WINDHOEK – A 44-year-old first offender had his effective three-year prison term slashed to 18 months after a review by two judges.
Samuel Natangwe Nakanyala was convicted in a magistrate’s court for assault with intent to do grievous bodily harm and sentenced to 48 months’ imprisonment, of which 12 months were suspended on condition of good conduct.
On review Judge Christi Liebenberg, with Judge Naomi Shivute concurring, found the sentence “startlingly inappropriate” and substituted it with a sentence of 24 months of which six months were suspended for five years on condition that he is not convicted of assault within the period of suspension.
Judge Liebenberg said the attack which led to the sentence occurred in the safety of the complainant’s own house and thus justified the imposition of a custodial sentence. However, he said, the accused was a first offender at the age of 44 years and is the sole caregiver of his wife and four minor children, which he is able to do through casual work and this was to be balanced against the prevalence of the offence and the seriousness of the injuries sustained.
The medical evidence adduced was not particularly forthcoming, the judge remarked, as only the J88 form was submitted. This form only showed that the complainant suffered a bruise to the left side of his face and a fractured forearm.
According to the judge, there was nothing in the report that explained why the complainant had to be hospitalised for two months and whether this was because of the fracture.
He said the only evidence that the complainant spent two months in hospital came from the complainant himself. This in the absence of reliable medical evidence could not lead to the conclusion that the attack was serious, the judge remarked, but in the same vein stressed that this did not mean that the offence committed was not serious.
He said that for the purpose of sentence the court must look at the facts of a particular case and after weighing these up together with the personal circumstances of an accused, decide on a sentence.
“After due consideration of all competing factors, I have no doubt in my mind that in the circumstances of this case, a custodial sentence of four years’ imprisonment is startlingly inappropriate, induces a sense of shock, and there is a striking disparity between the sentence imposed by the trial court and that which would have been imposed by the court of review,” said Judge Liebenberg.