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REPUBLIC OF NAMIBIA

CASE NO.: CA 179/04

IN THE HIGH COURT OF NAMIBIA

In the matter between:

GERHARD SHIPENA APPELLANT

and

THE STATE RESPONDENT

CORAM: VAN NIEKERK, J

Heard: 17 May 2006

Delivered: 12 October 2009

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APPEAL JUDGMENT

VAN NIEKERK, J: [1] In this matter there is an application for leave to appeal against sentence by the State and an appeal against sentence by Mr Shipena. In order to avoid confusion I shall refer to the parties as “the State” and “the appellant” respectively.

[2] The accused stood trial in the Regional Court at Oshakati on two counts of theft, eight counts of fraud and eight counts of forgery. He was legally represented, pleaded guilty to the charges and was sentenced as follows:

“you are fined TEN THOUSAND NAMIBIAN DOLLARS (N$ 10,000-00) or THREE YEARS (3) imprisonment plus a further THREE YEARS (3) imprisonment suspended in total for a period of FIVE YEARS (5) on condition 1.0: accused is not convicted of theft, fraud and forgery during the period of suspension, 1.2: accused the following condition is that you as accused compensates Shoprite in the amount of N$ 14,462.55 on or before the 1^st of April 2005, payments to be made at the Clerk of the Court of Oshakati.”

[3] On 26 April 2004 the Prosecutor-General filed a notice of application for leave to appeal against the sentence in terms of section 310 of the Criminal Procedure Act, 1977 (Act 51 of 1977). The accused also prepared a notice of appeal and application condonation for the late noting thereof on 11 December 2004. It was filed with the Clerk of the Criminal Court on 28 December 2004. There were some delays in the preparation of the record of the appeal on the part of the Clerk of the Court. Eventually the matter was set down in the High Court on 20 January 2006. As the State had failed to serve notice of its application on the accused, the matter was postponed for service to be effected.

[4] Before me Mr Sibeya appeared for the State and Mr Viljoen, amicus curiae, for the accused. The Court is indebted to both counsel for helpful heads of argument filed and to Mr Viljoen for his assistance. The accused was present during the hearing of the appeal and agreed with the submissions made on his behalf. The State did not oppose the accused’s application for condonation. Although a section 310 application for leave to appeal is normally heard in chambers, it was decided in the circumstances of this case to hear the application and the appeal at the same time. Mr Viljoen indicated that the State’s application would not be opposed. Both counsel requested, in the special circumstances if this case, that the Court deals with the matter as if it were an appeal and a cross-appeal, so that the matter may be finally disposed of in this Court.

[5] The appellant’s grounds of appeal were clearly drawn by a lay person and are a mixture of arguments and new information about events which have occurred after sentence was passed. For obvious reasons the new information must be ignored, as it does not form part of the information before the trial court. In essence the appellant’s grounds of appeal amount to the following:

(i) The fine of N$10 000 is disturbingly high and should be halved.

(ii) The period of one year within which to compensate the complainant is too short and should be extended to 3 years.

(iii) Any period of imprisonment which appellant is required to serve should run concurrently with the sentence of 6 years previously imposed.

(iv) The magistrate over emphasized the seriousness of the crimes at the expense of the accused’s personal circumstances, which were under emphasized.

(v) The court a quo erred by giving insufficient weight to the fact that accused showed his remorse by pleading guilty and by offering to compensate the complainant.

[6] The State’s grounds of appeal are set out as follows:

“That the learned Magistrate misdirected himself or erred in law or fact by:

2.1 failing to adequately consider the interests of society;

2.2 failing to adequately consider or attach sufficient weight to the previous conviction of the Respondent;

2.3 incorrectly according too much weight to the personal circumstances of the Respondent;

2.4 imposing a sentence that is disturbingly lenient;

2.5 formulating the first condition of suspension of part of the sentence in such a manner that the accused would have to be convicted of theft, fraud and forgery before the State would be able to apply for the putting into operation of the suspended sentence.”

[7] In order to consider the various grounds relied upon by the parties, it is necessary to set out the facts of the case as far as these can be ascertained from the record.

[8] The first count of theft relates to the theft of three blank cheques, the property of Mr Erastus Shivolo. The second count of theft relates to four blank cheques, the property of Mrs B N N Tshivolo. The first three cheques came into the accused’s possession during March 2000 and the other four during April 2000. The accused did not explain how they came into his possession, but the accepted facts are that he only decided to unlawfully appropriate them after they came into his possession. In respect of each of the blank cheques the accused bought goods at either the Oshakati or the Ondangwa branch of Shoprite, there and then completed and signed the cheques in the name of either Mr Shivolo or Mrs Tshivolo and handed them to the cashier, pretending that he was the owner of the cheques and entitled to use them. In this manner he committed the forgeries and frauds on the following dates for the following amounts:

Counts 3 and 4: 23 March 2000 N$1 685–20

Counts 5 and 6: 29 March 2000 N$4 767–74

Counts 7 and 8: 30 March 2000 N$3 286–90

Counts 9 and 10: 08 April 2000 N$2 166–37

Counts 11 and 12: 08 April 2000 N$ 337–79

Counts 13 and 14: 10 April 2000 N$2 338–25

Counts 15 and 16: 13 April 2000 N$3 419–00

Counts 17 and 18: 14 April 2000 N$1 287–50

[9] As a result of the misrepresentations made the accused succeeded in purchasing goods to the total amount of N$19 288–75. When the cheques were presented for payment, the bank declined to honour the cheques as they were stolen. Goods to the value of N$4 826–20 were recovered and returned to Shoprite. The actual loss is N$14 462–55.

[10] On the facts of this case, the convictions on the eight counts of forgery appear to me to be a duplication of the convictions on the eight counts of fraud as the particulars contained in the charge sheet and the written plea of guilty by the accused indicate that the forgeries and the fraudulent actions were committed at the same time and place by completing the cheques as if the accused were entitled to do so. However, as there is no appeal against the convictions, I shall not pursue this issue further, except where it has a bearing on sentence.

[11] At the time of his conviction and sentence in the court a quo the appellant was 46 years old. When he committed the offences he was a member of the Namibian Police with the rank of Deputy Commissioner and held the position of Station Commander at Oshakati Police Station, but had been suspended from duty as a result of an investigation into allegations that he had previously committed a series of thefts during 1992 – 1994. He was convicted during May 2001 on 171 counts of theft and sentenced to 6 years imprisonment, all the counts being taken together for sentence. During the period December 1999 to March 2000 the payment of his salary had been suspended, allegedly unlawfully, and he received irregular or late payments for several months. This placed him in a difficult financial position, which contributed to the temptation to use the blank cheques in a fraudulent manner to make certain household purchases. After being arrested in this matter, the appellant resigned from the Police Force. At the time that sentence was passed in the court a quo, appellant was serving the 6 year sentence.

[12] He is the father of seven children, of which two were residing with his wife, from whom he had been separated for seven years. At the time of his trial he was able to maintain the younger children from income generated by leasing his cuca shop to a third party and from income derived from his eldest son who was operating appellant’s taxi. Appellant’s lawyer in the court a quo asked for a fine as a sentence. Appellant had assets which could be sold to pay a fine of about N$5 000–00. The shop and taxi were mentioned as other assets to be sold. His family was willing to assist him to pay a fine by providing him with loans. The appellant also offered to compensate the complainant within a period of 5 years. Furthermore, his lawyer requested the court a quo to order that any sentence of imprisonment should run concurrently with the 6 years sentence previously imposed.

[13] In a nutshell the State’s main complaint on appeal is that the appellant, having been a senior police official when he committed the offences in the case and having previously committed 171 counts of theft, should have received a period of direct imprisonment. In the court a quo the State also asked for a custodial sentence. Both in the court a quo and on appeal the State relied on several judgments, which make it clear that, in general, an effective period of imprisonment is considered appropriate even for first offenders, who are police or traffic offers or prosecutors or who are in similar positions of authority and entrusted with the protection and upholding of law and order and who commit crimes, especially crimes involving dishonesty.

[14] The learned trial magistrate emphasized and followed the approach taken in S v Scheepers 1977 (2) SA 154 (A) where the majority stated as follows (at 155):

“Imprisonment is not the only punishment which is appropriate for retributive and deterrent purposes. If the same purposes in regard to the nature of the offence and the interests of the public can be attained by means of an alternative punishment to imprisonment, preference should, in the interests of the convicted offender, be given to alternative punishments in the imposition of sentence. Imprisonment is only justified if it is necessary that the offender be removed from society for the protection of the public and if the objects striven for by the sentencing authority cannot be attained with any alternative punishment.”

Afrikaans]

[15] The trial magistrate was of the view that the appellant is not an offender who should be removed from society for the protection of the public because appellant had shown good behaviour while serving his 6 year sentence. (At the time appellant had served about three years of that sentence). For this conclusion the magistrate relied on information presented from the bar by defence counsel during his address in mitigation of sentence. The information is contained in a letter by SSP Shapakwa, Officer in Charge of the Oluno Rehabilitation Centre, where appellant was serving his previous sentence and is to the effect that the appellant’s behaviour has been satisfactory and that there were no disciplinary offences on his record while in prison. The Officer in Charge further noted that the appellant was the secretary of a gospel outreach programme which is responsible for giving (presumably) religious advice and for creating a good relationship between inmates and prison officials. SSP Shapakwa also stated that the appellant was showing remorse and was “ready for rehabilitation in any way.” It is common cause that the appellant had been furthering his studies while in prison by improving his secondary school qualifications and by completing a basic Bible study course.

[16] The State did not dispute this information, although it was submitted that the magistrate accorded it too much weight. While it is trite that a sentencing officer has a very wide discretion when deciding what factors to bear in mind and how much weight to accord to each such factor, I must agree with the State’s submission. The learned magistrate appeared to accept the favourable report by the prison official, without sufficiently bearing in mind that appellant’s conduct is shaped and restricted by the controls of a prison environment. The magistrate referred only in passing and obliquely to the ‘crimes he has been convicted’ without evidencing in his judgment that he properly considered the issue of the earlier offences which appellant committed. Appellant had been on suspension pending the outcome of the investigation into the earlier thefts committed during 1994. In spite of this fact, which one would expect to have had a sobering effect, he went ahead and committed the offences in this case. This circumstance greatly aggravates crimes he subsequently committed. This aspect is not discussed at all by the court a quo, which fact lends support to the State’s criticism.

[17] While the court a quo acknowledged the seriousness of the offences and the fact that appellant committed them while he was a senior police official, the court a quo was of the view that the deterrent purpose of punishment, both in respect of the appellant and of other would-be officers, would be served in this case by imposing a fine with an alternative of imprisonment.

[18] The court a quo did not deal with any of the several judgments relied on by the State, some of which were also relied on before me. These judgments generally emphasize the need to deter particular offenders and other would-be offenders in similar positions of trust by imposing effective periods of imprisonment and by making an example of the particular offender in each case. I need not deal in detail with each and every case relied upon by the State – a few examples would suffice, as the general theme is clear.

[19] In Maleagi Toy Gaseb v The State (High Court Case No. CA33/95 - unrep. judgment del. 6/5/1996) GIBSON, J said at p6:

“A policeman who commits a crime not only breaches the trust that the community has placed on him, he attacks and undermines the foundations of organised society and thus deserves a sentence that serves as an example.”

[20] In Cornelius Rooy v The State (High Court Case No. CA96/95 - unrep. judgment del. 14/6/1996) the Court was concerned with a policeman who had been convicted of fraud involving public money. After quoting (at p.4) the above-mentioned extract from the Gaseb case with approval, the Court stated (at p.5):

“Due to the wave of crimes sweeping through our country and the need to effectively combat such crimes the emphasis has changed from individualisation to deterrence, in particular where those who are charged with the duty to combat crimes are themselves committing crimes.”

[21] In this case the Court on appeal confirmed an effective period of imprisonment of one year for a fraud involving a sum of just short of N$2 900-00 committed by a police sergeant.

[22] In The State v Elly Hamunyela (High Court, unrep. judgment del. 4/4/2003) a public prosecutor received effective imprisonment after the Court stated (at p6):

“I believe that it is the duty of the Court to protect the public interest and to recognise the public expectation that any person in a position of trust should be held fully accountable for his or her conduct in the performance of public duties.

It is the view of this Court’s that the prospect of achievement of this goal can be passing of exemplary sentences….”

[23] In S v Elifas Gurirab (High Court Case No. CC107/07, unrep.) this Court stated (at p5):

“…..[I]n order that society may be assured that corrupt police officers and greedy public servants are deterred and discouraged from embarking or carrying out criminal enterprises as a way of supplementing their living, I consider that heavy prison sentences on all three of you is most apposite.”

[24] In Simon Nakale Mukete v The State (High Court Case No. CA146/2003 – unrep. judgment del. 19/12/2005) this Court was of the view that the objectives of punishment cannot be attained in the circumstances of that case without the imposition of an effective term of imprisonment. It accordingly increased a sentence imposed by the magistrate on a traffic officer convicted of extortion from a fine of N$3 000-00 or 24 months imprisonment of which half was suspended for 3 years to 2 years imprisonment.

(See also Isaskar Kuvere v The State (HC) (unrep. judgment del. 2/12/1996); Frederick Lodewyk Adams v The State (High Court, unrep. judgment del. 23/6/99); Petrus Haodom v The State (High Court, unrep. judgment del. 28/8/2001); S v Katuemutima 2005 (3) NCLP 56 (HC); S v Le Roux 2005 (6) NCLP 75 (HC); S v Nakale (No 2) 2007 (2) NR 427 (HC); S v Nakale (High Court Case No. CC16/2005 - unrep. judgment del. 19/10/2007).)

[25] In my respectful view the learned magistrate erred in not giving the authorities relied upon by the State, which emphasize the seriousness of the crime and the interests of society, adequate weight. It must be remembered that the Scheepers case was not concerned with a policeman who committed a crime of dishonesty. It was concerned with a farmer who stole stock. The dictum relied upon by the learned magistrate must also be carefully read – its effect is that if the purposes of retribution and deterrence, bearing in mind the nature of the offence and the interests of the public, can be attained by means of a different kind of sentence than imprisonment, preference should be given to the interests of the offender. A reading of the cases referred to above indicate that, generally speaking, in the case of a police officer who commits a crime of dishonesty, the legitimate objects of punishment, e.g. retribution and deterrence, are not attained unless effective imprisonment is imposed. While they do not lay down an immutable rule, they do serve as a guideline which is generally followed.

[26] The learned magistrate also applied and followed the following dictum in the Scheepers case (again the quotation is from the headnote at p155):

“The imposition of a fine is a particularly appropriate punishment in a case where the accused's unlawful conduct was directed towards monetary gain. Where materialism as motive plays a big part in the unlawful conduct it is usually a hard blow to the offender if he has to part with his illegally gained profits or if that which he held out as a prospect to himself is converted to a loss. This complies with the requirements of retribution as well as deterrence.”

[27] While I am in respectful agreement with the magistrate that in certain circumstances a fine may also deter and have retributive effect, the question arises whether on the facts of this case a fine adequately serves the objects of punishment where the offender is a policeman convicted of several serious crimes of dishonesty. I would not go so far as to say that a fine would never be appropriate in such circumstances, but in my view the fine would have to be substantial. In this case the accused did not have substantial means at his disposal. In spite of his offers to pay a fine and to compensate the complainant, the information before the court showed that he had no money for a fine and would have had to sell the assets on which he was relying to provide an income for his family while he was serving the six year term of imprisonment. Even then he would only have been able to realize about N$5000-00, which would have been inadequate bearing in mind the seriousness of this case. Not surprisingly, appellant did not pay the fine and also did not compensate Shoprite within the year provided for by the suspended sentence. It was, in any event, not appropriate to order compensation of the complainant in such a large amount where the offender he had limited means and was already serving a medium term sentence and could therefore not generate an income from employment.

[28] The trial court also deviated from the norm of imposing effective imprisonment because it was of the view that a very long period of imprisonment would break the appellant. In my view this could have been avoided by suspending part of the sentence or by ordering that part of the sentence runs concurrently with the six year sentence.

[29] To sum up, in my view the court a quo misdirected itself on the grounds relied upon in paragraphs 2.1 – 2.4 of the State’s grounds of appeal.

[30] In the light of my reasoning above and the conclusions I have reached, it is not necessary to deal in specific detail with the appellant’s grounds of appeal. It is clear that the grounds of appeal set out in sub-paragraphs (i), (ii), (iv) and (v) of paragraph [5] supra must fail. As far as sub-paragraph (iii) is concerned, I do not agree that any period of imprisonment which appellant is required to serve should run concurrently with the sentence of 6 years previously imposed. In my view this would be too lenient bearing in mind the aggravating circumstances of this case.

[31] In this regard I wish to deal with what the State referred to as the appellant’s “previous conviction”. Clearly the appellant’s convictions on the 171 counts of theft are not “previous convictions” in the true sense of the word, as the appellant was not convicted of these offences before he committed the offences which form the subject matter of this appeal (See R v Zonele and Others 1959 (3) SA 319 (AD) 330D; S v Amalovu and another 2005 NR 438 HC 444D). It can therefore not be said that the “previous convictions” aggravate the offences in casu on the grounds that they tend to show that the appellant had not been deterred by his previous punishment from committing the later offences (Zonele (supra) 330D-E). However, the convictions may be taken into consideration to determine matters like the appellant’s good or bad character, his reformability and the like, in order to decide what particular form of punishment will fit the criminal, as well as the crime (Zonele (supra) 330E-331B; Amalovu (supra) 448H-I). As I have said before, it is relevant in this case that, although the appellant was on suspension while the investigation and prosecution of the 171 counts of theft were pending, he was not deterred thereby when he decided to commit the later offences.

[32] To conclude, the following order is made:

1. The appellant’s appeal against sentence fails.

2. The State’s appeal against sentence succeeds.

3. The sentence imposed by the Court a quo is set aside and substituted with a sentence of 3 (Three) years imprisonment, which is backdated to 1 April 2004.

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VAN NIEKERK, J

APPEARANCE FOR THE PARTIES:

On behalf of the Appellant (Amicus Curiae): Mr B Viljoen

(Erasmus & Associates)

On behalf of the Respondent: Mr O S Sibeya

Office of the Prosecutor-General

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