CASE NO.: CA94/2009

IN THE HIGH COURT OF NAMIBIA

HELD AT OSHAKATI

In the matter between:

STANLEY URI-KHOB APPELLANT

and

THE STATE RESPONDENT

CORAM: LIEBENBERG J & TOMMASI J

Heard on: 12 July 2010

Delivered on: 30 July 2010

APPEAL JUDGEMENT

TOMMASI J: [1] This is an appeal against the sentence of five (5) years imprisonment imposed in the Magistrate’s Court for the district of Eenhana held at Ohangwena on 23 January 2009. Mr Greyling appeared amicus curiae for the Appellant and Mr Wamambo appeared for the Respondent.

[2] The Appellant was charged with and convicted of contravening section 35(1)(a) of the Anti-Corruption Act, 2003 (Act 8 of 2003) (Corruptly soliciting or accepting or agreeing to accept from any person a gratification as an inducement to do or to omit doing anything in relation to the affairs or business of the agent's principal.)

[3] The Appellant noted an Appeal against both the conviction and sentence. The Appellant wisely abandoned his appeal against conviction and the Appeal was only heard in respect of the sentence.

[4] Mr Wamambo, counsel for the Respondent, submitted that the Notice of Appeal does not set out clear grounds as is required in terms of Rule 67 of the Magistrate’s Court and that the Court should therefore struck the matter from the roll. Mr Greyling contended on behalf of the Appellant that the Notice of Appeal discloses sufficient information to inform the Respondent of the case it is required to meet and that the Magistrate understood the Appellant’s ground sufficiently to respond thereto. For reasons given hereunder, this Court cannot entertain the Respondent’s objection to the Appellant’s Notice of Appeal.

[5] Counsel for the Appellant argued that the sentence imposed was so unreasonable that no court would have imposed the same sentence given the facts in the case; that it is shockingly inappropriate; and that this Court should interfere with the sentence.

[6] Counsel for Respondent reasoned that there are clear guidelines concerning circumstances under which an Appeal Court is entitled to interfere with sentence imposed by the trial court and referred this Court to authority where Parker, AJ, as he then was, in an unreported case, JOHANSEN KAREL HANSEN V THE STATE, CA68/2005 set out in a condensed form the principles enunciated in WILLY HAROLD HENDRICKS v THADEEUS A MUTOTA SHEWEDA Case No. 172/2003 at pp 24-5 (Unreported) as follow:

It is settled rule of practice that punishment falls within the ambit of the discretion of the trial court, and the discretion may be said not to have judicially or properly exercised if the sentence is vitiated by an irregularity or misdirection. [See S v Ndikwetepo and other 1993 NR 319 at 322 G] Another test applied by an appellate court is whether the sentence is so manifestly excessive that it induces a sense of shock in the mind of the appellate court. [See S v Giannoulis 1975 (4) SA 867 at 868; Ndikwetepo, supra, at 322 J – 323 C]. And in deciding whether a sentence is manifestly excessive, this Court ought to be guided mainly by the sentence sanctioned by statute, if applicable, or sentences imposed by this Court in similar cases; of course, due regard being had to factual differences [See S v Ndlovu and Another 1971 (1) SA 27 (RA) at 31B-C]”

[7] The above principles are clear but they are premised on the understanding that the trial Magistrate did in fact apply his mind to sentencing in a judicious manner by considering the crime, the offender, the interest of society and the general objectives of sentencing.

[8] In this case, the trial Magistrate, after listening to mitigation and the address by the State Prosecutor, imposed a sentence of 5 years’ imprisonment without any reasons. This explains the Appellant’s difficulty in formulating his grounds of appeal. In an unreported case ELIASER ANGULA v THE STATE (CASE NO CA09/2009 delivered on 28 October 2009) Liebenberg, J with Hoff,J concurring stated the following:

“It cannot be expected of the Appellant to draft a proper and valid notice of appeal if no reasons for his conviction were given. How can he attack the conviction if he does not even know what evidence was relied upon and what was rejected?”

[9] After the appeal was noted the trial Magistrate responded as follow:

“The sentence imposed was fair, just and reasonable and does not induce a sense of shock to justify interference by the High Court of Appeal”

This hardly constitute reasons as envisaged by Rule 67 (3) and it certainly does not inform the Appellant and this Court what factors were taken into consideration in arriving at the conclusion that the sentence was” fair, just and reasonable”.

[10] In S v KASITA 2007 (1) NR 190 (HC) Silungwe AJ, on review had the following to say in respect of this issue on page 191 C-E:

“ While it is trite that sentencing is pre-eminently the duty of the trial court, it is incumbent upon such court to exercise its discretion judicially. Moreover, such court is ultimately bound by decisions of a superior court. After all, it is always needful for the sentencer to determine with care what appropriate sentence would, in the peculiar circumstances of the case, best serve the interests of society as well as the interests of the offender. It is certainly in the interests of society that the accused receives an appropriate sentence” (my emphasis)

[11] It would serve Magistrates well to furnish the accused with reasons for sentence at the time of sentencing. In formulating reasons for sentence the accused is informed what the court considered. In S v Kasita supra on page 191 H – F, Silungwe, AJ states the following:

An accused person is entitled to be informed by the sentencer whether his mitigation, if any, or a part thereof, has been taken into consideration and the reasons therefor. In other words, the offender is entitled to be given reasons for the sentence imposed against him/her. Failure to do so, as in this case, is a serious misdirection. (My emphasis)

[12] In this case there has been a failure by the court a quo to provide reasons to the Appellant in the first instance and a further failure to provide adequate reasons after the Appeal was noted. His failure to do so constitutes a serious misdirection.

[13] Having established the above, this Court is left to consider what sentence should be passed in the place of the court a quo.

[14] The facts of the case are briefly as follow: The Appellant, a police officer, was charged together with two co-accused. The two co-accused were arrested on a charge of stock theft. They, with the assistance of a third party, approached the Appellant with an offer to pay the Appellant to destroy the evidence contained in the docket of the stock theft case. The Appellant agreed to accept N2500.00 of which he in fact received N$1100.00, to do what he was requested to do. The evidence was not destroyed and the two co-accused reported the matter to the Police. The Magistrate convicted and sentenced all three accused persons to five (5) years’ imprisonment.

[15] The Appellant opted not to testify under oath in mitigation but when addressing the court in mitigation, placed the following before the court a quo: He was a family man; the sole breadwinner in the family; the father of six children all in his care; the children are orphans of his deceased sister and he lives with them and his mother. He requested the court to impose a fine. The accused is a first offender.

[16] The crime is undoubtedly a serious offence given the fact the legislature deemed it necessary to make provision for a fine not exceeding N$500 000.00 or imprisonment for a term not exceeding 25 years or to both such fine and such imprisonment.

[17] It has been stressed in a number of authorities that corruption is a serious crime for many reasons i.e the fact that it is difficult to detect; it erodes the principals of good governance; lowers the moral tone of a nation; and eats at the very fabric of society, to name but a few. [See S V SHAIK AND OTHERS 2007 (1) SACR 247 at page 319; ANDREAS HAIKERA v THE SATE an unreported Case, No. CA 137/07 delivered on 23 June 2008).

[18] The aim is to stem the flow of corruption by expressing in clear and unequivocal language that those who participate in corrupt practices would be dealt with sternly by our courts to protect the interest of society.

[19] An aggravating factor in this matter is the fact that the Appellant was a police officer at the time when he undertook to destroy evidence in a stock theft case, a matter that in itself was a very serious offence. His duty was to protect victims of crime and he was placed in a position of trust which enabled him to have access to case dockets. A destroyed docket could result in an obstruction of the course of justice and / or cause inordinate delays in finalising criminal matters.

[20] Having regard to the seriousness of the offence; the interest of society; and the particular aggravating fact that the Appellant was a police officer, this Court can only agree with the court a quo that a term of effective imprisonment is the only appropriate sentence to deter would-be offenders from participating in corrupt practices.

[21] The Court is however mindful of the personal circumstances of the Appellant; the Appellant is a first offender; the case docket was not destroyed; the Appellant did not initially solicit the transaction but was approached by a third party on behalf of his co-accused; and the fact that “one cannot lose sight of the individualised nature of the sentencing process and it is irregular to sacrifice the accused on the altar of deterrence” as per PLASKET J in S v MAKO 2005 (2) SACR 223 (E) on page 228

[22] Given the above; having considered sentences imposed in similar cases bearing in mind the factual differences; and the statutory penalty provision, this court is of the opinion that a part of the sentence imposed by the court a quo should be suspended. (See S V NAKALE AND OTHERS (NO 2) 2007 (2) NR 427 (HC); ANDREAS HAIKERA v THE STATE (supra))

[23] In the result the Court makes the following order:

1. The appeal against sentence succeeds to the extent that it now reads as follow:

5 (five) years' imprisonment of which two (2) years is suspended for a period of five (5) years on condition that the accused is not convicted of contravening section 35(1) (a) or section 38 (b) of the Anti-Corruption Act, 2003 (Act 8 of 2003) committed during the period of suspension.

___________________________

TOMMASI J

I concur

___________________________

LIEBENBERG J