S v Mbarandongo (Case No: CA 34/2007 ) [2008] NAHC 89 (19 September 2008);

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Full judgment

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



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