NOT REPORTABLE
REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI
APPEAL JUDGMENT
Case no: CA 43/2014
FRANS NDANGI ANNANIAS APPELLANT
and
THE STATE RESPONDENT
Neutral citation: Ananias v The State (CA43-2013) [2015] NAHCNLD 22 (15 May 2015)
Coram: TOMMASI J AND JANUARY J
Heard: 16 March 2015
Delivered: 15 May 2015
Flynote: Appeal – Application for condonation – No prospects of success – Application accordingly dismissed.
Sentence — Appeal against — Duty of appeal court — Should only interfere if discretion not exercised in in accordance with judicial principles – Appellant failed to persuade court that there are reasonable grounds upon which he would successfully argue that the magistrate failed to apply his mind.
Summary: The appellant noted his appeal out of time and applied for condonation. He advanced a reasonable explanation and the period of delay short. He however could not persuade the court that he would succeed with this appeal against sentence and the court held the view that the magistrate applied his discretion judiciously when he imposed a sentence of 2 years’ imprisonment for having contravened s35 (1) (a) of the Anti-Corruption Act, 2003 (Act 9 of 2003).
ORDER
The application for condonation is dismissed.
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JUDGMENT
TOMMASI J (JANUARY J CONCURRING)
[1] The appellant was convicted of having contravened s35(1)(a) read with sections 10, 32, 46 and 49 of the Anti-Corruption Act, 2003 (Act 9 of 2003) and was sentenced to two years’ imprisonment on 7 April 2014. He initially appealed against his conviction and sentence but at the hearing of the appeal abandoned his appeal against conviction and proceeded to argue his appeal against sentence in person.
[2] The notice of appeal was filed out of time and the appellant applied for condonation for the late noting of the appeal. The respondent opposed the application only on the ground that the appellant does not have reasonable prospects of succeeding with his appeal against sentence.
[3] The appellant explained that his legal practitioner did not explain to him that he had limited time to note an appeal and the delay to instruct a legal practitioner to appeal was occasioned by lack of financial resources. The appeal was filed on 30 July 2014, two months and 23 days after he was sentenced.
[4] The key issue however is whether the appellant has reasonable prospects of success.
[5] The grounds of appeal against sentence are the following:
“(a) The learned magistrate over emphasized the seriousness of the offence over the personal circumstances of the appellant;
(b) The learned magistrate erred on the facts or in law in not having imposed a fine when such alternative was available;
(c) The sentence imposes a sense of shock.”
[6] The appellant, a former police officer, confronted the complainant at a service station claiming he was transporting persons illegally. He demanded to see his driver’s license. When the complainant produced the license, the appellant took issue with the validity thereof and ordered him to go to the police station. At the police station the appellant requested the complainant to pay him N$300 failing which he was going to impound his vehicle. The complainant reported the matter to Commissioner Kashihakumwa who instructed him to pay the money to the appellant but to tear it in order for them to trace it. The appellant however was dropped off at home by other officers after they were ordered to return the vehicle to the police station. By the time they reached the appellant at his house, they were unable to find the money. The magistrate convicted the appellant of having contravened s38 (1)(a) of the Anti –Corruption Act.
[7] In terms of the provisions of s49 of the Act, a person convicted of this offence, is liable to a fine not exceeding N$500 000 or to imprisonment for a term not exceeding 25 years, or to both such fine and such imprisonment.
[8] The approach by the court when considering an appeal against sentence has been summarized in S v Shapumba 1999 NR 342 (SC) by Strydom CJ, as he then was, at page 344 I-J and 345A-B, as follow:
“In this regard it must be accepted that sentencing falls primarily within the discretion of the trial Court and that a Court of appeal would only interfere with the exercise of such discretion 'where it is clear that the discretion of the trial Court was not exercised judicially or reasonably . . .' Du Toit Commentary on the Criminal Procedure Act at para 31 - 28. What is regarded as an unreasonable or injudicious exercise of such discretion has been laid down in the form of guidelines by the Courts over many years. Thus a Court of appeal would be entitled to interfere on appeal with a sentence imposed where the trial Court has materially misdirected itself on the facts or the law or committed an irregularity or where the sentence imposed is startlingly inappropriate or induces a sense of shock or is 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. (See S v Rabie 1975 (4) SA 855 (A); S v Holder 1979 (2) SA 70 (A); S v Vries 1996 (2) SACR 638 (Nm) and S v Brand 1998 (1)”
[9] In this case it must be conceded that the most aggravating factor is the fact that the appellant was a law enforcement officer whose duty it was to serve and protect the public against crime. The magistrate gave considerable weight to this fact but also considered the personal circumstances of the appellant, the fact that he is a first offender and the public outcry against corruption. The magistrate, despite concluding that the accused had shown no remorse, was of the view that the accused could be rehabilitated. The magistrate concluded that, given the seriousness of the offence, a deterrent sentence should be imposed.
[10] It is thus clear that the magistrate placed strong emphasis on the seriousness of the offence and on the need for deterrence. The appellant submitted that the magistrate overemphasized the seriousness of the offence against the personal circumstances in that the destitution of those dependent on the appellant was not taken into account.
[11] The magistrate referred to S v Van Wyk 1993 NR 426 (SC) in support of his view that the crime which the appellant committed was one of those crimes where the deterrent requirements need to be emphasized, if needs be at the expense of the accused's individual personal circumstances. The magistrate’s reasoning in this regard, is legally sound. This court has on a number of occasions expressed its distaste for the offence which the accused had been convicted off and the magistrate committed no error when he decided that custodial sentence is warranted despite the fact that the appellant was the sole breadwinner and a first offender. It is my considered view that the magistrate fully took this fact into consideration if one has regard to the duration of the imprisonment he imposed.
[12] In the second ground of appeal the appellant criticized the magistrate’s failure to consider a fine. The appellant also referred to another unreported matter in which a traffic officer solicited N$1000 from a member of the public was sentenced to a fine of N$15000 or two years’ imprisonment.
[13] In S v Mukete and Others (CA 146/2003, 19.12.2005) the court of appeal held that a fine of N$3000 or, in default of payment, 24 months’ imprisonment was too lenient and substituted it with a custodial sentence of 2 years’ imprisonment. In that case a traffic officer extorted an amount of N$600 from a person who failed to stop at a stop sign. Tickets were eventually issued and the money paid over to the correct authority. The accused in that case therefore did not benefit in real terms from his crime. Maritz J, as he then was, at page 36 of the judgment; stated as follow:
“The crime of extortion is, in essence, the “demand side” of the crime of corruption. Together these two crimes have increased substantially in prevalence. There commission undermines the public’s confidence in the Government and it officers. Those crimes, especially if it committed by or in relation to those involved in the administration of justice, weakens the fabric of the bonds that maintain order in society. The perpetration and proliferation thereof must be discouraged by expeditious and effective investigation and prosecution and by imposition of exemplary sentences to deter others and to give expression to the offence society takes to the abuse of its confidence shown by the appointment of those perpetrators to public office.” [my emphasis]
[14] The magistrate in the same vein considered the appellant’s abuse of his position of trust and applied his discretion in favour of a custodial sentence. Again this court cannot fault his reasoning in opting to impose a custodial sentence instead of a fine. In fact this court fully agrees with the reasoning of the magistrate that in the circumstances of this case, a custodial sentence was appropriate.
[15] Having said this, it follows logically that this court does not consider the impassioning of a custodial sentence to be unduly harsh. The duration thereof, to my mind, is also not unduly severe. It in fact demonstrates the magistrate’s consideration of his personal circumstances. The magistrate clearly applied his mind judiciously when he imposed the sentence of 2 years’ imprisonment.
[16] Appellant thus failed to persuade court that there are reasonable grounds upon which he would successfully argue that the magistrate failed to apply his mind and his application for condonation accordingly stands to be dismissed.
[17] In the premises the following order is made:
1. The application for condonation is dismissed.
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MA TOMMASI J
Judge
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HC JANUARY
Judge
APPEARANCES
Appellant: In person
Oluno Rehabilitation centre
The Respondent : Adv R Shileka
Office of the Prosecutor-General
:
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