S v Sullaphen

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Salionga J
• Judgment Date: 29 October 2021
• Docket Number: HC-NLD-CRI-APP-SLA-2020/00028
• Hearing Date: 08 October 2021
• Court: Northern Local Division, Oshakati
• Citation: 2021 JDR 3020 (NmO)

Salionga J:

[1]

This is an application by the State for leave to appeal against the sentence imposed

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Salionga J

by the Regional Court Magistrate sitting at Oshakati. Respondent was convicted upon his own guilty plea and was sentenced to a fine of N$ 20 000 and in default of payment five (5) years imprisonment.

The grounds of appeal:

[2]

The learned magistrate misdirected himself or erred in law and /or in fact when he sentenced the accused person by;

'1.1 Disregarding or paying insufficient regard to the seriousness of the offence committed by the respondent and failing to take account of the prevalence of cases of theft.

1.2 Disregarding or paying insufficient regard to the deterrent and preventative function that sentences in these circumstances should have.

1.3 Imposing a sentence which is so lenient that it induces a sense of shock and which is grossly inadequate as the learned Regional Court Magistrate did not consider that respondent was in a position of trust

1.4 Over emphasized the personal circumstances of the accused and the mitigating factors in this case.'

[3]

In S v Nowaseb 2007 (2) NR 640 Parker J stated that '… It has been stated in a long line of cases that in an application of this kind, the applicant must satisfy the court that he or she has a reasonable prospect of success on appeal.' 'Furthermore in S v Ningisa [1] and others Mainga JA has this to say;

'In determining whether or not to grant a convicted person leave to appeal, the dominant criteria is whether or not the applicant will have a reasonable prospect of success on appeal (R v Baloi (1) SA 523 (A)). From the very nature of things, it is always somewhat invidious for a judge to determine whether a judgment which he / she has himself/herself given may be considered by a higher court to be wrong, but that is a duty imposed by the legislature upon judges in both civil and criminal matters. As regards the latter, difficult though it may be for a trial court to disabuse his /her mind of the fact that he/she has himself/herself found the state case to be proven beyond reasonable doubt, he /she must, both in relation to questions of fact and of law, direct himself/herself specifically to the enquiry of 'whether there is reasonable prospect that the Judges of Appeal will take a different view…. In borderline cases the gravity of the crime and the

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consequences to the applicant are doubtless elements...