2

REPUBLIC OF NAMIBIA

NOT REPORTABLE

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

CASE NO: CA 47/2015

In the matter between:

PETRUS SHIKULO APPELLANT

vs

THE STATE RESPONDENT

Neutral citation: Shikulo v State (CA 47/2015) [2016] NAHCMD 35 (24 February 2016)

Coram: SIBOLEKA J and USIKU J

Heard on: 04 December 2015

Delivered on: 24 February 2016

Flynote: Criminal law: In order for this court to interfere with the sentence of the trial Court, the alleged misdirection must be of such a nature, degree or seriousness that it shows, directly or inferentially, that the Court did not exercise its discretion at all or exercised it improperly or unreasonably.[1]

Summary: The appellant burgled three houses the same day and was caught in the act and shot by the police while still busy at the third house. Stolen goods were valued at N$14 000, N$5 700 and N$17 500 totaling to N$37 200.

Held: Housebreaking with intent to steal and theft is a serious offence which requires a custodial sentence.

Held: In the result the appeal against sentence is dismissed.

______

ORDER

______

The appeal against sentence is dismissed.

______

APPEAL JUDGMENT

______

SIBOLEKA J (USIKU J concurring):

[1] This is an appeal against the sentence imposed by the Magistrate, Grootfontein, on the appellant.

[2] At the hearing of the matter Mr Amoomo appeared for the appellant and Mr Lutibezi for the respondent. The court appreciates both counsel’s arguments in this regard.

[3] In regard to the reasons for the late filing of the notice of appeal, the appellant stated the following:

His then legal representative Mr Pombili Shipila promised to attend to the appeal immediately but did not do so. This counsel should have filed an affidavit to confirm this, which did not happen, thereby rendering the assertion hearsay. The appellant is a lay person without knowledge of rule 67 of the Magistrate’s Court rules. This was coupled with the shock caused by the sentence imposed on him as well as the fact that he was caught in the act. It is my considered view that the second reason is also not satisfactory given the fact that the appellant was legally represented at the trial of the matter.

[4] From the appellant’s heads of argument the grounds of appeal appear to be the following:

The Magistrate had insufficient or no regard to the fact that the appellant pleaded guilty. Mr Amoomo relied on the judgment of this court in the unreported judgment of S v Kadhila (CC 14/2013) delivered on 12 March 2014, where my brother Liebenberg J stated that:

“It is my considered opinion that considerable weight should be given to any accused who pleads guilty in circumstances where it cannot be said that there was no other option.” My own underlining.

I agree with the above decision and my understanding of it is that it does not support the appellant in the matter at hand because he was caught in the act and shot at by the police. In my view he indeed had no other option but to plead guilty. The above authority correctly denies him a benefit for pleading guilty.

[5] The Magistrate did not consider whether a suspended sentence would be just in the circumstances of this case. He under emphasized the fact that appellant is a first offender. Mr Amoomo requests for a wholly suspended sentence.

[5.1] In its reasons for sentence the trial Court took the following into account:

Crime: That on or about 9 June 2012 the first offending appellant, aged 27 years went on a burglary spree. He intruded and stole from three houses the same day. He was caught in the act at the third house by the police who shot and injured him in the process. Personal circumstances: At the time of sentence he spent two years in custody partly due to a sentence he was serving for escaping from lawful custody. The Court also took the seriousness of the offence, and felt that society had to be protected. It referred to the appeal matter: CA 7/1996 Thomas Goma Jacobs v S delivered on 22 April 1996 where this Court per Strydom JP and Frank J as they then were, held that “those who commit the crime of housebreaking with intent to steal and theft overlook nobody whether rich or poor. All levels of society have fallen victim to thieves and house breakers alike, and it shows no sign of abating. Therefore a custodial sentence for a first offender has become more or less the general rule.”

[6] When regard is had to all the above factors the Magistrate took into account in arriving at the sentence I am unable to find any misdirection in the sentence imposed.

[7] It is therefore my considered view that the appeal cannot succeed.

[8] In the result the appeal against sentence is dismissed.

______

A M SIBOLEKA

Judge

______

D N USIKU

Judge

APPEARANCES

APPELLANT : Mr K. Amoomo

Directorate of Legal Aid

RESPONDENT : Mr C. K. Lutibezi

Office of the Prosecutor-General, Windhoek

[1] S v Pillay 1977(4) SA 531 AD at 535E.