- December 9, 2022
- |Concise Law Reports (CLR), Criminal Law And Procedure
The appellants appeared with two co-accused in the Magistrate Court for the district of Swakopmund on a charge of escaping from lawful custody. They were convicted on 12 May 2022 with a fourth co-accused. The trial of the third accused was separated. The appellants were convicted upon their pleas of guilty and were each sentenced to thirty-six (36) months’ imprisonment. They appealed to the High Court against their sentences and the State opposed the appeal.
The accused persons were unrepresented in the court a quo and remained unrepresented in the High Court and appeared in person.
In dealing with the appeal, JANUARY J (CLAASEN J concurring) stated that:
‘[15] ‘It is trite that a Court of Appeal may only interfere with a sentence if (i) the trial court misdirected itself on the facts or on the law; (ii) a material irregularity occurred during the sentencing proceedings (iii) the trial court failed to take into account material facts or over-emphasized the importance of the facts; or (iv) the sentence imposed is startlingly inappropriate, induces a sense of shock or there is a striking disparity between the sentence imposed by the trial court and that which the Court of Appeal would have imposed.’
[18] In Goagoseb v S (HC-MD-HCMD-CRI-APP-CAL-2020/00096) [2021] NAHCMD 280 (7 June 2021) at par 11 where that court referred to S v Rabie the following was held:
‘Punishment should fit the criminal as well as the crime, be fair to society and be blended with a measure of mercy according to the circumstance’.
[20] It is trite that appellate courts will not interfere with a sentence imposed by a lower court if such sentencing was exercised judiciously. In S v Tjiho 1991 NR 361 (HC) (1992 (1) SACR 693) 366A-B it was stated as follows:
‘This discretion is a judicial discretion and must be exercised in accordance with judicial principles. Should the trail court fail to do so, the appeal court is entitled to, not obliged to interfere with the sentence. Where justice requires it, appeal courts will interfere, but short of this, courts of appeal are careful not to erode the discretion accorded to the trial court as such erosion could undermine the administration of justice’
[21] The 1st appellant revealed the reason for escape to obtain illegal substance into the prison facility, such amounts to an aggravating circumstance. By pleading guilty and having not damaged any property during his escape, such factors deserve to be taken into account when sentencing. These can at best be seen as mitigating factors. The 2nd appellant requested his girlfriend to inform the authorities about his whereabouts. He also did not damage any property during his escape and pleaded guilty to the charge. The same are mitigating in nature. It must be remembered that a custodial sentence is imperative considering the offence of escape from lawful custody. Previous escaping cases of a similar nature also need to be considered in these circumstances as referred to above.
[22] Having considered all the factors in mitigation as well as in aggravation of the sentence, our considered views are that the grounds of appeal have merit. The magistrate over-emphasized the seriousness of the crime, did not appropriately consider the principle of uniformity of sentences, and did not exercise her discretion judiciously. This resulted in sentences for the appellants that are unduly harsh and out of sync with sentences imposed under similar circumstances in the past (Johannes Ashipala v S (HC-MD-CRI-APP-CAL-2021/00097) [2022] NAHCMD 188 (13 April 2022)). This court is therefore, in the circumstances, entitled to interfere with the sentences imposed.’
Held that:
- The sentence was to harsh and not in sync with similar offences.
- The magistrate did not exercise her discretion judiciously.
As a result, the appeal against the sentence was upheld and set aside. The accused were each sentenced to two years’ imprisonment, antedated to 12/05/2022.
r v S (HC-MD-CRI-APP-CAL-2020-00048) [2022] NAHCMD 680 (09 December 2022)