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S v Ndikwetepo and Others (SA 3/93) [1993] NASC 3 (15 October 1993)
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CASE NO. sa 3/93 IN THE SUPREME COURT OF NAMIBIA
In the criminal appeal of:
PAULUS NDIKWETEPO
FIRST APPELLANT
MATBEUS TJAPA
SECOND APPELLANT
VANASIUS AMEHO
THIRD APPELLANT
and
THE STATE
RESPONDENT
CORAM: MAHOMED, C.J., et DUMBUTSHENA, A.J.A. et CHOMBA, A. J.A.
Heard on: 1993/10/04 Delivered on: 1993/10/15
JUDGMENT
CHOMBA, A.J.A.: The three appellants, together with three others with whom we are not concerned in this appeal, were on the 24th April 1992 charged before the High Court with fifteen counts. Just as this judgment will not concern itself - save in passing only - with those three others, so also will it be confined only to those counts on which the appellants v/ere convicted and later sentenced. The appeal is against sentence.
The first count charged robbery with aggravating circumstances, as defined in section 1 of the Criminal Procedure Act No. 51 of.1977. The second appellant was convicted of this and sentenced to eighteen (18) years
2
imprisonment. On the third count, also charging robbery with aggravating circumstances, the first and second appellants were sentenced to fifteen and sixteen years/- '' imprisonment respectively. As regards the sixth count equally charging robbery with aggravating circumstances, the first and third appellants were convicted and each received a sentence of twelve years imprisonment.
On the eighth count, charging robbery with aggravating circumstances, the second appellant alone was convicted and a prison sentence of fifteen years was imposed. The first and third appellants were further sentenced on the tenth and eleventh counts, both alleging robbery with aggravating circumstances. They consequently received sixteen years imprisonment each. Further still the first appellant alone was found guilty on the twelfth count which charged attempted murder and he was sentenced to fourteen years imprisonment, seven years of which were ordered to run concurrently with the sentence on the tenth and eleventh counts.
The first and third appellants were additionally convicted on the thirteenth count charging theft of the one sheep and a sentence of six months imprisonment was imposed on each of them. Lastly the first appellant was convicted on the fourteenth and fifteenth counts charging respectively possession of ammunition without a licence and escape from lawful custody. In regard to these last two offences, sentences of six (6) months and twelve (12) months imprisonment respectively were imposed.
3
Save for the seven (7) years imprisonment ordered to be served by the first appellant concurrently with his sentence on the tenth and eleventh counts/ the rest of the sentences were ordered to run consecutively. In the result the effective sentences the three appellants received were fifty-two (52) years imprisonment in respect of the first appellant, forty-nine (49) years imprisonment in respect of the second appellant and twenty-eight and half (28,5) years in respect of the third appellant.
After making unsuccessful applications in the court a quo for leave to appeal against both conviction and sentence, the three appellants petitioned this court. After a careful consideration of the totality of the evidence and all relevant circumstances this court rejected the petitions as they related to convictions, but granted leave to appeal against sentence.
It is against the foregoing back-drop that on Monday, 4th October, 1993, the appeals of all the three appellants were heard.
In substance the Learned counsel for the appellants submitted that some of the individual sentences imposed were excessive, and further that the aggregate sentences were totally inappropriate and so severe that they induced a sense of shock. They therefore urged this Court to interfere with the sentences.
Both counsel for the appellants cited authorities which
4
outline principles to be followed by a sentencing Court in considering appropriate sentences. These principles were -
a)
the personal circumstances of the prisoner as well as facts which appear from the evidence and which tend to mitigate the severity of the sentence.
b)
the seriousness of the offence proved against the accused and the manner in which it was executed, and
c)
the expectations of society.
The appellants' counsel impugned the sentences on the basis that the court a quo did not pay due regard to principle (a) above. As to principle (b) they argued that the sentences imposed in relation to the offences of robbery with aggravating circumstances indicated that the court a quo -exaggerated the seriousness of those offences. To this end Mr Kasuto submitted that the eighteen years imprisonment imposed on the second appellant on the first count tended to place the offence charged in the same category of seriousness as murder. Mr Grobler argued that the sentence of fifteen years imprisonment imposed on the first appellant in regard to the third count - relating to the robbery from Mr and Mrs Schneider - Waterberg - showed lack of appreciation on the part of the court a quo that that appellant played only a minor role in the commission of that offence. In the circumstances, it was argued, the first appellant merited a lesser sentence.
Counsel further submitted that where the offences formed a
5
series of one course of criminal conduct, there was need to
order that the sentences thereon should run concurrently.
To this end our attention was drawn to the fact that in the
present case the offences were committed between
29th December 1990 and 24th March 1991, a period of just
under three months. That the offences of which the
appellants were convicted formed one criminal conduct was
high-lighted by the mode of commission of all the robberies,
whereby the appellants and their cohorts invaded farmsteads
owned, and at the material times occupied, by a man and his
wife, who were, in the majority of cases, elderly people>
and also that at the time of the intrusions the assailants
were armed with offensive weapons, ranging from fire-arms to
pangas and sticks. They used these to over-come resistance
from their victims. It was also a common feature of all the
robberies that the assailants demanded money and firearms,
inter alia.
In their quest to show that the sentences imposed on the appellants were excessive and, therefore, wrong, counsel submitted that on
the authorities available the heaviest cumulative sentence imposed did not exceed 30 years imprisonment. Moreover it was also urged
that the court a quo should have given due weight to the principle that punishment is intended, among other things, to reform a prisoner. In this connection it was pointed out that in the case of the first appellant, as he was aged 33 years at the time of the sentences imposed on him amounting altogether to 52 years, he would be eighty-five years old at the time of release, assuming that the whole sentence had to be served.
6
That sentence was therefore as good as denying him the opportunity to reform. This argument can be extended to the second appellant who, aged 36 years at the time of sentence, would also be 85 years old at the time of release if the full sentence were to be served.
Mr Grobler further submitted that the first appellant having been sentenced for attempted murder, the shooting of Mr De Lange ought not to have been taken into account as an aggravating circumstance in sentencing the appellant on the robbery charged in counts 10 and 11. He further implored us to find that in shooting Mr De Lange the first appellant acted in self-defence because Mr De Lange had hit him first with a walking stick on the nose/ causing him to bleed. He buttressed this argument by reminding us that in the earlier robberies of a similar nature and in which the first appellant featured the victims were not shot at although firearms were used to
intimidate them.
Lastly Mr Grobler submitted that the sentence imposed on his client violated article 8(2)(b) of the Constitution of Namibia, which forbade the subjection of anybody to "torture, cruel, inhuman
or degrading treatment or punishment."
In urging the court to interfere with the sentences imposed on his clients Mr Kasuto submitted that the court below had committed a number of misdirections in assessing the sentences. He argued, for instance, that the 18-year sentence imposed on the
second appellant on count 1 had no
7
reformative effect but was calculated to break him.
As against the submissions summarised above, suffice it to mention that Mr Small supported all the sentences. He underscored the rule of practice - which through invariable application by appellate courts has acquired the mantle of a rule of law - that punishment is pre-eminently a matter for the discretion
of the trial court. In his submission that discretion had not been improperly, injudiciously or unreasonably exercised by the court
a quo so as to warrant interference by this Court with the sentences.
It is, indeed, a settled rule of practice that punishment falls within the discretion of the court of trial. As long as that discretion
is judicially, properly or reasonably exercised, an appellate court ought not to interfere with the sentence imposed. This principle
emerges from a chain of authorities, but for our purposes it suffices to refer only to two of them.
In S v Rabie 1975(4) S.A. 855 (A) at page 857 there occurs the following passage: -
"In every appeal against sentence, whether imposed by a magistrate or a judge, the court hearing the appeal -
a)
should be guided by the principle that punishment is pre-eminently a matter for the discretion of the trial court; and
b)
should be careful not to erode such
8
discretion; hence the further principle that the sentence should only be altered if the discretion has not been judicially and properly exercised."
It is explained in the same judgment that the discretion may be said not to have been judicially or properly exercised if the sentence
is vitiated by an irregularity or misdirection.
Another case in point is S v Ivanisevic and Another 1967 (4) S.A. 572 (A) in which HOLMES, J.A. stated at page 575 that "... it has more than once been pointed out that the power of a Court of Appeal to ameliorate sentences is a limited one: See Ex Parte Neethling and Another 1951 (4) S.A. 331 at page 335 H; R v Lindsay and Another 1957 (2) S.A. 235 (N); S v de Jaqer and Another 1965 (2) S.A. 616 (A) at page 629. This is because the trial court has a judicial discretion and the appeal is not to the discretion of the Court of Appeal: on the contrary, in the latter court the enquiry is whether it can be said that the trial court exercised its discretion improperly."
Another test applied by appellate courts entertaining appeals against sentence which is said to be on the oppressive side is whether such sentence is so manifestly excessive that it induces a sense of shock in the mind of the court (See
R v Lindsay 1957 (2) S.A. 235.) If it does the inference can be drawn that the discretion had not been properly exercised.
Can it be said when these tests are applied to the
individual sentences passed in the present case, that the court a quo fell into error? In other words can it be said that the trial court exercised its discretion other than judicially, properly or reasonably?
A positive answer to this question would justify interference with any one or more of the sentences.
A perusal of the record of appeal shows that the trial judge was very much alive to the principles of sentencing as reproduced above. As regards personal circumstances the trial judge noted (see at page 1877 et seq.) the ages of the appellants, their family circumstances, standard of education attained and their antecedents. In this connection the judge took cognisance
of the fact that whereas the first and third appellants were first offenders, the second appellant, on the other hand, had previous convictions as follows:
| 1981 |
- |
| 1981 |
- |
| 1983 |
- |
| 1983 |
—m |
|
3 months imprisonment for housebreaking.
9 months imprisonment for housebreaking
with intent to steal.
13 months imprisonment for housebreaking
with intent to steal.
15 months imprisonment of which 10
months were ordered to run concurrently
with the previous sentence for
housebreaking with intent to steal.
1985
- released on parole.
1986
- Two years imprisonment for housebreaking
with intent to steal and theft. Additionally 3 years 'imprisonment for housebreaking with intent to steal and theft and another three
years
10
imprisonment for a similar offence.
In the result the trial judge, quite rightly imposed a heavier sentence on the second appellant, for example, on count three on which the first and third appellants were found guilty - he imposed 15 years imprisonment on the first appellant whereas the second appellant got 16 years imprisonment.
In regard to the seriousness of the crimes committed the trial judge addressed his mind to individual offences, noting that in the case of offences in which Mr and Mrs Schneider-VJaterberg and the latter's mother, Mrs Merckens, all elderly persons, were concerned, they were pounced on by five men as they watched TV on the evening of 3rd February 1991. He recorded that one of the assailants was wielding a pistol which he later pointed at Mr Schneider-Waterberg, while the other four, including the first appellant, carried sticks and pangas. The victims were assaulted in the process of which Mrs Merckens sustained a fractured right elbow. The intruders demanded money and firearms. Apart from being assaulted the victims had their hands tied with electric wire, their residence was then ransacked and a number of items stolen.
From the judge's notes it is made evident that this kind of violence, in which firearms, pangas and/or sticks were used, was replicated in varying degrees in relation to the other offences of robbery with aggravating circumstances. He showed in addition that in the case of the invasion of the farm house of Mr and Mrs De Lange there was an actual
11
shooting with a firearm resulting in Mr De Lange being seriously wounded in the left cheek. He was lucky that he lived to tell the story of his ordeal. The charge of attempted murder resulted from that shooting. Needless to
