An appeal by a resident of Gobabis in the Omaheke region who was convicted of murder and possession of a firearm without a licence and was sentenced to an effective prison term of 23 years in the Gobabis Regional Court was dismissed in the Windhoek High Court last week.
Judges Naomi Shivute and Claudia Claasen found that the magistrate that convicted and sentenced Alois Gariseb during March 2019 did not commit an error in either the verdict or the sentences.
He was convicted of murder with direct intent for shooting a 17-year-old boy in Gobabis supposedly over a bicycle of his that was robbed by the deceased from “certain boys”.
Gariseb lodged the appeal against both conviction and sentence after he was sentenced on 14 March 2019 and accused the magistrate of relying on the uncorroborated evidence of family members of the boy he killed and hearsay evidence from other State witnesses including the police.
He further claimed that the magistrate rejected his version that the deceased was killed accidentally when a shot went off during a struggle for the pistol.
According to the appeal judges, there was corroborated evidence presented during the original trial by three witnesses that there was no wrestling between the accused and deceased over the pistol.
They stated there was evidence from three eyewitnesses that Gariseb took out the pistol from his waist and shot the deceased in cold blood.
“However, all three witnesses who saw what happened said there was no wrestling or altercation and that the deceased was shot without even an exchange of words. We, therefore, find that the appellant’s argument in this regard has no merit,” the judges stated.
They went on to say that the trial court made a credible finding that the versions of the State witnesses were satisfactory and they find no basis to interfere with that finding.
According to the judges, it seems from Gariseb’s testimony that the trial court correctly concluded that he was postulating two different propositions, namely self-defence and lack of intention and that the regional court made a finding that neither defence can be availed to him.
“The appellant could not have acted in self-defence because he was not under imminent attack and the other requirements of self-defence were not met.
“Furthermore, the trial court concluded that the shot could not have gone off accidentally under the circumstances, because no jostling for the firearm with the deceased had taken place. According to eyewitnesses, there was no altercation and the firearm was discharged without any exchange of words.”
On the sentence, the judges stated they cannot interfere as the magistrate exercised his discretion properly when he passed the sentence.
According to the appeal judges, the magistrate took into consideration that Gariseb was convicted of murder with direct intent when sentencing him.
“The deceased was a 17-year-old boy whose young life had been lost unnecessarily. The right to life is a fundamental right. The offence committed was serious. The court took into account the interest of society as well as the persona; circumstances of the accused.
“The appellant was not a first offender and the time spent in custody and the consideration that he did not show any remorse was also taken on board,” the judges of appeal further stated.
2020-07-22 13:39:02 | 11 days ago