Windhoek
One of four men convicted in the Otjiwarongo Regional Court in 2013 on charges of housebreaking with intent to rob, and robbery and theft of a motor vehicle, had his four-year sentence on the motor theft count increased seven-fold to 30 years on appeal in the Windhoek High Court.
Despite several warnings by High Court Judges Dinah Usiku and Alfred Siboleka that he stood the risk of having his sentence increased if he persisted in his appeal against his conviction and sentence, Simon Kambindu, now 26, insisted that he was wrongly convicted and would take his chance.
That chance backfired on him and instead of being considered for parole in about four years time he will now spend the next 30-odd years in prison. He was sentenced to eight years on the housebreaking with intent to rob and robbery conviction and four years on the vehicle theft conviction on September 26, 2013, and the sentences were ordered to run consecutively.
Judge Usiku who wrote the judgement with Judge Siboleka concurring said that it is trite law that a Court of Appeal can only interfere with the discretion of a trial court regarding sentence on very limited grounds, such as when the trial court has not exercised its discretion judiciously or properly.
“This occurs when the trial court has misdirected itself on facts material to sentencing,” the judges said. They further stated that it can also be inferred where the trial court acted unreasonably and it can be said that the sentence induces a sense of shock, or there exists a striking disparity between the sentence the High Court would have imposed, or if the sentence appealed against appears to the appeal court to be so inappropriate as to warrant interference by this court.
According to Judge Usiku, in her view the sentence of four years for motor vehicle theft is disturbingly inappropriate when regard is had to the manner in which the complainant was attacked and his motor vehicle stolen from him.
“The appellant attacked the complainant whilst wielding a firearm and inflicted injuries on his person,” she emphasised. The judge further explained her decision to increase the sentence by quoting the Motor Vehicle Theft Act, 12 of 1992, which states that any person who is convicted of an offence under this Act shall be liable to not less than 30 years in prison, if violence or threat of violence involving a firearm or other dangerous weapon is used.
In the current instance, she said, the complainant was robbed by armed assailants, and the motor vehicle was used to carry the goods that they removed from the complainant’s home, and they left him bound on both hands and legs. She said the complainant testified that he was hit with a firearm as he tried to defend himself.
“He was told that if he were to scream he would be shot. He was then forced to lie on his stomach as they tied him up with two ropes. He sustained several injuries as a result of the attack on him by the assailants,” Judge Usiku summarised the testimony.
The matter arises from an attack on elderly farmer Koitjie Opperman on November 1, 2006 at Farm Corrigenda in the Osire District.
Together with Kambinda were Rudolf Xoagub, 35, Mervin Kambindu, 30, and Ismail Tjipuka, 31. They tied up the victim, beat him and stole his car, six firearms and household goods and fled the crime scene in the stolen car, but crashed it into an anthill and then continued on foot.
The police followed their tracks from the scene of the accident and arrested them in Otjiwarongo.
All the stolen goods were recovered.