Appellant loses burglary appeal

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New Era Newspaper Namibia
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Windhoek

An Okahandja resident who appealed his sentence on a housebreaking and theft conviction in the Okahandja Magistrate’s Court was left disappointed when High Court Judge Dinah Usiku dismissed the appeal this week.

Judge Usiku in concurrence with Judge Alfred Siboleka found that no special mitigating factors existed that would influence the sentencing court to impose a lesser sentence. Ruben Mwaala, who was convicted on his own admission that he broke into the complainant’s house and stole items valued at N$28 300, was sentenced to 48 months direct imprisonment.

None of the stolen items were recovered. Mwaala argued in support of his appeal bid that the magistrate had erred on the facts or law ,in that he imposed a sentence that is unreasonable, shocking and inappropriate in the sense that the appellant pleaded guilty and did not waste the court’s time.

Mwaala further argued that the magistrate erred by ignoring the fact that he had shown remorse and overemphasised the deterrence aspect of the sentence and failed to take into account that Mwaala was the breadwinner in his family with minor children that he takes care of and that he was gainfully employed.

According to Judge Usiku, the magistrate in his reasons clearly stated that he took into account that the offence of housebreaking with intent to steal and theft is a very serious offence, the value of the stolen property is very high and the properties have not been recovered.

Furthermore, the judge said, the magistrate also took into account that the offence was premeditated, as the applicant knew the complainant was not at his house, which was an aggravating factor in his view.

Judge Usiku further noted that the magistrate went on to explore the fact that offences of housebreaking with intent to steal and theft were on the increase, which necessitated a sentence with a deterrent effect.

The judge found that the magistrate had clearly stated in his reasons for the sentence that he has taken into account the appellant’s age, his family responsibilities and further that the appellant had another pending housebreaking case when he was arrested.

Judge Usiku stated that the facts of the matter are that the appellant broke into the complainant’s house and stole everything. She cited previous judgments where it was stated that custodial sentences for housebreaking with intent to steal and theft are in place, whether or not the accused was a first offender or not, for the reason that the crime has escalated without any signs of abating.

In any event, the judge said, when it comes to interference by the Appeal Court, the issue is not whether the sentence imposed was wrong or right, but whether the court imposing the sentence exercised its discretion properly and in line with judiciary principles. She stated that Mwaala in his own words indicated that the sentence was not wrong and only requested that a part of the sentence be suspended.

However, the judge said she is of the view that the reasons set out by the magistrate when he sentenced Mwaala are sound and that the sentence was proper and judicial and she did not see any reason to interfere with the sentence.

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