Gerevasio v S (CA 19/2017) NAHCNLD 97 (28 September 2017);


Full judgment





                                                                                                             Case No.: CA 19/2017

In the matter between:

KAUFIWONGALI GEREVASIO                                                                 APPELLANT


THE STATE                                                                                                RESPONDENT

Neutral citation: Gerevasio v S (CA 19/2017) [2017] NAHCNLD 97 (28 September 2017)


Coram:          TOMMASI, J  and JANUARY, J

Heard:           17 August 2017

Delivered:     28 September 2017


Flynote: Criminal Procedure – Appeal – Sentence – Robbery – Reduction of sentence – Fine – Inappropriate.

Summary: The appellant was convicted of robbery and sentenced to two years’ imprisonment.  While the complainant was walking at a place called Sky Bridge in Oshakati two assailants approached her.  One of them grabbed her on the arm twisted the arm, beat her on the forehead with a fist and tripped her down. The appellant grabbed her cellphone, N$2 000 from her hand and ran off.  She positively identified the appellant as the person who grabbed the cellphone from her hand.


1.      The appeal is dismissed.


JANUARY J (Tommasi, J Concurring)

[1]        The appellant was convicted in the Oshakati Magistrates court for robbery after he pleaded not guilty.  He now appeals against a sentence of two years’ imprisonment.  He appears in person and does not advance any particular ground of appeal.

[2]        The appellant only submits that his sentence should be reduced and he prays for a fine of N$200 in order for him to resume his employment as a builder.  He submits that he will never buy something in the street again; that he is a father and that he is currently unemployed.

[3] The personal circumstances of the appellant are that he is not married.  He has two children.  He stated in mitigation that he is employed and earns a salary of N$1 500 contrary to what he alleges in his notice of appeal that he is unemployed.  He further stated in mitigation that he cannot afford to pay a fine because he is still on holiday and has not started working yet at a construction site.  The appellant is a first offender.

[4]        The appellant alleged that he just bought the cellphone from a guy that he knew.  He was however trying to sell the cellphone the day after the robbery.  A Police Officer pretending to be a buyer approached the appellant and seized the cellphone after the complainant identified it.

[5]        The Learned Magistrate considered correctly that robbery is a serious and prevalent offence. He sentenced the appellant as a first offender and considered the personal circumstances of the appellant.  The complainant lost her handbag with another cellphone, her ID card, an FNB Bob card, N$300 in cash, a watch worth N$400, a necklace and earrings.  Only the cellphone which the appellant had and her ID card were recovered.  The Magistrate, correctly in my view, found that the appellant showed no remorse.

[6]        It is trite law that sentencing is pre-eminently within the discretion of the trial court. This court of appeal has limited power to interfere with the sentencing discretion of a court a quo. A court of appeal can only interfere;

·    when there was a material irregularity; or

·    a material misdirection on the facts or on the law; or

·    where the sentence was startlingly inappropriate;

·    or induced a sense of shock; or

·    was such that a striking disparity exists between the sentence imposed by the trial Court and that which the Court of appeal would have imposed had it sat in first instance in that;

·    irrelevant factors were considered and when the court a quo failed to consider relevant factors.1

[7]        I do not find any misdirection by the Learned Magistrate.  He respectfully exercised his sentencing discretion judiciously.

 [8]       In the result:

The appeal is dismissed.



                                                                                                H C JANUARY




                                                                                                I Agree




                                                                                                M A TOMMASI




For the Appellant:                            In Person

                                                         Of Oluno Correctional Facility

For the Respondent:                       Adv Tjiveze

                                                         Of Office of the Prosecutor-General

1 S v Kasita 2007 (1) NR 190 (HC); S v Shapumba 1999 NR 342 (SC) at 344 I to 345A; S v Jason & another 2008 NR 359 at 363 to 364G