CASE NO: CA
27/2011

REPUBLIC
OF NAMIBIA

IN
THE HIGH COURT OF NAMIBIA, MAIN DIVISION

HELD
AT WINDHOEK

In the matter
between:

PETER ITAI
............................................................................Appellant

and

THE STATE
.........................................................................Respondent

CORAM: VAN
NIEKERK et PARKER, JJ

Heard: 21 May 2012

Delivered: 25 June
2012

___________________________________________________________________­­_____

APPEAL
JUDGMENT

VAN
NIEKERK, J: [1] This is an appeal against sentence from the
regional court sitting at Katutura, Windhoek. The appellant, who had
legal representation in the court a quo, pleaded guilty to ten
counts of fraud with a total value of N$299 000-00. The regional
court magistrate took the counts together for purposes of sentence
and sentenced the appellant to eight years imprisonment of which
three years are suspended for five years on condition that the
appellant is not convicted of the offence of fraud committed within
the period of suspension.

[2]
Before us Mr Uirab appears for the appellant as he did in the
court a quo. Mr Small acts for the respondent.

[3]
The appellant committed the acts of fraud in relation to his
employer, a welfare organisation, while he was holding the position
of administrative consultant and financial manager. He did this by
adding a digit to the amount payable on each of ten cheques
legitimately made out in his name. In other words, where a cheque had
been made out for, say, N$1 515 with the approval of the
complainant’s Board, he would afterwards increase the amount by
$50 000 by adding a 5 before the amount. It is not known whether he
cashed the cheques or whether they were paid into his bank account,
but it is common cause that he received the inflated amounts. The
offences were committed on the following dates and involved the
following amounts:

16 Dec 2006 N$50
000

17 Jan 2007 N$40
000

2 Feb 2007 N$10
000

9 Feb 2007 N$10
000

22 Feb 2007 N$60
000

22 Feb 2007 N$10
000

2 March 2007 N$50
000

19 March 2007 N$9
000

28 March 2007 N$40
000

18 April 2007 N$20
000

N$299 000 ­

[4]
The appellant is a first offender of Zimbabwean nationality. He was
30 years old when he committed the offences and 33 years old when he
was convicted and sentenced. He is married and has two young children
aged 6 and 2 years. In fact, the younger one was born while he was in
custody awaiting trial and at the time of sentence he had not yet
seen her in the flesh. The appellant spent just over 3 years in
custody awaiting trial. The appellant experienced some health
problems while awaiting trial, namely severe headaches and chest
pains related to a heart condition and post-traumatic stress after
his mother died. He received treatment and medication for these
problems.

[5]
The appellant completed his secondary education in Zimbabwe. He
obtained a diploma in accounting under difficult personal
circumstances before enrolling for a degree in accounting, which he
had almost completed by the time of his arrest on 23 July 2007. The
appellant worked for the complainant at a salary of N$15 000 for
about 1½ years before he resigned and moved back to Zimbabwe,
where he worked for a foundation which provides funding for
organisations like the complainant. His employment there was for a
mere two months. He earned N$30 000 per month.

[6]
The appellant told the court a quo that the committed the
crimes because he needed money to purchase medicine for his mother
who became very ill as a result of HIV-AIDS. She was allergic to the
medication freely provided by the medical services in Zimbabwe, which
led him to steal the money in order to purchase the required drugs at
great cost. I shall revert to this in more detail later.

[7]
The appellant called a witness who testified that he is willing to
employ the appellant at his garage as an accountant at a salary of
N$16 500 per month. He also offered to lend the appellant money for
payment of a fine up to about N$20 000, should it be imposed.

[8]
The State presented no evidence on sentence.

[9]
The notice of appeal mentions eight grounds of appeal, which were
expanded in Mr Uirab’s heads of argument and in his oral
submissions. By way of introduction counsel made the general
submission that the judgment of the court a quo on sentence is
riddled with misdirections and that should this Court find that there
was indeed any such misdirection or irregularity committed, the
appeal must succeed. This is clearly incorrect. It is only when the
irregularity or misdirection is material that a court of appeal would
be at large to interfere (S v Tjiho 1991 NR 361 (HC) at 366B).

[10]
I now turn to the grounds of appeal. It is convenient to consider the
fourth and fifth grounds together. They are that the trial magistrate
misdirected himself by finding that there was no real need that led
the appellant to defraud the complainant and by finding that the
appellant defrauded the complainant because of greed.

[11]
The magistrate in his judgment made certain calculations also
mentioned during the cross-examination of the appellant by the
prosecutor and stated (the insertions and omissions are mine):

“Accused
committed these offences over a period of four months and two days.
Accused testified under oath and informed the court that the cost for
the drug tablets for his mother cost .........N$4 000 ........... to
N$5 000 per week. As Ms Tait pointed out during cross-examination if
the cost was N$ 5000 per week, multiply 4 gives ..... N$20 000 [per
month]. Multiply 4 gives one N$80 000 for the 4 months Accused
committed these offences. Accused also indicated that he spent N$40
000 to repair his motor vehicle. A total then of ..... N$120 000. As
the Court understood Accused with the rest of the money he supported
his wife and children in Zimbabwe. At the time the Accused committed
these offences he was employed earning a bruto income of ... N$15 000
per month. During the four months in which he defrauded the
complainant with the amount of N$299 999 ... he also earned ... N$60
000 as salary. Having regard to the size of amounts the Accused
defrauded the Complainant with and the amount remaining after the
cost for the drug tablets was deducted, it shows that he had used the
proceeds of his crimes to finance a lifestyle that was beyond his
financial means. Which clearly shows that the commission of the
offences was motivated not by need but by greed.”

[12]
Mr Uirab submitted that the magistrate misdirected himself by
making careless, reckless, rough and unreasonable calculations on
which he based his conclusions. He submitted that the magistrate
erred by failing to consider that the amounts for the costs of the
medication were mere estimates, that the appellant also had to pay
the persons he hired to purchase the drugs in South Africa and for
their transport; and that he had to maintain his ill mother and pay
for a qualified nurse to look after her. Counsel emphasized that
these facts were never disputed by the State.

[13]
In regard to the fifth ground of appeal counsel submitted that the
evidence about his mother’s condition, her allergy and the
purchasing of the medicine was not disputed and that it was clear
that the appellant did not have the means to finance his mother’s
medical treatment and care. As such, it was submitted, there was a
real need that motivated the appellant to defraud his employer.

[14]
In regard to these submissions there are several observations to be
made. Firstly, the State disputed by means of cross-examination that
the initial motivation to defraud the complainant was triggered by
his mother’s illness and I think rightly so. The appellant
admitted that the first offence was committed on 16 December 2006
when he altered a cheque for N$1 515 to one for N$51 515. That was
before he took leave and left for Zimbabwe on 20 December 2006 for
the Christmas holiday. It was only during that holiday that he learnt
about his mother’s illness and that she was allergic to the
medication routinely offered. Initially he stated a number of times
during cross-examination that he found out about her condition during
January 2007. After the prosecutor requested to inspect the charge
sheet, which clearly shows that he already committed the first
offence on 16 December, he changed his testimony by saying that he
learnt about his mother’s condition during December 2006/
January 2007. The appellant further testified that he started
arranging for the medication from about 15 January 2007 onwards when
he returned to Namibia.

[15]
The appellant testified that at first he used part of his salary to
purchase the drugs, but that was not sufficient for a whole months’
supply. He recounted at length how he then began to borrow money from
almost all his friends and how he could not keep up with the
repayments until they stopped helping him. Later he continually had
to borrow from a new person every time, because he had exhausted all
his options without paying back. He also tried borrowing from the
complainant, but as there was no policy in place for providing loans
to employees, this was problematic. He even tried to take the issue
to the complainant’s board, but to no avail. Eventually as a
last resort he began defrauding and stealing from his employer in a
desperate effort to save the life of his mother with whom he
allegedly had a very strong bond. Although the appellant did not
mention a specific period of time during which all this was going on,
the clear and logical implication of his testimony is that at least
some weeks must have passed before he turned to fraud and theft.

[16]
Yet he already committed the second offence on 17 January 2007, a
mere two days after his return from holiday, when he stole N$40 000.
Thereafter he stole N$90 000 in rapid succession on four occasions
during February 2007. To my mind it is abundantly clear that, at the
very least, the first two offences, if not more, were not motivated
by any need to purchase drugs or help his mother and that the
appellant clearly lied about such an alleged need.

[17]
A second observation concerns the submission that the magistrate made
“rough” and “unreasonable” calculations by,
inter alia calculating the cost involved in providing the
medication at N$4 000 to N$5 000 per week. Counsel submitted that the
magistrate failed to take into regard that, apart from the cost of
the medication, there were also service, transport and delivery
costs. However, a reading of the record clearly shows that the
magistrate’s calculations are squarely based on the appellant’s
testimony. During evidence in chief these were the exchanges recorded
between him and his counsel (Record p 49, lines 7 - 13):

“What
was the cost of these tablets to provide them to your mother? --The
cost overall, four, five thousand a week is what I would spend to get
someone [to] get them from South Africa and pay for them and leave
them in Zimbabwe for her.

Around four to five thousand
per week (intervention) --- Yes, four to five thousand per week.”

[18]
The third observation I wish to make is that the prosecutor clearly
questioned the probability that the appellant did in fact spend the
money he stole in the way that he said he did. Apart from what I have
already dealt with before in this judgment, the prosecutor took issue
with the fact that the appellant did not provide any proof for any of
the disbursements made. In some instances the appellant stated that
there were no receipts, for instance in relation to several
transactions in which he handed over large sums of money, e.g. up to
N$20 000, to certain bus drivers. This evidence is inherently highly
improbable. Furthermore, the appellant testified that the receipts
for the drug purchases were handed to his wife upon delivery. Yet
none of these were handed in as exhibits.

[19]
The appellant allegedly hired a full time nurse to care for his
mother. He signed no written contract nor obtained any receipt
reflecting payment for her services.

[20]
The appellant was at pains to hand in documentary evidence, such as
birth certificates of his children, a marriage certificate, death
certificates of his parents and documents relating to his medical
condition. Yet about matters which allegedly were the very motivation
why he was driven to commit the offences he did not provide a scrap
of paper. As Mr Small submitted, one would have expected that
the appellant, being an accountant, would have been more aware than
most of the need to obtain and keep documentary records. It further
seems to me that the appellant must have realized that sooner or
later his crimes would be discovered and that an explanation would be
required. If it indeed were so that the only reason why he committed
these offences was because of noble concern for his mother, the
probabilities are overwhelming that he would have kept documentary
records of his expenses.

[21]
Apart from this, a reading of the evidence shows that the appellant
himself was vague about the amounts he paid the nurse and provided to
his wife and child and spent on his own travelling. Mr Uirab
stressed that the State did not dispute his evidence. Without any
proper details and documentation if would be difficult for the State
to have done so. It seems to me that the appellant forgets that the
onus is on him to prove the mitigatory factors on a balance of
probabilities. This being so, one expects that the appellant should
have provided more detailed figures. In my view the appellant can
count himself fortunate that his explanation for committing the
crimes was to some extent accepted by the trial magistrate. Even if
the magistrate in doing so overlooked that some of the money was
spent on the nurse and some other expenses, it is clear that the
appellant’s testimony does not account for all the money stolen
and that he had large amounts at his disposal for which no
satisfactory explanation has been given. Coupled with this, the
frequency with which the money was stolen and the huge amounts
involved do convey an impression of greed. Mr Uirab submitted
that the magistrate erred by concluding that the appellant stole “to
finance a luxurious lifestyle”. However, this is not what the
magistrate stated. He only referred to a lifestyle beyond the
appellant’s means.

[22]
In conclusion, I can find no misdirection by the magistrate which
could form the basis of upholding these grounds of appeal. They are
dismissed.

[23]
A further ground of appeal is that the magistrate misdirected himself
by finding that the appellant showed no remorse without properly
considering all the circumstances of the case and ignoring the
appellant’s plea of guilty. The portion on the judgment
complained about reads:

“Accused
informed the Court that he has remorse for what he did. It might be
so that Accused now after he was caught out and convicted has
remorse. But his conduct of committing these offences for 10 times
over a period of time hardly shows remorse on his side.”

[24]
It is so that the appellant pleaded guilty. In his written plea
explanation as well as throughout his testimony on various occasions
and in different ways he stated that he knew he acted unlawfully and
that he is remorseful. These are indicators which would tend to
support a finding of genuine remorse.

[25]
On the other hand there is the fact that the appellant was not
truthful about the reason for starting to commit the offences and
about how he spent the stolen money, at least in respect of the first
two offences. For the reasons already discussed elsewhere in this
judgment there are also other questions that hang over the
credibility and probability of his explanation. In my view genuine
remorse cannot be expressed if lies are told about the motivation and
explanation for committing the offences to place the perpetrator in a
more favourable light (see S v Seegers 1970 (2) SA 506 (A)).

[26]
Furthermore, the appellant must have realized that he would be found
out in the end, partly because all the cheques were made out in his
name. Once apprehended there seems to have been no sensible
alternative but to plead guilty. Perhaps this is a neutral indicator
which neither favours nor detracts from a finding about whether he
had genuine remorse.

[27]
The magistrate, somewhat unfairly, in my view, stated in his judgment
that the appellant might have remorse after he was convicted. In
truth the appellant pleaded guilty and already expressed remorse
before conviction. The magistrate also states that “his conduct
of committing these offences for 10 times over a period of time
hardly shows remorse on his side”. Here the magistrate may have
misdirected himself to some extent. Perhaps he intended to convey
that the appellant had ample opportunity to reflect and stop his
criminal course of conduct. However, it is quite possible for an
offender to repeat the same criminal conduct over a long period of
time and still express genuine remorse once caught.

[28]
Any misdirection by the magistrate in the assessment of the
appellant’s remorse is in my view not material and overshadowed
by the fact that the appellant clearly lied as discussed in paragraph
[16] above. As such the expressions of remorse sound hollow and
suspect.

[29]
A further ground of appeal is that the court a quo erred in
not imposing a fine or a wholly suspended sentence. In this regard Mr
Uirab submitted that the appellant had before conviction
already been punished in several respects. Firstly, the appellant had
already spent slightly over 3 years in custody awaiting trial. This,
he submitted, was already more than reasonable punishment for having
committed this offence. If this is so, the logical effect of
counsel’s submission is that the appellant should not receive
any further punishment, not even a fine or a wholly suspended
sentence! Ultimately counsel was not prepared to submit this in so
many words.

[30]
Secondly, counsel pointed out that the appellant had lost the
lucrative employment he had in Zimbabwe. Thirdly, he suffered as he
could not be with his family for so long. I note that the second
child was born while he was in custody and that he had not seen her
since her birth. Fourthly, all these factors contributed to a
deterioration in the appellant’s health. Finally, the appellant
lost his mother as he was detained and could no longer provide her
with the required medication.

[31]
All these events are indeed traumatic not only for the appellant but
also for his family. However, when it comes to the question of
whether a custodial sentence is appropriate in the circumstances of
this case I can do no better than quote from the judgment of S
v Sadler 2000 (1) SACR 331 (SCA) in which
MARAIS AJ so eloquently stated the following (at
335G-336B):

“So
called 'white-collar' crime has, I regret to have to say, often been
visited in South African courts with penalties which are calculated
to make the game seem worth the candle. Justifications often advanced
for such inadequate penalties are the classification of
'white-collar' crime as non-violent crime and its perpetrators (where
they are first offenders) as not truly being 'criminals' or 'prison
material' by reason of their often ostensibly respectable histories
and backgrounds. Empty generalisations of that kind are of no help in
assessing appropriate sentences for 'white-collar' crime. Their
premise is that prison is only a place for those who commit crimes of
violence and that it is not a place for people from 'respectable'
backgrounds even if their dishonesty has caused substantial loss, was
resorted to for no other reason than self-enrichment, and entailed
gross breaches of trust.

[12] These are heresies.
Nothing will be gained by lending credence to them. Quite the
contrary. The impression that crime of that kind is not regarded by
the courts as seriously beyond the pale and will probably not be
visited with rigorous punishment will be fostered and more will be
tempted to indulge in it.

[13] It is unnecessary to
repeat yet again what this Court has had to say in the past about
crimes like corruption, forgery and uttering, and fraud. It is
sufficient to say that they are serious crimes the corrosive impact
of which upon society is too obvious to require elaboration.”

[32]
The words in paras [11] and [13] were adapted by the Namibian Supreme
Court in S v Munyama (Case No. SA 47/2011 – unreported
judgment dated 9 December 2011) when it stated (at p10):

“[19]
It is unnecessary to repeat yet again what the Court below had said
about crimes like fraud and corruption. It is sufficient to say that
that Court was on point. They are serious crimes, the deleterious
impact of which upon societies is too obvious to require elaboration.
Dishonesty of the kind perpetuated by appellant for no other reason
than self-enrichment, and entailed (sic)
gross
breaches of trust should be visited with vigorous punishment where
necessary”.

[33]
In the Sadler case the State appealed against wholly suspended
sentences and a fine of N$500 000 for several counts including
corruption, forgery and uttering and fraud. The Supreme Court of
Appeals set aside the non-custodial sentences and stated that the
circumstances of that case called for the imposition of direct
imprisonment and that the interests of justice will not be adequately
served by leaving the sentences of the court below undisturbed. The
Court took 13 counts together and sentenced the respondent to four
years’ imprisonment. In doing so the Court said (at 337C-D):

“.....
I bear in mind that respondent has already suffered in many ways. He
has had to bear the strain and anxiety of the criminal proceedings
for an unusually long time. His trial had to recommence after it had
run for well-nigh a month because of a successful recusal
application. The appeal by the Attorney - General has prolonged the
process and respondent has had to endure the suspense of not knowing
what his fate would ultimately be. He has no doubt had to live with a
constant sense of guilt for subjecting those near and dear to him to
the trauma and disruption of their family life which his fall from
grace must have caused. One cannot but feel deeply for them.
Regrettably, one cannot allow one's sympathy for them to deter one
from imposing the kind of sentence dictated by the interests of
justice and society.”

[34]
In the appeal before us the amount involved is large, the appellant
was in a position of trust, ironically defrauding and stealing from a
welfare organisation assisting sufferers of HIV-AIDS. A large part of
the money stolen was used for no other reason than self-enrichment.
The manner the appellant committed the crimes entailed gross breaches
of trust. The appellant was not genuinely remorseful. In my view his
moral blameworthiness and all the circumstances of the case call for
the imposition of a period of effective imprisonment.

[35]
Appellant’s counsel raised an argument before us, namely that
the trial court misdirected itself in concluding that the fact that
the appellant committed offences over a period of time must be viewed
as an aggravating factor. This submission is not covered by the
notice of appeal and I shall not spend more time on it.

[36]
Another ground of appeal is that the trial court imposed a sentence
that is so excessive that no reasonable court would have imposed it
in the circumstances of this case. It was further submitted that the
court erred by not imposing a shorter period of imprisonment which is
partly suspended. In this regard appellant’s counsel relied on
the Munyama case (supra) and submitted that the case is
comparable to the present one. In the Munyama case the
appellant was given a sentence of 10 years imprisonment of which 3
years were suspended. The Supreme Court found on appeal that the
trial Court did not commit any misdirection, but that the sentence
conveyed a sense of shock and that there was a striking disparity
between the trial Court’s sentence and the sentence which the
Supreme Court would have imposed (p. 10, para [18]. This would be an
indication that the trial Court’s discretion in imposing
sentence was unreasonably exercised (p. 9, para [15]). The Supreme
Court set the sentence aside and replaced it with a sentence of 6
years imprisonment of which 3 years were suspended.

[37]
There are indeed many aspects of these two cases that are comparable.
The offences were committed at about the same time. The convictions
and sentences occurred at about the same time. The appellants were
both convicted of fraud involving several acts of deliberate and
planned dishonesty over roughly the same period of time. Both
appellants offered during the sentencing proceedings to compensate
the complainant in future. Both appellant are married and have
families with young children who are suffering. Both are first
offenders. In Munyama’s case the appellant pleaded not
guilty, but some time into the trial made material admissions without
admitting all the elements, which eased the State’s burden in
proving the case against him. That appellant never testified during
the main trial or during the sentence proceedings. In this appeal the
appellant pleaded guilty and exposed himself in the witness box.
While the appellant in Munyama never offered an explanation
under oath, the appellant offered an explanation which is at least
partly untruthful and the rest appears suspect. Expressions of
remorse, such as they are, in both cases do not carry that much
weight. Both appellants suffered health problems for which they were
being treated. Both held positions of high trust with their employers
which they grossly abused.

[38]
The major differences which seem to me to be relevant here are the
following. In the case of Munyama the potential prejudice was
about N$346 000 and the actual amount stolen was just over N$100 000,
while in this case the actual loss is N$299 000. In Munyama the
appellant was 54, whereas the appellant is much younger at 33 years.
In the first case the appellant was released on bail early, whereas
the appellant in this case awaited trial in custody for over 3 years.
In the Munyama case the appellant’s sentence was reduced
from 10 years (of which 3 years are suspended) to one of 6 years
imprisonment (of which 3 years are suspended). In this case the
appellant received a sentence of 8 years of which 3 years are
suspended.

[39]
Although the appeal in Munyama eventually did not turn on the
issue of consistency in sentencing, the Supreme Court has made it
clear that in the interests of legal certainty and respect for the
judicial system courts should generally strive for uniformity of
sentences in comparable cases, while balancing this principle against
individualisation of sentences (p 7-8, para [12]). At the same time
it has acknowledged that there cannot be perfect equality between
accused persons in the conduct and outcome of criminal trials (p.8,
para [13]).

[40] Mr Small
submitted upon a question of the Court that the Supreme Court has not
set a “standard” by imposing the sentence that it did.
However, I think that all courts below the Supreme Court, including
this one, should obviously take note of what and in which
circumstances, in the view of the Supreme Court, being the highest
Court of the land, is a sentence which creates a sense of shock and
use that as a measure in passing their own sentences or in assessing
on appeal whether a sentence should be interfered with or not. As was
stated in Munyama (at p 9, para [17]): “The hierarchical
structure of our Courts is such that where ..... difference[s] .....
[exist] it is the view of the appellate Courts which must prevail. (S
v Sadler, supra, at 335F).”

[41] Applying this
reasoning it seems to me that the two cases being compared are such
that the Supreme Court’s sentence is indeed, with respect, a
useful guideline which should be followed. Should the need arise in
future to deviate from that guideline, a proper case must be made
out, based on the then applicable circumstances of the case, which
may include the need to increase sentences because of a failure of
earlier sentences to deter perpetrators or because of a significant
rise in prevalence of the particular offence.

[42] The fact that
the appellant in this case stole about N$200 000 more than was the
case in Munyama
is significant and
should be reflected in any sentence imposed. However, I also think
that the time the appellant spent in custody should be adequately
reflected. If it were not for this latter aspect
in the current case, I would not have had, bearing in mind the
measure provided by the Supreme Court, any problem with the sentence
imposed by the learned magistrate who generally wrote a balanced
judgment on sentence. However, if I take into consideration the time
the appellant spent in custody, it seems to me that this aspect was
not properly accounted for in the sentence imposed. I
have debated with myself whether the period of imprisonment imposed
should be reduced, or whether merely the period of suspension be
increased. Having done so, I think that it would be best to reflect
this aspect as a factor reducing the sentence in totality.

[43] Having
reached this conclusion, I do not deem it necessary to deal with the
remaining grounds of appeal, which are in some sense related to the
present.

[44] The result
then is as follows:

1. 
   The appeal
   against sentence succeeds.

   
   

2. 
   The sentence of
   the regional court magistrate is set aside and substituted with a
   sentence of 7 years imprisonment of which 3 years are suspended for
   five years on condition that the appellant is not convicted of an
   offence of fraud committed during the period of suspension.

   
   

3. 
   The sentence is
   backdated to 7 December 2010.

   
   

__________________

VAN NIEKERK, J

I agree.

__________________

PARKER, J

­

Appearance for
the parties

For the appellant:
Mr B Uirab

Directorate of
Legal Aid

For the
respondent: Mr D F Small

Office of the
Prosecutor-General

­­
agree.RK, J___ 0000tted as follows: tn relation to his employer,