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REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI

APPEAL JUDGMENT

Case No: CA 25/2013

DATE: 20 JUNE 2016

In the matter between:

HAMAKALI DAVID.........................................................................................................APPELLANT

And

THE STATE....................................................................................................................RESPONDENT

Neutral citation: David v the State (CC 21/2015) [2016] NAHCNLD 42 (20 June 2016)

Coram: JANUARY, J TOMMASI J (CONCURRING)

Heard: 18 April 2016

Released: 20 June 2016

Flynote: Criminal Procedure ─ Condonation ─ Explanation for delay ─ Reasonable ─ No prospects of success ─ Appeal struck from the roll and considered finalized.

Summary: The appellant in this matter was properly convicted for housebreaking with intent to steal and theft. He was sentenced to 4 (four) years imprisonment. This appeal is against the sentence. The notice of appeal was filed long after the stipulated time. The appellant explained the delay which this court finds to be reasonable and bona fide in the circumstances. The court considered the merits and found no prospects of success. The appeal is struck from the roll and considered finalized.

ORDER

1. The application for condonation is dismissed.

2. The appeal is struck from the roll and considered finalized.

JUDGEMENT

JANUARY J, TOMMASI J (CONCURRING)

[1] The appellant in this matter was properly convicted in the Magistrate Court, Omungwelume on a charge of Housebreaking with intent to steal and theft on 12/08/2013. The State proved previous convictions for Robbery for which the appellant was sentenced to 2 (two) years imprisonment, Escape from lawful custody for which he was sentenced to 12 (twelve) months imprisonment and Housebreaking with intent to steal and theft for which appellant was sentenced to 5 (five) years imprisonment. The appellant was in casu sentenced to 4 (four) years imprisonment.

[2] This appeal is against the sentence only. The appellant was first represented by Ms Mainga at the commencement of the trial and later during the proceedings by Ms Nangolo. He is represented in this appeal by Mr Greyling (Jnr) and the respondent by Mr Matota. The appellant filed his notice to appeal with supporting affidavit only on 12 March 2015 about 19 months after he was sentenced. He states in the supporting affidavit that his rights to appeal were fully explained to him.

[3] The appellant stated his reasons for the delay as follows;

i. He did not understand what appeal meant.

ii. He had difficulty in finding someone who could assist him to read and write as he is unable to read and write.

iii. When the appellant was able to find someone who could properly explain what an appeal meant and assisted him to draft the notice, the time period for filing the notice had already lapsed.

[4] The court record does not reflect that the right of the appellant in relation to the appeal was explained to him. Even though he states in his supporting affidavit that; “‘off course Hon even the court was explain to me everything about appeal’ to me that was difficult to understand what can appeal mean’ (sic)…..”, this court can only speculate what was explained and if at all the appellant understood at the time what procedure he should follow to note an appeal and what was required. He was represented at the time but the record also does not reflect a request for his legal representative to explain to the appellant the appeal procedure or an undertaking by the lawyer to explain it to him. In these circumstances, I find some merit in the explanation of the appellant and consider it to be bona fide.

[5] The appellant is only asking for a reduction in his sentence. In his notice of appeal he indicated that he now has to serve 9 years of imprisonment as he was at the time of the sentence of this appeal already serving a 5 year sentence. He indicated that he is the sole breadwinner in the family as his brother who was taking care of the family passed away. The appellant further indicated that he attended rehabilitation courses in prison that will change his life and prevent him to commit further crimes.

[6] This court is confined only to consider the appeal within the four corners of the court record.[1] Consequently the reference to rehabilitation programmes and his brother’s death cannot be considered as it is new evidence and is not reflected in the record.

[7] Mr Matota contended that the notice of appeal does not reveal any grounds of appeal. The grounds of appeal filed by the appellant do not appear to be clear and specific in this appeal. I endorse what was stated by Van Niekerk J in S v Zemburaka[2] as follows;

[4] There is ample authority which emphasises the requirement of clear and specific grounds of appeal and the importance of a proper notice of appeal (see eg S v Horne 1971 (1) SA 630 (C) 631H - 632A; S v Khoza 1979 (4) SA 757 (N) 758B; S v Wellington  1990 NR 20 (HC) (1991 (1) SACR 144) 22G - 23A; S v Kakololo (case No CA 42/2001, unreported, delivered 15 November 2002); S v Kahunga and Another (case No CA 57/2002, unreported, delivered on 18 November 2004). In each case the appeal court would have to interpret the notice of appeal to assess its compliance or otherwise with the requirements set by the law.

[8] In this appeal I interpreted the notice of appeal and could establish that the substance thereof is that the appellant is dissatisfied with the sentence of 4 (four) years imprisonment. He is not satisfied because the sentence was not ordered to run concurrently with the sentence of 5 (five) years imprisonment that he was already serving at the time of sentencing in this matter. He is further dissatisfied and allegedly the learned magistrate did not consider or inappropriately considered the hardship that his family will suffer as a result of his prolonged incarceration.

[9] The notice of appeal was clearly drafted by a lay person and although no legal language was used both Mr Matota and Mr Greyling submitted very helpful arguments indicating that they could at least discern what the appellant is appealing against.

[10] I associate and endorse what Van Niekerk J stated with reference to a letter written as a notice of appeal in S v Zemburuka (supra) at 738 F-J as follows;

[5] In this case, the letter was clearly written by a lay person without assistance of a lawyer. I do not think that an overly fastidious and technical approach should be followed in the circumstances of this case in considering whether it is a notice of appeal. I think justice will be served if the court rather seeks, if possible, to interpret the letter in a manner upholding its validity as a notice of appeal so that the merits of the matter may be dealt with and the appeal may be disposed of. While the letter is not couched in the form and language that a properly drawn notice of appeal should be, the substance of the letter is clear – the accused appeals against sentence because he feels aggrieved by the fact that a sentence of direct imprisonment was imposed. In effect he is stating that the magistrate misdirected herself by not giving him the option of a fine in the light of his personal circumstances, which he sets out. The personal circumstances he relies on do not constitute new matter, but were mentioned in evidence during the trial and counsel made submissions thereon during his address on sentence.

[11] I have already herein before indicated that I find the explanation of the appellant as reasonable and bona fide. It remains for me to consider if there are prospects of success.

[12] The State proved previous convictions as indicated in paragraph 1 above.

[13] The appellant testified that he was 26 (twenty six) years old. He understood the seriousness of the crime and that it calls for imprisonment. The appellant testified that he has 2 (two) children and a mother who is old and under medication. He requested the court to impose a sentence to run concurrently with the sentence he was serving at the time or a fine.

[14] This court can only interfere with a sentence where there was an irregularity; when a sentence was imposed when irrelevant factors were had regard to or relevant factors were disregarded. Secondly, where the sentence induces a sense of shock or is so disproportionate to any sentence that this court would have imposed as a court of first instance.[3]

[15] The crime of housebreaking to steal and theft is indeed serious. I associate myself with what Maritz J (as he then was) said in S v Drotsky [4]as follows;

The crime of housebreaking with intent to steal and theft is - as the magistrate has observed - a prevalent and serious one. It is regarded by the law and society as a particularly insidious form of theft. It is said that a man's home is his castle. If there is one place where a person should feel safe and secure it is in his home. Housebreaking with intent to steal and theft strike at and destroy the sense of safety and security which the occupants are entitled to enjoy. It constitutes an unlawful invasion of the complainant's privacy and an illegal misappropriation of his or her possessions - sometimes commercially irreplaceable goods of great sentimental value.

For these reasons society has a particular interest that the commission of this crime should be discouraged by an appropriate judicial response. Perpetrators should know that the norm is imprisonment without the option of a fine unless the circumstances of a particular case justify the imposition of a lesser sentence.

[16] I have considered sentences for similar cases as it is trite that similar sentences should be imposed for similar cases.

[17] The appellant in this appeal was not a first offender for crimes involving dishonesty. Both robbery and housebreaking with intent to steal and theft for which he has previous convictions, involves dishonesty. This is aggravating and was properly considered by the court a quo. The previous conviction for escaping from lawful custody also has limited relevance. I also agree with the remarks of Ncobo J in S v Muggel[5] where it is stated;

The present state of law in regard to the extent to which it is permissible to take previous convictions into account when imposing sentence appears to be the following:

1. In terms of s 271(4) of the Act the court is required to take previous convictions which have been proved against the accused into consideration when imposing a sentence.

2. …….

3. Although s 271(4) requires the sentencing court to take previous convictions into account when determining the appropriate sentence, it does not take away the discretion of the sentencing court. The court is enjoined to exercise its discretion judicially when taking into consideration previous convictions.

4. In the exercise of its discretion, the sentencing court is required to have regard to the nature, the number and the extent of similar previous convictions and the passage of time between them and the present offence. The relevance and importance of those convictions depends upon the element they have in common with the offence in question. S v J 1989 (1) SA 669 (A) at 675C - D.

5. Previous convictions, which bear no relationship whatsoever to the crime, are relevant in a limited sense only and simply with a view to determining to what extent, if any, the forms of punishment imposed for those crimes served as effective deterrents for the person in his or her career of crime and also to indicate the extent to which the person has an uncontrollable urge to lawlessness which reduces the chances of reform. S v J (supra at 675).

6. The tendency of taking everything that appears on the form SAP69 into consideration, regardless of the passage of time, must be avoided. It must also be borne in mind that even a criminal is entitled to ask that the lid on the distant part should be kept tightly closed. S v Mqwathi 1985 (4) SA 22 (T).

7. The degree of emphasis to be placed upon previous convictions is a matter which is within the discretion of the trial court. Where the degree of emphasis is disturbingly inappropriate, in that it cannot be said that the sentencing court exercised its discretion judicially, the Court of appeal will interfere.

[18] In view of the previous convictions, I find the allegation of being rehabilitated to be without merit. Mr Greyling agreed to this. This is in any event not mentioned on the record in mitigation and therefore cannot be considered. Mr Greyling submitted that the punitive aspect of sentence should be mitigated by a presiding officer considering an accused‘s responsibility to dependants, unemployment etc. He did not submit that the learned magistrate did not consider these factors and I cannot find that undue weight was attached thereto.

[19] I do also not find any irregularity or misdirection in relation to the alleged omission of the learned magistrate to have the sentence run concurrently with a sentence the appellant was serving at the time. Any presiding officer has discretion to order the concurrent running of sentences in accordance with section 280 of the Criminal Procedure Act, Act 51 of 1977 which provides as follow:

280 Cumulative or concurrent sentences

(1) When a person is at any trial convicted of two or more offences or when a person under sentence or undergoing sentence is convicted of another offence, the court may sentence him to such several punishments for such offences or, as the case may be, to the punishment for such other offence, as the court is competent to impose.

(2) Subject to section 99(2) of the Correctional Service Act, 2012 (Act 9 of 2012) punishments referred to in subsection (1), when consisting of imprisonment, commence the one after the expiration, setting aside or remission of the other, in such order as the court may direct, unless the court directs that such sentences of imprisonment must run concurrently.

[Subsec (2) substituted by sec 134 of Act 9 of 2012.]

[20] The previous conviction for housebreaking with intent to steal and theft stems from an incident that occurred before this Housebreaking with intention to steal and theft was committed on 16 May 2010. The robbery conviction occurred on 2006. There is no evidence suggesting an overlapping of the crimes in that they were committed with the same intent and at the same time. I therefore find no merit in the allegation that the magistrate misdirected himself by not ordering the sentences to run concurrently.

[21] The sentence does not induce a sense of shock and I cannot find a misdirection constituting an irregularity justifying this court to interfere with the sentence. In my view, the appeal against sentence has no merit.

[22] As a result:

3. The application for condonation is dismissed.

4. The appeal is struck from the roll and considered finalized.

JANUARY J

TOMMASI J

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