CASE NO.

: CA 169/2008

NOT REPORTABLE

IN THE HIGH COURT OF NAMIBIA

In the matter between:

KAHENGERE NGUZERUA
APPELLANT

and

THE STATE
RESPONDENT

CORAM: HOFF, AJP. et NDAUENDAPO, J

Heard On: 2010.07.16

Delivered On: 2010.07.16 (Ex tempore)

APPEAL JUDGMENT

HOFF, J: [1] The appellant in this matter was charged with the

offence of escaping from lawful custody in terms of our common law

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and was sentenced to 3 years imprisonment on the 10 th of July 2008.

The appellant now appeals against the sentence imposed.

[2] It is common cause that the appellant pleaded guilty to the

charge, that he was questioned by the magistrate who subsequently

entered a plea of not guilty and that one witness was led by the State,

whereafter the appellant was convicted from escaping from lawful

custody.

[3] It is also clear from the record, that during the proceedings, the

appellant was not satisfied with the particular prosecutor prosecuting

him and for that reason after some exchange of words between

himself and the magistrate, he excused himself from the proceedings.

The appellant was subsequently sentenced to three years

imprisonment in his absence.

[4] This Court raised the point with counsel appearing on behalf of

the respondent Mr Campher that it was not prudent for the magistrate

before sentencing the appellant not to have given him the

opportunity to address the Court and put mitigating factors before the

Court. Mr Campher agreed that, that would have been a

preferable route to follow by the magistrate, and I agree with that.

[5] I am of the view the fact that the magistrate did not offer the

appellant an opportunity to address him under these circumstances in

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mitigation of sentence, constituted an irregularity. For that reason,

this Court is entitled to interfere with the sentence imposed.

[6] The conviction in this matter is accordingly confirmed. The

sentence imposed is set aside. The matter is referred back to the

magistrate and ordered to give the appellant an opportunity to place

mitigating factors before the Court, if the appellant so wishes, and

thereafter to sentence the appellant afresh. The magistrate should

also, in sentencing the appellant take into account the period that the

appellant has served since the sentence was imposed, until the date

of imposing this new sentence.

______________

HOFF, AJP

I agree

__________________

NDAUENDAPO, J
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ON BEHALF OF THE APPELLANT IN

PERSON

Instructed by:

ON BEHALF OF THE RESPONDENT ADV.

CAMPHER

Instructed by: OFFICE OF THE PROSECUTOR GENERAL