Ephrahim v S (CA 18/2009) [2009] NAHC 80 (12 October 2009);

Group

Full judgment

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 9th 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.

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