S v Jansen (Case No. CA 21/2005 ) [2008] NAHC 86 (01 August 2008);

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Full judgment
CASE NO

CASE NO. CA 21/2005

IN THE HIGH COURT OF NAMIBIA


In the matter between:


JOHN JANSEN APPELLANT


versus

THE STATE RESPONDENT


CORAM: HOFF, J et MANYARARA, A.J.


Heard on: 2008.08.01

Delivered on: 2008.08.01

___________________________________________________________________________

APPEAL JUDGMENT

MANYARARA, A.J.:


[1] The Appellant who was legally represented pleaded guilty to a charge of murder, before the Regional Court sitting in Windhoek. He was convicted on his plea and sentenced to 20 years imprisonment. He appealed against the sentence only.


[2] A preliminary point taken by the State when it filed its heads of argument was that the record was incomplete as the post mortem report was not part of the record. That defect has since been rectified and the post mortem report is now part of the record.


[3] The grounds of the appeal are that the magistrate erred on the facts as follows:

  1. By imposing 20 years imprisonment and not suspending part thereof:

  2. By disregarding the fact that the appellant was a first offender and a father of two minor children;

  3. By disregarding the fact that the appellant was provoked, under the influence of alcohol and that the offence was not premeditated;

  4. By disregarding the fact that the appellant and the deceased were involved in a relationship.



[4] However, a perusal of the reasons for sentence points the other way. The magistrate states clearly in the sentence that he took into account the fact:

  1. That the appellant was a first offender, with family responsibilities; and

(b) that the appellant apparently acted in a rage under the influence of alcohol and was involved in a relationship with the deceased;

(c) but, against these factors it was the duty of the Court to curb violence by imposing severe sentences; and

(d) that he considered suspending part of the sentence, but decided against doing so.



[5] The decision was entirely within his discretion and it follows that this Court has no ground for interfering with the sentence, which in any event does not induce a sense of shock. The sentence does not induce a sense of shock in view of the savagery of the offence for a trivial reason.



[6] As the magistrate pointed out, the appellant shot the deceased seven times in the head even though he realised that the deceased died after the first shot. In our view, there is no merit in the appeal. Accordingly the appeal against sentence is dismissed.



________________

MANYARARA, A.J



I agree






________________

HOFF, J





ON BEHALF OF THE APPELLANT In-Person


ON BEHALF OF RESPONDENT MS NYONI

Instructed by: Office of the Prosecutor-General


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