Andreas v S (HC-NLD-CRI-APP-CAL-2020-00020) [2020] …



REPUBLIC OF NAMIBIAIN THE HIGH COURT OF NAMIBIA, NORTHERN LOCAL DIVISION, OSHAKATIAPPEAL JUDGMENTCase Title: Immanuel Andreas v The State Case No: HC-NLD-CRI-APP-CAL-2020-00020Division of Court: Northern Local DivisionHeard before: Honourable Mr. Justice January J etHonourable Ms. Justice Salionga JHeard on: 6 August 2020Delivered on: 10 September 2020Neutral citation: Andreas v S (HC-NLD-CRI-APP-CAL-2020-00020) [2020] NAHCNLD 129 (10 September 2020) The order: The application for condonation is granted;The sentence of 48 months imprisonment of which 12 months are suspended for a period of 5 years on condition that the accused is not convicted of the offence of assault with intent to do grievous bodily harm committed during the period of suspension is set aside;The appellant is sentenced to three years imprisonment of which one year imprisonment is suspended for five years on condition that the accused is not convicted for assault with intent to do grievous bodily harm committed during the period of suspension. The sentence is backdated to 09 October 2019.Reasons for order:JANUARY J (SALIONGA J concurring):[1] The appeal is against sentence only.[2] The appellant is representing himself and the respondent is represented by Mr Gaweseb.[3] The appellant pleaded guilty to a charge of assault with intent do grievous bodily harm; ‘In that on or about the 16th day of March 2018 and at or near Onamunama Village in the district of Eenhana the said accused did wrongfully, unlawfully assault Emilia Nekongo by stabbing her with a broken bottle on her right eye with intent to do the said Emilia Nekongo grievous bodily harm’. A plea of not guilty was entered in terms of section 113 of the Criminal Procedure Act, Act 51 of 1977. He was convicted after evidence was led.[4] He was sentenced on 9 October 2019 to 48 months’ imprisonment of which 12 months is suspended for a period of five years on condition that the accused is not convicted of the offence of assault with intent to do grievous bodily harm committed during the period of suspension.[5] He filed his notice of appeal about two months late on 20 November 2019 with an application for condonation. He explained that the reasons for the delay are that:After the sentence he did not have an idea of what an appeal was and the format.He could not find anyone early enough to assist him with the appeal.After he found someone to assist, he took the notice of appeal to the prison warders for typing and to fax it to the clerk of court.The prison warders could not assist him immediately as they were also attending to other appeals of fellow inmates.[6] The appellant in his notice of appeal did not raise any ground of appeal and merely restated facts that he already raised in the court a quo in mitigation. He only raised grounds of appeal in additional heads of argument filed shortly before the hearing of the matter. He submitted that the court misdirected itself on the facts by finding that the complainant was stabbed with a broken bottle whereas her witness statement reflects that she was beaten with a broken bottle. At the hearing, the appellant abandoned his challenge ad conviction and prosecuted the appeal only against sentence. [7] He submitted that the sentence is shockingly inappropriate and that the magistrate failedto adequately consider his personal circumstances.[8] The record reflects that his rights to appeal and review were appropriately explained and he understood.[9] In my view the explanation for the delay is not reasonable. That is however not the end of the matter. I agree with the dictum in S v Gowaseb 2019 (1) NR 110 (HC) at 111 H to 112 A where it was held: ‘. . . it is settled law that in order to succeed in an application for condonation two requirements need to be met. Firstly, the appellant must provide a reasonable explanation for not filing the notice of appeal on time. Secondly, the appellant must imperiously show that he has reasonable prospects of success on appeal.’[10] The appellant is not absolved from the second requirement regardless of whether a reasonable explanation was furnished or not. The prospect of success on appeal is imperative. If the prospect of success at appeal is non-existent, it matters not whether the first requirement was reasonable or not, the appeal must fail.[11] In my view, the appellant has prospects of success on appeal in relation to the sentence. The personal circumstances of the appellant are: that he is a first offender aged 21 years’ old; he attended school to grade 12 and intends to further his studies; he is not married and has no children. He pleaded guilty as a sign of remorse although the court entered a plea of not guilty in terms of section 113 of the CPA because he raised private defence.[12] I find the sentence of 48 months’ imprisonment harsh and inappropriate. In my view the learned magistrate overemphasized the seriousness of the crime. The complainant was an elderly lady of 56 years old and a police officer. A sentence of 3 years imprisonment of which 1 year imprisonment is suspended for 5 years on condition that the accused is not convicted for assault with intent to do grievous bodily harm committed during the period of suspension is appropriate in the circumstances.Judge(s) signatureComments: January JNONESalionga JNONECounsel:AppellantRespondentMr. I AndreasOf Oluno Correctional FacilityOshakatiMr. T GawesebOf Office of the Prosecutor-GeneralOshakati ................
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