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REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

SENTENCE

Case no: CC 14/2011

In the matter between:

THE STATE
and
IMMANUEL DAVID FREITAS DIAS ACCUSED NO. 1
EDGAR CARDOSO ALVES ACCUSED NO. 2
MARK PAUL ALVES ACCUSED NO. 3

Neutral citation: S v Dias (CC 14/2011) [2015] NAHCMD 61 (16 March 2015)

Coram: UNENGU AJ

Heard: 19 November 2014; 19 December 2014; 26 – 27 January 2015;

17 February 2015; 18 February 2015

Delivered: 16 March 2015

Flynote: Criminal Procedure – Sentence – Accused first offenders – Theft committed against employer – Accused in trust position – Imprisonment sentence is appropriate in the present matter – Court imposed a sentence without an option of a fine of which part thereof is suspended on certain conditions.

Summary: Criminal Procedure – Sentence – The two accused persons have been convicted of goods, the property of their employer – The accused in a trust position – However, the court was of the view that imprisonment sentence was appropriate due to the facts and circumstances of the matter – Therefore, a sentence of an option of a fine of which part thereof is suspended on certain conditions.

ORDER

(i) Accused one:

Alt. Count 139: Sentenced to six (6) years imprisonment of which three (3) years imprisonment is wholly suspended for a period of five (5) years on the condition that accused is not convicted of theft committed during the period of suspension.

(ii) Accused two:

Alt .Count 139: Sentenced to three (3) years imprisonment of which one (1) year imprisonment is wholly suspended for a period of five (5) years on the condition accused is not convicted of theft committed during the period of suspension.

Alt. Count 141: Cautioned and discharged.

SENTENCE

UNENGU, AJ

[1] The accused in the matter were arraigned before this Court with various offences of fraud with alternative counts of theft, theft of general deficiency and theft by false pretences. They were, after a trial, however, convicted of theft, which is an alternative court of count 139 whilst accused two was also convicted of fraud as an alternative count to count 141.

[2] In retrospection, it is my view that the conviction of accused two of fraud is inappropriate and incompetent as the offence of fraud was not preferred against accused two as an alternative count, even though fraud and theft by false pretences are related crimes.

[3] Ms Husselmann for the State and Messrs Murorua and Mbaeva represented accused one and accused two respectively.

[4] Ms Husselmann and Mr Murorua, prepared and submitted written heads of argument which they expanded on during oral submissions, Mr Mbaeva did not but submitted orally.

[5] Accused one in mitigation under oath told the court that he was 43 years old, single with two minor children, a daughter of 14 years old and a boy of 11 years. Both children stay with their mother in Walvis Bay. He stays in the north where his businesses are situated in Oshikango, Oshakati and Eenhana. He owns two building stores, trucks, transportation and a property division. Accused further told the court that he is an employer of 50 people, who work for him in his businesses – a businessman with good standing with the Receiver of Revenue, and a contributing member of the Namibian business community at large. Furthermore, Mr Dias told the court that the loss suffered by Pupkewitz and Sons Company was compensated with his pension money which was not paid to him by the company after his dismissal from employment and that some of the goods stolen were recovered by the complainant.

[6] When asked by his counsel what his attitude towards the offence was, accused one replied that maybe he made a wrong decision that he should have waited for the bank to release the funds before taking the stuff he took. In cross-examination by Ms Husselmann, accused one told the court that he provides for his children and spends ten days in a month with them.

[7] On 19 December 2014, the day of sentence, accused one applied to court to be allowed to lead further evidence in mitigation about his medical condition – which was granted by the court. He told the court that he suffers from Crohn’s disease of the colon diagnosed in 2010. This illness has affected his physical and mental health. He told the court that he did not reveal this condition to court because of fear that the print media would print his medical history which he did not want people to know about. However, after talking to the media to keep the condition confidential, he decided to tell the court about the disease.

[8] Dr Nyati, practicing as a General Practitioner at Maerua Mall, Windhoek, who examined him on 18 December 2014, also testified on behalf of Mr Diaz (accused one). In his evidence, Dr Nyati confirmed that accused one was diagnosed by a specialist Gastroenterologist and physicians in Cape Town with crohns disease which he described as an inflammation of the gut. He also explained the symptoms thereof and how it is treated. When asked by Mr Murorua to volunteer an opinion whether the condition of accused one is better managed in a general society setting as opposed to a prison setting, Dr Nyati has this to say: ‘My Lord in the case of Diaz it may not be easy to generalize because he has suffered the complications some of which I have alluded to, he has undergone 2 operations where they had to resect, first they started with half the colon so after they remove (sic) the colon the surgeons performed an ileostomy where they take the remaining part of the bowl and protrude it through the skin and then the rectum is shut off so that he passes faecal matter though that hole into a bag so this complicates his condition because, remember I said he still has this crohn’s disease it is not completely cured now he also got to do with an ileostomy where his intestines are stitched to his skin, the case of that would require a lot of attention, there is a lot of complications that can happen if someone does not clean it properly or empty the bag properly it may fall back inwards it may cause a lot of infections around the wound, it may cause sepsis the person gets the whole body infected, so there is a lot of care that has to be taken with that ileostomy’. (Emphasis added).

[9] I gather from the evidence of Dr Nyati that what is required most is not treatment, the treating of a person with a colostomy bag but the taking care of the colostomy bag, to prevent infections and sepsis around the wound. It is also the evidence of Ms Nauyele Shalihu, the Senior Superintendent and Head of the Health Centre in the Windhoek Central Prison. She testified that having a colostomy bag is not regarded as a special case because, according to her, it is a condition not a disease. Ms Shalihu testified that nurses at the Centre, including herself are trained to handle colostomy bags. With a medical doctor to be added to the staff compliment of the Centre, I am satisfied that accused 1’s health condition will be taken care of properly.

[10] In his address, Mr Murorua counsel for accused one implored the court to impose an appropriate sentence in accordance with the objectives of sentencing, namely prevention, retribution, rehabilitation and deterrence. Counsel agrees that a sentence to be imposed is for the discretion of the court but pointed out that the court has options to impose a fine, a suspended term of imprisonment, a periodical imprisonment or a direct imprisonment. He further submitted that the court should not impose a harsh sentence on accused one but impose a sentence in keeping with the offence and the offender. In support of his submission, counsel referred the court to the triad in the well-known case of R v Zinn[1].

[11] In R v Zinn[2],above Rumpff, JA stated:

‘What has to be considered is the triad consisting of the crime, the offender and the interests of society.’

[12] Accused one testified under oath and placed before court his personal factors and the circumstances under which the offence was committed. What stands out are factors that he is a first offender, because the State did not prove previous convictions against him and that his pension money has been taken away by Pupkewitz and Sons to compensate for the loss suffered as a result of the offence perpetrated by him. He has also a medical condition which requires constant care and medication. The other mitigating factors are the usual and common mitigating factors attached to and are raised almost by all accused persons during sentencing. Generally, Mr Murorua pleaded with the court not to impose a custodial sentence on accused one but urged the court to impose a deterrent sentence. According to him, first offenders should, as far as reasonably possible, be kept out of prison and requested the court to also consider factors such as the status of the offender, economic situation, marital status and reform potentials of the accused. I agree. However, as pointed out above, the latter factors are not mitigating factors peculiar to accused one alone. These are factors to be considered together with other factors of the offender, the nature of the offence convicted with and the interests of society. In conclusion, counsel asked the court to impose a fine of N$10 000 (ten thousand) coupled with an imprisonment period to be wholly suspended. After leading evidence of Dr Nyati on the health condition of accused one, Mr Murorua still urged the court not to impose a custodial sentence on accused one.

[13] On his part, accused two also chose to mitigate under oath. Similar to accused one, accused two is also not married but has five children of ages between nine and one and half years old. Three of the children stay with their mothers while the remaining two and their mother, his fiancé, stay with him. He has started a small construction company in the building industry and is currently building a house for Mr Abdul in Ongwediva. He said that it is difficult for him to find work because of the negative reports about him in the media. He told the court that he had three permanent and about eight temporary employees working for his company. According to him, this is his first offence he was convicted with, that he had completed matric in 1997 and did some courses in construction work. He indicated to the court that his pension money has been taken by the company to compensate for the loss suffered and pleaded for mercy by saying that he will never, ever attempt to do the same thing he did.

[14] Mr Mbaeva for accused two did not prepare written heads of argument. He started of with his oral submissions by confirming and making common cause with submissions by Mr Murorua. He expressed the views that Mr Murorua’s submissions are equally relevant to accused two. In addition, Mr Mbaeva submitted that accused two suffered psychologically as a result of the matter hanging over his head for so long. In conclusion counsel also requested the court to impose a sentence of a fine coupled with a period of imprisonment to be wholly suspended.

[15] Ms Husselmann, counsel for the State submitted that accused one and two committed the offences while in positions of trust. Both accused were employees of Pupkewitz and Sons at the Oshikango branch of Pupkewitz Megabuild where they occupied positions of a branch manager and a salesperson respectively. Counsel argued that the two accused abused the trust placed in them thoroughly. I agree with the submission by counsel. I also do not think that Messrs Murorua and Mbaeva would argue against that and dispute that accused one and two abused the trust placed in them by the employer.

[16] With regard accused two, Ms Husselmann agreed with Mr Mbaeva that the role played by accused two in the theft of the goods is different from the role played by accused one. She urged the court to consider that fact in favour of accused two as a mitigating factor. That will be done. Counsel also urged the court to impose a direct imprisonment on both accused for abusing the trust and for not showing remorse during the trial, in particular accused one who displayed arrogance.

[17] In sequel, counsel referred the court to a catalogue of cases of this court – mostly unreported cases and expanded her submissions on consistency in sentencing as follows:

‘CONSISTENCY IN SENTENCING

2.1 In Immanuel Reynecke v The State CA 63/96 an unreported judgment of the above honourable court delivered on the 17/03/1997 by Strydom, JP et Teek, J, the court on appeal upheld a sentence of 3 years imprisonment of which half was suspended on the usual conditions. The appellant a 43 year old first offender who had pleaded guilty was convicted and sentenced for fraud. The potential prejudice suffered by the complainant was N$19 500.00, It was held inter alia that:

“Crimes involving dishonestly are prevalent and this court did not hesitate in the past to confirm prison sentences in regard to first offender.”

2.2 In Deon Angula v the State an unreported judgment of the above honourable court delivered on the 12/12/2001 by Hannah, J et Mtambenengwe, AJP. the accused was 22 year old first offender who had pleaded guilty to fraud in the amount of N$1 171.15 and on appeal was sentenced to three years imprisonment of which two years were suspended it was held that