“Unreportable”

CASE NO.: CA 38/2010

IN THE HIGH COURT OF NAMIBIA

In the matter between:

RODNEY HAWAEB
…...........................................................................Appellant
No. 1

SYDNEY SKRYWER
…..........................................................................Appellant
No. 2

vs

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

CORAM: DAMASEB JP et
PARKER J

Heard on: 2012 February 17

Delivered on: 2012 February 29

_________________________________________________________________

APPEAL
JUDGMENT

_________________________________________________________________

PARKER, J [1] Appellant
1 (accused 1 in the court below) and appellant 2 (accused 3 in the
court below) and accused 2 (not a party in this appeal) were charged
before the Khorixas Magistrates Court with one count of housebreaking
with intent to steal and theft of a safe, containing N$23,301.30.
They pleaded not guilty, and after their trial they were convicted of
the offence. The case was transferred to the Regional Court in
Otjiwarongo for sentencing in terms of s. 116 (1) of the Criminal
Procedure Act, 1977 (Act 51 of 1977). The appellants were sentenced
as follows:

Appellant 1: 10 years’
imprisonment of which a period of four years was suspended for five
years on certain conditions

Appellant 2: Eight years’
imprisonment

[(Accused 2): A fine of N$15,000.00 or
four years’ imprisonment]

[2] The appellants now appeal against
the sentence, and they are represented by Mr Wessels. The State
(respondent) is represented by Mr Kumalo. Both counsel filed heads of
argument, and we are grateful for their industry. We have consulted
the authorities referred to us by counsel in the heads of argument,
as well as the authority referred to us by Mr Wessels during the
course of his oral submission.

[3] From the papers filed of record
and submissions by both counsel we have the distinct feeling that
both counsel are ad idem that in the circumstances of the case
a custodial sentence is appropriate and reasonable. We are also of
that view. That being the case, what is left is for the Court to
determine whether the period of the sentences imposed is appropriate
and reasonable. It is Mr Wessel’s argument that considering the
sentences imposed by this Court in similar cases the sentence imposed
by the learned Regional Court magistrate in the instant case is harsh
and unfair. Mr Kumalo did not argue vigorously contrariwise. When
asked by the Court if there was any good reason why, in the
respondent’s view, the sentences are fair and reasonable,
counsel’s response was to refer the Court to cases where
severer sentences have been imposed by this Court in similar cases.
But he did not have any credible answer when the Court drew his
attention to two recent and important cases; one decided by the Court
and the other by the Supreme Court, where, although by far higher
amounts of money were involved – and, indeed State funds –
the sentences imposed in those two cases are by far less than the
sentences imposed by the learned Regional Court magistrate in the
instant case. The High Court case is S v Ganes 2005 NR 472
(HC): ‘a fraud case involving 13 charges with a potential
prejudice to Telecom Namibia Limited (Telecom) in the amount of
N$705,704.40 ... The crimes were committed between 22 March and 14
December 2000. Accused was a procurement manager at Telecom. When the
crime was detected, accused was arrested and released on bail; he
later absconded to South Africa. He resisted extradition to Namibia
and opposed sequestration instituted against him in South Africa.’
(See Gerry Wilson Munyama v The State Case No. SA 47/2011
(judgment delivered as recent as 9 December 2011) (Unreported) at
para [9].) The effective custodial sentence in Ganes is,
therefore, four years; and it must be noted that if the accused paid
the fine, the custodial sentence will be two years.

[4] The Supreme Court case is Gerry
Wilson Munyama v The State supra. There, the appellant was the
Director-General of the NBC at the time he committed the offences. By
means of a forged resolution of the NBC Board of Directors of 15
March 2005 which authorized him to open an account in the name of NBC
at any banking institution of his choice, he approached Standard Bank
during May 2005 and opened an account at that institution’s
Gustav Voigts Centre with exclusive signing powers bestowed on him
alone. He deposited N$345,995.99 in the account being (1) a
N$25,000.00 donation from FNB Foundation which was to be used to pay
for the training of staff at the NBC. The rest of the money was
raised from the proceeds of NBC shares which appellant was authorized
to claim from Old Mutual Company. The accused withdrew all the moneys
and closed the account in August 2005. The accused Munyama was
convicted on two counts; that is, Count 1: fraud, and Count 2:
forgery. The sentence imposed is as follows: in respect of Count 1
(fraud), 10 years’ imprisonment of which a period of three
years was suspended for five years on conditions, and in respect of
Count 2 (forgery), three years’ imprisonment which was ordered
to run concurrently with the sentence on Court 1. On a successful
appeal, the Supreme Court substituted the 10 years’
imprisonment with six years’ imprisonment, of which a period of
three years was suspended on the same conditions as those imposed by
the trial Court.

[5] I dwell on the Munyama case
for two significant reasons; first and fundamentally, the decision
there is binding on this Court and it reviews many similar cases
where this Court and the Supreme Court o\imposed sentences, and
crucially it is of great assistance to the matter under
consideration. I shall return to the Munyama case in due
course.

[6] It has been held authoritatively
in many cases without number that punishment falls within the ambit
of the discretion of the trial court and that the discretion may be
said not to have been judicially or properly exercised if the
sentence is vitiated by an irregularity or misdirection. 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. And in deciding whether a sentence is manifestly
excessive, the 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. (S v Simon 2007(2) NR 500 where authorities in
Namibia and outside Namibia are cited with approval) It has also been
said that a court ought to show ‘a measure of mercy’
which has been said to be the fourth factor (apart from the crime,
the interests of society and personal circumstances of the accused)
which ought to be taken into account when sentencing (The State v
Sylvia Condentia van Wyk and Seth Jacobus Louw Case No. CC 7/2008
(Unreported) which relies on S v Khumalo 1993 (3) SA 697 (A)).
Additionally, it was held by the high authority of Strydom JP (as he
then was) in Immanuel Reynecke v The Sate Case No. CA 63/1996
(Unreported) at p. 3 that a sentence ‘cannot ignore’ the
circumstances of the crime. On the element of ‘a measure of
mercy’, Mr Kumalo drew our attention to the following passage
in S v Strauss 1990 NR 1971: ‘The requirement of mercy
does not mean that the courts must be too weak or must hesitate to
impose a heavy sentence where it is justified by the circumstances.’
We agree: all that Strauss is saying is that where the
circumstances justify it, a heavy sentence may be imposed without
mercy. That is fair, satisfactory and reasonable in our view.

[7] We have carefully considered the
matter and in doing so we have considered the record of the
proceedings of the lower court, including the judgment of the learned
Regional Court magistrate and submission by counsel and we have
consulted the authorities referred to us by counsel and those our own
research did unearth. Keeping in our minds’ eyes the principles
and approaches in those cases, especially in S v Simon supra,
Gerry Wilson Munyama v The State supra and S v Ganes
supra, we come to the following reasonable and unavoidable
conclusion. Looking at the circumstances of the crime in Ganes
and Munyama (SC), including the crimes in the cases the
Supreme Court refers to in para 8 thereof that preceded the Ganes
case, on the one hand and the crime in the instant case on the other,
we find that the learned Regional Court magistrate failed to be
guided by the principle that in imposing a sentence the sentencing
court ought to be guided mainly by sentences impose by this Court
and, of course, the Supreme Court in similar cases (of course, due
regard being had to factual differences and apart from statutory
prescribed sentences). The misdirection, in our opinion, is a serious
one. We can only assume that the Ganes case and the cases the
Supreme Court refers to in para 8 of the Munyama case which
preceded the Ganes case, as aforesaid, were not brought to the
attention of the learned Regional Court magistrate.

[8] Keeping all this in our mental
spectacles, we hold that the sentence imposed by the learned Regional
Court magistrate is so excessive that it induces a sense of shock in
our minds, entitling us to interfere with the sentence imposed by the
lower court; as we do. However, we have no good reason to fault the
learned magistrate for imposing different sentences on appellant 1
and appellant 2 and accused 2 on the basis that as a police official
of NAMPOL at the time of the commission of the offence, appellant 2
carried greater blameworthiness. Mr Wessels appears to have conceded
the point that the difference in the sentences imposed was reasonable
and justified in the circumstances. However, as we understand
counsel, he submits that the difference between the sentences was too
wide. We respectfully agree. We think the difference is too wide to
the extent that it is unfair and unsatisfactory. Having said that, we
are of the view also that the fact that appellant 2 was a police
official justifying the imposition of a severer sentence than that
imposed on his co-accused should – like the proverbial
double-edged sword – cut both ways. It should, therefore, in
our showing of a measure of mercy, work in his favour. In this
regard, we note that appellant 2 has already lost his job as a police
official with NAMPOL and that is a severe punishment in itself on any
pan of scale. Accordingly, a measure of mercy is justified in his
case.

[9] For the aforegoing reasoning and
conclusions, we conclude, as we have intimated previously, that this
Court is entitled to alter the sentence imposed by the lower court;
and it is our view that the sentences set out below meet the justice
of the case. Whereupon, it is ordered:

1. The appeal (on sentence) succeeds.

2. The sentence imposed by the
Regional Court is set aside and the following is put in its place:

Appellant 1

Three years’ imprisonment

Appellant 2

Four years’ imprisonment

3. The sentences in para 2 are
backdated to 11 August 2010.

________________

PARKER J

I agree.

________________

DAMASEB JP

COUNSEL ON BEHALF OF THE
APPELLANTS:

Mr J Wessels

Instructed by: Stern &
Barnard

COUNSEL ON BEHALF OF THE
RESPONDENT:

Mr P S Kumalo

Instructed by: The Office of
the Prosecutor-General