REPORTABLE

CASE
NO.: CA 18/2009

IN THE HIGH COURT OF NAMIBIA

HELD IN OSHAKATI

In the matter between:

ALUDHILU EPHRAIM APPELLANT

and

THE STATE RESPONDENT

CORAM:
LIEBENBERG, A.J. et
SHIVUTE, A.J.

Heard on: 15 July 2009

Delivered on: 12 October 2009

APPEAL JUDGMENT

LIEBENBERG, A.J.:
[1] Appellant was arraigned in the
Magistrate’s Court Oshakati on a charge of theft of cash in the
amount of N$ 60 525 to which he initially pleaded not guilty. During
the trial he changed his plea to one of guilty and was subsequently
convicted and sentenced to: 5 years imprisonment suspended in
toto for 3 years on condition of (i)
good conduct and (ii) that appellant repays the complainant the
sum of N$ 60 525 on the following terms: N$ 5 000
on the date of sentence (15/03/2007) and the balance of N$ 55 525 to
be fully paid on or before 31/12/2007.

[2] It is common cause that appellant paid the amount of N$ 5 000
as required but failed to compensate the complainant for the
outstanding amount as per the condition of the suspended sentence.
As a result thereof appellant was arrested and brought before the
court on 28 January 2008 when the suspended sentence of 5 years
imprisonment was put into operation.

[3] It is furthermore common ground that appellant made no
(further) payments other than the N$ 5 000 and appellant contended
that he approached the magistrate in chambers during October 2008 to
inform her that he was unemployed and therefore unable to settle the
outstanding amount on the due date. There is nothing on record that
appellant had made a formal application for an extension of the due
date, and it merely seems to have been a notification to the
magistrate that appellant might not be able to comply with the
conditions of suspension on that date. Ms. Kishi, appearing on
behalf of the appellant, criticised the magistrate for not acting at
the time and submitted that the due date should already have been
extended at that stage. However, payment was not due before 31
December 2007 and I do not believe that the magistrate at that stage
was under any duty to determine whether appellant would be able to
raise the money before the due date or not. By then, appellant was
not in breach of any condition of the suspended sentence imposed on
him and, although there was an anticipation on the part of the
appellant that he might not be able to settle the amount on time, the
magistrate cannot be faulted for not considering the “application”
at that stage, as there was no basis for bringing such application.
Once a condition of suspension was breached i.e. appellant’s
non-compliance with the compensatory order made against him, the
court would have been in the position to entertain an application to
either extend the period for payment or to order the suspended
sentence to become effective.

[4] The appeal lies against the sentence of 5
years imprisonment that was put into
operation on 28 January 2008 and the main grounds, as set out in the
appellant’s Notice of Appeal dated 17 March 2008 are that
appellant, in view of the financial assistance offered to him by his
employer (in January 2008), should have been given a second
opportunity to pay the outstanding amount after the due date.

[5] An Amended Notice of Appeal was only filed
on the 9^th
of July 2009 followed by an Application for Condonation for the late
filing in which appellant explained in his affidavit that he only
became aware of his right to appeal in prison after he had started
serving his sentence. It was contended that neither the magistrate
nor the appellant’s counsel explained these rights to him at
the end of the trial. The record of the proceedings does not
indicate that the magistrate explained to the appellant that he had
the right to appeal against the sentence imposed - most probably
because he was legally represented. In order to avoid the situation
where appellants during appeal proceedings merely rely on the court a
quo’s failure to explain to the
accused persons their right to appeal (in circumstances where one
would have expected defence counsel to have done so), it is proposed
that a presiding magistrate, as a matter of principle, explain this
right, irrespective of whether the accused is legally represented or
not.

[6] Whether appellant in this case only came to
know about his right to appeal against sentence after he started
serving the sentence, is doubtful, because he only started serving
his sentence ten months
after he had been sentenced and therefore had ample time and
opportunity to inquire about the possibility of appealing his
sentence. Had the appellant been só aggrieved as he now wants
this Court to believe, then one would not have expected him to wait
until his sentence had been put into operation before instituting
appeal proceedings but that he would rather have sought legal advice
soon after he had been sentenced. It seems to me that this appeal
was sparked off by the sentence of 5 years imprisonment that had been
put into operation and nothing else.

[7] Mr. Haindobo, appearing on behalf of the
respondent, submitted that appellant’s legal representative
would have explained to the appellant his right to appeal and that
the Court therefore had to reject the explanation. That might be the
position, however, there is nothing on record gainsaying appellant’s
explanation and therefore this Court, in the circumstances, will
prima facie
accept the explanation as being reasonable as to why compliance was
not given to the Rules of Court. The reasonable prospects of success
will become evident later in the judgment.

[8] Appellant in the amended notice raised several grounds of
appeal which can be summarized:

• 
  That the sentence is disproportionate to the crime and disturbingly
  inappropriate.

  
  

• 
  That the sentence is grossly excessive and induces a sense of shock.

  
  

• 
  That in sentencing the court disregarded the personal circumstances
  of the appellant; particularly by sentencing indiscriminately with
  complete disregard to appellant’s young age; and also that he
  is a first offender.

  
  

• 
  That the sentence is
  not in conformity with sentences imposed in similar cases which
  warrant the conclusion that the magistrate did not exercise her
  discretion in an arbitrary manner.

  
  

• 
  That the magistrate misdirected herself when
  effecting the full term of imprisonment in that she did not
  proportionally reduce the term with the
  partial restitution (N$ 5 000) already made by the appellant.
  

  
  

[9] In support of the contention that the
sentence imposed is too severe and not in conformity with sentences
imposed by other courts in similar cases the Court was referred to
the cases of The State v Sylvia
Condentia van Wyk and
Another Case No. CC 7/2008
(unreported) delivered on 05.06.2009; and S
v Ganes 2005 NR 472 (HC). In the Van
Wyk case the accused defrauded her
employer of more than N$ 800 000 while the amount involved in
the Ganes matter
exceeded one million Namibian dollars. Although the crimes committed
in both these two cases were fraud and the amounts involved
substantially more than what appellant in the present case had
stolen, the accused persons in those cases, unlike the appellant, had
already fully compensated the
respective complainants at the stage of sentencing. From both
judgments it is evident that in mitigation of sentence this fact has
weighed heavily with the court, a factor the court was entitled to
take into consideration when sentencing. In the first mentioned case
a fine of N$ 20 000 or 3 years imprisonment plus a further 3 years
imprisonment suspended on condition of good conduct was imposed;
while in the latter case the court imposed a fine of N$ 100 000 or 2
years imprisonment plus a further 8 years imprisonment of which 6
years were conditionally suspended.

[10] The relevant facts of the two
aforementioned cases differ substantially from the facts of the
instant case and in my view, do not serve as authority for the
contention that the sentence imposed by the magistrate is not in
conformity with sentences imposed by other courts for similar crimes.
It has become the norm for courts to impose direct imprisonment in
suitable cases of theft or fraud involving substantial amounts of
money, mainly to deter would-be offenders to indulge in similar
crimes. When considering the term of imprisonment, a compelling
mitigating factor, besides the accused’s personal
circumstances, would be the ability of the accused to make good the
loss the complainant had suffered. The sentence of 5 years
imprisonment imposed in the present case could, with regard to the
amount involved, be seen to be severe, but it is not shockingly
inappropriate when regard is had to all the circumstances of the
case. Sentencing lies with the trial court and an appeal Court will
only interfere with the sentence imposed if it is satisfied that the
sentence imposed is not a reasonable one, or where the trial court’s
discretion has not been judiciously exercised. In S
v Shikunga and Another NR 156 (SC) at
173B-F it was said that a court of appeal will interfere in
circumstances where the trial court has misdirected itself on the
facts or the law (S v Rabie
1975 (4) SA 855 (A)); or the sentence that is imposed is manifestly
inappropriate and, induces a sense of shock (S
v Snyders 1982 (2) SA 694 (A)); or is
such that a patent disparity exists between the sentence that was
imposed and the sentence that the court of appeal would have imposed
(S v Van Wyk
1992 (1) SACR 147 (Nm)); or, where there is an overemphasis of the
gravity of the particular crime and an under-emphasis of the
accused’s personal circumstances ( S
v Maseko 1982 (1) SA 99 (A) at 102; S
v Collett 1990 (1) SACR 465 (A)).

[11] It was
furthermore submitted on behalf of the appellant that the court a
quo ought to have considered a fine
which the appellant then could have paid over a period of time; or a
wholly suspended sentence without a condition of compensation coupled
therewith. In the same breath it was argued that the court did not
apply its mind properly by ordering the appellant to pay compensation
as he was not in the position of doing so, which means that in
effect, he was sent to prison. I pause here to say that in
mitigation of sentence Mr. Ujaha, who at the trial appeared on behalf
of the appellant, submitted that a fine of N$ 3 000 could be paid and
that appellant offered to
fully compensate
the complainant in monthly instalments of N$ 1 000 as from April
2008.

[12] It seems to me that had the court a
quo imposed a fine in relation to the
amount stolen by the appellant, then he, on the alternative, would in
effect have been sentenced to direct imprisonment because he was not
in the position to pay a fine of more than N$ 3 000. That was the
only amount the appellant had available to pay a fine and to now
argue that the fine could have been deferred by the court, is not
supported by the appellant’s submissions in mitigation of
sentence. There he said he only had the amount of N$ 3 000 for a
fine and then offered to pay half his monthly salary of N$ 2 000
towards compensation for the complainant. He was clearly not in the
position to pay any significant amount as a fine and
to compensate the complainant (from his salary) at the same time.
The court was obviously alive to this fact and therefore, instead of
a fine, imposed a wholly suspended sentence coupled with the
condition of compensation to be paid to the complainant.

[13] I do not believe that the appellant at this
stage can complain that the magistrate should not have made payment
of compensation a condition of suspension, if that is what he had
offered to
pay in mitigation of sentence. One cannot have your cake and eat it.
If the appellant well knew that he was in no position to compensate
the complainant, then he should have informed the court from the
outset and the court in all probability would have imposed a
different sentence. That submission thus, is without merit.

[14] In the present
case the magistrate clearly did take into account the accused’s
personal circumstances and tried to keep him out of prison by
imposing a wholly suspended sentence coupled with a condition for
restitution. In the circumstances a partly
suspended sentence would not at all
have been inappropriate. By imposing a wholly suspended sentence the
learned magistrate not only afforded appellant the opportunity of
staying out of prison, but also allowed him to remain employed and to
find ways and means to raise funds to compensate the complainant for
the money he had stolen from the complainant. The submission that
the magistrate disregarded the appellant’s personal
circumstances when sentencing, ignoring his young age and the fact
that he is a first offender, also, has no merit as the magistrate,
when passing sentence, referred to the accused being a first
offender. By then the accused had already reached the age of maturity
and he could not have expected from the court to be treated as a
“teenager” being “immature”, as stated on the
papers. From the magistrate’s reasons it is evident that due
consideration was given to the accused’s personal
circumstances, particularly his willingness to compensate the
complainant - factors clearly reflecting in the sentence imposed.

[15] What remains to be considered, as contented
by Ms. Kishi, is whether the magistrate misdirected herself by not
reducing the sentence proportionally when effecting the term of
imprisonment as the appellant by then had already made one down
payment of N$ 5 000 as per the court order. Respondent submitted
that the amount already paid is insignificant
compared to the full amount appellant had to pay and therefore, the
court was entitled to disregard it.

[16] The appeal record
does not reflect the proceedings of 28 January 2008 when application
was made to have the suspended sentence put into operation, except
for the magistrate in her additional reasons dated 9 July 2009,
stating that appellant had breached the conditions of suspension
which he had fully understood when he was sentenced. It is therefore
not clear from the record what reasons the appellant then advanced
when opposing the application and which facts were under
consideration when the application was heard. The only reason seems
to be that appellant failed to comply with the condition of
suspension ordering him to compensate the complainant in full by the
end of December 2007. It is not in dispute that appellant made no
payment except for the N$ 5 000 paid on the date of sentence.

[17] The magistrate had a judicial discretion under the Criminal
Procedure Act, 1977 to either (further) suspend the operation of
sentence for instance, to extend the date of payment (s. 297 (7)) or
to put it into operation (s. 297 (9)). Further suspension of the
operation of sentence may be granted once the person concerned
(accused) has satisfied the court that, through circumstances beyond
his control, he was unable to comply with any relevant condition of
the suspended sentence or for any other good and sufficient reason.
The onus thus lies with the accused person.

[18] As stated above, for reasons unknown to us, the appeal record
does not reflect court proceedings of 28 January 2008 during which
the State would have applied for the suspended sentence to be put
into operation; nor what explanation (if any) appellant had given at
the time.

[19] That
notwithstanding, the magistrate’s decision to put into
operation the suspended sentence, is not subject to appeal. See: R
v Khalpy 1958 (1) SA 291 (C); Gasa
v Regional Magistrate for the Regional Division of Natal
1979 (4) SA 729 (N); S v Helm
1980 (3) SA 605 (T). The reasons advanced for this conclusion derive
from the cases of R v Dunn
1929 TPD 53 and R v Khalpy
(supra) which were stated in S v Helm
(supra) at 605G – 606B as follows:

“Briefly
stated, they are

(a) proceedings under what
is now s 297 are taken because of non-fulfilment of the conditions of
suspension, and such proceedings do not amount to a conviction or a
sentence;

(b) the
order putting the suspended sentence into operation does not
constitute a ‘resultant sentence’ from a conviction.

This view is based on the
wording of what is now s 309 (1) (a) which, as far as is relevant,
reads:

‘any
person convicted of any offence by any lower court … may
appeal against such conviction and against any resultant sentence or
order…’

When a
person has been given a suspended sentence, that sentence is the
‘resultant sentence’, and not the ‘subsequent’
putting into operation of that suspended sentence. This order
putting the suspended sentence into operation results from the
breaking of the conditions of suspension and, furthermore, it is a
matter in the discretion of the court issuing that order.”

[20] The reasoning set
out in the aforementioned cases is sound and we are equally of the
view that the discretion of a magistrate to put into operation a
suspended sentence or not, is not subject to appeal. This ground of
the appellant’s appeal against the putting into operation of
the suspended sentence is accordingly not considered.

[21] Notwithstanding, it must be pointed out
that where application is made to have a suspended sentence put into
operation the court has three options namely, (a) to further suspend
the operation of the sentence or the fine imposed, as the case may
be, subject to any existing condition or such conditions as could
have been imposed at the time of such suspension (s 297 (7)); or (b)
on good cause shown, amend any such condition (s 297 (8) ); or
(c) put into operation or not, the sentence which was suspended (s
297 (9) ). From the provisions of s (7) of s 297 of the
Criminal Procedure Act, 1977 it is clear that the court, during such
application, may not alter or substitute the sentence that was
suspended, but only the conditions of
suspension. Thus, in this case the
trial court in any event, would not have been able to reduce the
sentence to commensurate with the amount in compensation still
outstanding, as proposed by Ms. Kishi.

[22] Returning to the
application for condonation of the late filing of the amended notice
of appeal, we, for the foregoing reasons, are convinced that there
are no prospects of success on appeal.

[23] In the result the following order is made:

1. The application for
condonation of the late noting of the appeal is

dismissed.

2. The appeal against sentence is equally dismissed.

_____________________

LIEBENBERG, A.J.

I agree

_____________________

SHIVUTE, A.J.