, and the prospects of rehabilitation whilst serving his sentence. Also the period the appellant was in custody pending the finalisation of the trial was taken into account and that he has shown a sense of contrition.

[16] It was furthermore contended that the court did not consider the possibility of a partly suspended sentence. However, the court did consider the imposition of a suspended sentence in view of the appellant’s request, but found itself unable to adhere thereto. To now argue that the court only considered the imposition of a totally suspended sentence and not also a partly suspended sentence, is optimistic. If the court applied its mind to the possibility of a suspended sentence, why would it only consider a wholly suspended sentence and not also a partly suspended sentence? The fact that the court decided against the imposition of a suspended sentence – albeit wholly or partly – does not support counsel’s submission that it was not at all considered. Neither can it be seen as lacking the showing of mercy when sentencing, as was contended.

[17] In my view, the appellant failed to show that the trial court misdirected itself in exercising its judicial discretion when sentencing the appellant to fifteen years imprisonment by either misdirecting itself on facts material to sentencing or on legal principles relevant thereto. Whereas I do not consider the sentence to be startlingly⁷or disturbingly⁸inappropriate, there is no reason for this Court to interfere with the sentence imposed. Accordingly, there are no prospects of success on appeal against sentence.

[18] In the result, the Court makes the following order.

1. The Notice of Appeal dated 11 July 2011 is struck.

2. The application for condonation is refused.

3. The matter is struck from the roll.

____________________________

LIEBENBERG, J

I concur.

___________________________

TOMMASI, J

ON BEHALF OF THE APPELLANT Ms. F. Kishi

Instructed by: Kishi Legal Practitioners

ON BEHALF OF THE RESPONDENT Mr. L. Matota

Instructed by: Office of the Prosecutor-General