2015-01-23Staff Report 2 By Roland Routh WINDHOEK - Two judges of the High Court on Tuesday denied a convicted child rapist the chance to appeal his 40-year sentence in the Supreme Court. Festus Israel Veundjua Kaanjuka was in 2005 convicted of raping two eight-year-old girls and sentenced to 20 years for each rape to run consecutively in the Windhoek Regional Court. He appealed the sentence dismissed in the High Court. After four years he lodged an application for leave to appeal the High Court judgement to the Supreme Court. While he did not apply for condonation of the late appeal, Judge Collins Parker, who wrote the judgment with Judge President Petrus Damaseb concurring, granted him condonation to put the matter to bed. According to Judge Parker, the mere possibility that another court might come to a different conclusion is not sufficient to justify the granting of leave to appeal. The judges said that the court of appeal had considered the main grounds of appeal - that the sentence was shockingly inappropriate - unconvincing and found that the magistrate who dished out the sentence did not misdirect himself. Judge Parker said the argument advanced that since the two offences were carried out close to one another, the offences should have been treated as one for purpose of sentencing does not hold water. He said after much deliberation, the appeal court came to the conclusion the trial court acted properly by treating each offence in its own right and meting out punishment for each offence separately. He said what is significant is that while the appeal court appreciated the fact the cumulative sentence “produced a very long term of imprisonment for the applicant” it decided the sentence did not induce any sense of shock. He further contended the argument of State Advocate Innocencia Nyoni the appeal court was satisfied the magistrate did not misdirect himself in the way he approached the issue of sentence and the fact the appeal court might have imposed a different sentence if it sat as the court of first instance was no warrant for interfering with the sentence imposed as valid. “Thus, the appeal court was alive to the well settled rule of practice that punishment falls within the ambit of the discretion of the trial court and to the circumstances in which an appeal court may interfere with the sentence imposed, as well as the tests applicable in those circumstances,” Judge Parker stressed. The court of appeal had no reasonable doubt concerning the appropriateness of the sentence, he continued. According the judges, they were not satisfied there is a reasonable prospect that the Supreme Court may take a different view about the sentence imposed by the trial court and confirmed by the court of appeal. “It follows, therefore,” they said, “that the applicant failed to show that he has a reasonable prospect of success on a further appeal.” 2015-01-23Staff Report 2
