1
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
APPEAL JUDGMENT
Case no: CA 20/2016
In the matter between:
TCHEVELA AVELINO ANTUNES APPELLANT
and
THE STATE RESPONDENT
Neutral citation:Antunes v State (CA 20-2016) [2016]NAHCMD 214 (22 July 2016)
Coram:SIBOLEKA J and USIKU J
Heard:10 June 2016
Delivered:22 July 2016
Flynote: Appeal against sentence – appellant convicted of section 2(a), read with sections 1, 2(ii), 8,10,14 and Part I of the Schedule of Act 41 of 1971, as amended- dealing in prohibited dependence- producing drugs and section 6(1), read with sections 1,2 and 10(3) of the immigration control act, 1993(Act 7 of 1993)- Entry into Namibia at any place other than a port of entry. Notice of leave to appeal filed out of time – Court called upon to consider reasonableness of the grounds for condonation-Notwithstanding condonation granted- No reasonable grounds to appeal sentence.
ORDER
In the result, the appeal against sentence is dismissed.
APPEAL JUDGMENT
USIKU J, (SIBOLEKA J CONCURRING):
[1]The appellant was charged with dealing in prohibited dependence- producing drugs in contravention of section 2(a), read with sections 1, 2(ii), 8,10,14 and Part I of the Schedule of Act 41 of 1971, as amended-. He pleaded guilty to the main charge on count 1 and was convicted and sentenced to 10 years imprisonment and on count 2 of section 6(1), read with sections 1,2 and 10(3) of the immigration control act, 1993(Act 7 of 1993)- Entry into Namibia at any place other than a port of entry to which he was convicted and sentenced to six months imprisonment on the 9th October 2015.
[2]He now appeals against the sentence.
[3] At the inception of the appeal Mr Kuutondokwa who appeared on behalf of the respondent raised a point in Limine, that the proper procedure for obtaining condonation of the late filing of a notice of leave to appeal is by way of an application supported by an affidavit made by the applicant, explaining how the late filling came about. This was given light in the case of State v Kashire[1], furthermore that a convicted person who wishes to appeal against conviction or sentence should file a notice of appeal within fourteen (14) days after the date of such conviction, sentence or order with the clerk of the court in which he shall set out clearly and specifically the grounds, whether of facts or law or both fact or law, on which the appeal is based, Rule 67(1) of the magistrates court rules.
[4]The appeal court is entitled to interfere with a sentence if:
a)The trial court misdirected itself on the facts or on the law
b)An irregularity which was material occurred during the sentencing proceeding
c)The trail court failed to take into account material facts or overemphasized the importance of other facts.
d)The sentence imposed is startlingly inappropriate, induces a sense of shock and there is a striking disparity between the sentence imposed by the trial court and that which would have been imposed by a court of appeal[2].
[5]The purported grounds of appeal on which the appellant relies are not reasonable grounds as per S v Tjiho (supra), in the same vein none of them were considered in the sentencing of the appellant. The requirements as set out in Rule 67(1) of the Magistrates court Rules have not been met. It is trite that grounds of appeal should not embody arguments or conclusions reached by an appellant. It must be specific and clear as was the position in [zRPz]S v Gey Van Pittius and another[3].
[6]It is apparent to me that the appellant failed to clearly set out where the trial court failed to exercise its discretion. In principle the appeal court can only alter a sentence when it is satisfied that the trial court has not exercised its discretion judiciously.
[7]In the result the appeal against sentence is dismissed.
------
DN USIKU
Judge
------
A SIBOLEKA
Judge
APPEARANCES
APPELLANT:Mr TchevelaAvelinoAntunes(In Person)
Windhoek Central Prison
RESPONDENT:Mr J T Kuutondokwa
Of the Office of the Prosecutor-General, Windhoek
[1] State v Kashire 1978 (4) SA 166 at 167 H-I
[2] S v Tjiho 1991 NR 361 (HC) at 366 A-B.
[3]S V Gey Van Pittius And Another 1990 Nr 35 (Hc)