Nawa V the State (CA 144-2013) 2015 NAHCMD 4 (22 January 2015)

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT Case no: CA 144/2013

In the matter between:

JIMMY NAWA APPELLANT and

THE STATE RESPONDENT

Neutral citation: Nawa v The State (CA 144/2013) [2015] NAHCMD 4 (22 January 2015)

Coram: HOFF, J et SIBOLEKA, J

Heard: 08 August 2014

Delivered: 22 January 2015

Summary: Application for condonation of late filing of notice of appeal against sentence – Requirements restated – Applicant must give a reasonable explanation for the delay and explanation must be bona fide – Court will not sympathize with untruthful applicant – Applicant must make a full and detailed disclosure of the 2 circumstances which caused the delay in filing the notice of intention to appeal – Applicant must in addition establish the existence of good prospects of success on appeal in respect of the merits of the case.

The appeal is struck from the roll.

JUDGMENT

HOFF, J: (SIBOLEKA, J concurring)

[1] The appellant was convicted of the crime of rape (of a 10 year old girl) and sentenced in the Regional Court on 23 July 2008 to 15 years imprisonment. The appellant initially appealed against both the conviction and the subsequent sentence imposed. In an amended notice of appeal the appellant indicated that the appeal lies now only against the sentence imposed.

[2] Mr Rukoro, amicus curiae, informed this court that the appellant had abandoned his appeal against the conviction of the crime of rape. This was confirmed by the appellant. This decision was wisely made in view of the fact that the appellant had in his warning statement admitted that he had sexual intercourse with the victim and elected not to testify himself after the closure of the state’s case.

[3] In a notice of appeal bearing only the datestamp of the Namibian Prison Service of 29 June 2011 the appellant mainly dealt with what he perceived to be grounds of appeal against the conviction. This notice of appeal was obviously drawn up without the assistance of a legal practitioner. In this notice of appeal the only complaint by the appellant against sentence, is that it was “unreasonable” without 3 elaborating on the reasons why he perceives the sentence to be so unreasonable. This however does not constitute a ground of appeal.

[4 In a document dated 24 June 2011 the appellant attempted to explain the late filing of his notice of appeal in support of his condonation application. In this document the appellant avers that he is not conversant in the English language and as a result did not have any knowledge in respect of where to file the notice of appeal. It was only when he was transferred to the Oluno prison that he was informed about the procedure to be followed in prosecuting an appeal.

[5] What is ironic however is that the appellant in this same document stated that his first notice of appeal (dated 23 August 2008) he had filed with the clerk of the court and that he was subsequently informed by the clerk of the court that the notice of appeal never reached the office of the clerk of the court. The appellant referred to a second document dated 23 January 2009 which had also been forwarded to the clerk of the court and this document apparently also did not reach the office of the clerk of the court.

[6] It is apparent from this document in support of his condonation application, in the first instance, that the appellant knew where he had to file his notice of appeal (namely with the clerk of the court), and secondly the appellant did not say when these notices of appeal had been forwarded to the clerk of the court. In both instances he merely mentioned the dates on which these documents had been written or prepared.

[7] The allegation by the appellant that he did not know where to file his notice of appeal is not bona fide in view of his own admission that he sent the notice of appeal to the clerk of the court. The appellant is furthermore vague in respect of when the first notice of appeal was forwarded to the clerk of the court. No date is provided.

[8] It is trite law that the onus rests on an applicant in an application for condonation to provide a satisfactory explanation to the court for his or her default as well as dealing with the prospects of success on appeal in respect of the merits of 4 the case. Where an applicant fails in respect of the first requirement the court may decide not to consider the prospects of success.

[9] This Court in Nashapi v S (CC 02/2004) [2013] |NAHCMD 291 per Cheda J, held that this Court will not sympathize with an untruthful applicant and where a litigant in his or her quest for justice seeks a sympathetic hearing, it is incumbent upon such litigant to take the court in its confidence by making a full disclosure of the circumstances which caused the delay in filing the notice of intention to appeal, timeously. This Court reminded litigants that a Court can only determine an issue on the basis of facts genuinely laid before it by those who seek a redress of wrongs either real or imagined, and when the truth is lacking the matter will no doubt be disabled in its fair and just adjudication.

[10] The appellant through amicus curiae appointed counsel, filed an amended notice of appeal in which the following three grounds were enumerated

‘1. The learned magistrate erred in law in not finding that there exists obvious substantial and compelling circumstances in this case as envisaged in section 3(2) of the Combating of Rape Act which justify the imposition of a lesser sentence than the sentence prescribed in subsection 1(a)(iii)(bb) (A)

2 The learned magistrate misdirected himself in passing a sentence in terms of section 3(1)(a)(iii)(bb) (A) without taking into account that the appellant was not only a first offender, but that he was also a youthful offender.

3. The magistrate erred in not looking at other obvious factors which would constitute substantial and compelling circumstances and over-emphasising on factors such as the gravity of the offence, which has resulted in the rest of the factors being ignored altogether during the passing of sentence.’

[11] Mr Rukoro submitted that the following substantial and compelling circumstances existed at the time of the commission of the offence: the appellant was a first offender; the appellant was a youthful offender (of 20 years old); no weapons were used during the commission of the offence; there was no evidence of physical injury to the victim; the unlawful act was not vicious and brutal; because of 5 his age, the prospects of rehabilitation is a real possibility; and that since his arrest until the date of his conviction appellant spend approximately 9 months in custody.

[12] The presiding magistrate in response to the amended notice of appeal stated that all the mitigating factors had been considered before concluding that there were no compelling and substantial circumstances in the matter entitling the court to deviate from the minimum prescribed sentence.

[13] I must at this stage mention that the appellant did file an condonation application for the late filing of the amended notice of appeal. It has been held by this Court that the phrase “substantial and compelling circumstances” does not mean “special” or “exceptional” circumstances. In S v Limbare 2006 (2) NR 505 (HC) Van Niekerk J stated the following:

‘In considering what circumstances are substantial and compelling, a court ought to take into account the many factors traditionally and rightly taken into account by courts when sentencing offenders; of course, in addition to any other factors. What these factors are able to convey is that the ultimate cumulative impact of those circumstances must be such as to justify a departure from the statutorily specified sentence.’

[14] It was submitted by Mr Lutibezi who appeared on behalf of the respondent that the alleged substantial and compelling circumstances mentioned by Mr Rukoro must be weighed against the following aggravating circumstances: that the victim of this crime is a child of tender age, namely 10 years old at the time of the commission of the offence; that the appellant was in a position of trust and authority over the victim, and in terms of s. 3(1)(iii)(cc) of the Combating of Rape Act, this fact alone attracts imprisonment for a period of not less than 15 years imprisonment; that the appellant breached the relationship of trust the parents of the victim had placed in him and the expectation that he would not harm her; that the appellant had shown no remorse; that the appellant had planned the commission of the offence which increases his moral blameworthiness; that the appellant had prevented the victim to scream by putting his hand over her mouth; that the appellant 6 was not under the influence of any substance; and that there was no peer pressure for appellant to commit the offence.

[15] Mr Lutibezi referred this court to a number of cases where the victims were young children and some of the perpetrators youthful offenders, like the appellant, in which cases this Court had imposed sentences of 20 years imprisonment. (See S v Simon Shaduka Case no; CC 3/2011; Ndakolo v The State (CA 8/2013)[2013] NAHCNLD 57; S v Petrus Matheus Case no. CC 23/2010; State vs Mwaala Iilonga CC 17/2012; S v Ananias Immanuel Masisuwa CC 21/2008)

[16] The trial magistrate prior to sentencing did take into account that the appellant was a first offender as well as a youthful offender and the fact that the victim did not suffer any physical injury as a result of the attack but stated that the crime of rape is serious abhorrent, and that the appellant abused his position of authority and trust.

[17] What further appears from the questioning by the magistrate of the appellant before sentence is that he was employed as a cattle herder, was unmarried, had no dependants, that he is an orphan, and has no siblings. It further appears from the evidence led that the appellant did not stop raping the victim of his own accord but let her go only because her friends had started calling for her. The appellant in order to evade arrest fled the scene and was only apprehended a week after the incident. It is further common cause that the victim was raped in her own home.

[18] It was stated in The State vs Vasco Kangulu Libongani (CA 8/2006): ‘There must be something more in the circumstances of the factors that are in favour of the accused for those circumstances to be able to measure up to the “substantial and compelling” mark within the meaning of s.3(2) of the Act’.

[19] In S v K 2011 (1) NR 1 (HC) this Court in sentencing a 17 year old perpetrator to 20 years imprisonment stated that it seemed worthwhile to repeat that young offenders cannot always hide behind their youthfulness when they are guilty of committing serious crime. 7

[20] There is no substance in the third ground of the amended notice of intention to appeal. It is trite law that when evaluating and assessing the evidence presented before it, the court looks at the evidence as a whole, including the evidence presented by and on behalf of the appellant to come to the correct conclusion. The magistrate in the court below did just that.

[21] Again as far back as 2005 this Court in Festus Israel Veundjua Kaanjuka case no. CA 132/2004, delivered on 21 February 2005 as per Damaseb JP stated the following:

‘Brutally against the vulnerable in our society, especially women and children, has reached a crisis point. Small children have become the target of men who are unable to control their base sexual desires. What once may have been unthinkable had now become quotidian occurrence. These crimes against the vulnerable in our society evoke a sense of helplessness in the national character. The courts are doing their utmost best, through very stiff sentences, to deter men from raping women and small children but apparently, without much effect. Rehabilitation and general deterrence should therefore have very little relevance when it comes to considering sentences for these kind of sexual offenders. I am aware that law do not make people moral, but the Courts as custodian of our laws must exact vengeance for peoples actions when those threaten the fabric of our society, lest the general populace lose faith in the legal system and resort to means not concordant with our Constitution. Those who commit despicable and heinous crimes against women and children, crimes that we have shamefully, now become accustomed to as a community, should expect harsh sentences from the Courts of this land.’

[22] In conclusion, firstly it must be and for the reasons mentioned, stated that the appellant was untruthful in his condonation application in which he tried to explain the reason why his notice of intention to appeal was filed out of time. Secondly, with regard to the prospects of success on appeal in respect of the merits and with due regard to the grounds of appeal reflected in the amended notice of appeal, I cannot conclude that the trial magistrate erred in his finding that there were no compelling and substantial circumstances warranting a lesser sentence than the prescribed minimum sentence. 8

[23] In S v De Klerk (SA 18/03)[2006] NASC 5 at p7 the Supreme Court quoted with approval the reasoning in S v Pillay 1977 (4) SA 531 (A) at 535 E-G where the following appears.

‘ Now the word “misdirection” in the present context simply means an error committed by the Court in determining or applying the facts for assessing the appropriate sentence. As the essential enquiry in an appeal against sentence, however is not whether the sentence was right or wrong, but whether the Court in imposing it exercised its discretion properly and judicially, a mere misdirection is not by itself sufficient to entitle the Appeal Court to interfere with the sentence, it 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. Such a misdirection is usually and conveniently termed one that vitiates the Court’s decision on sentence.’

[24] For the afore-mentioned reasons the application for condonation of the late filing of the initial notice as well as the application for condonation for the late filing of amended notice of intention to appeal is dismissed.

[25] In the result the following order is made:

The appeal is struck from the roll.

______EPB HOFF Judge

______A SIBOLEKA Judge 9

APPEARANCES:

APPELLANT: R Rukoro Amicus curiae, Lorentz Angula Inc., Windhoek

RESPONDENT: C Lutibezi Office of the Prosecutor-General, Windhoek