REPUBLIC OF NAMIBIA
CASE NO. CC 62/2007
IN THE HIGH COURT OF NAMIBIA

In the matter between:

and

Heard:        24 January 2011 Delivered:    14 February 2011

[2] The applicant is seeking leave to appeal against the sentence imposed on the first count only. The grounds set out in his written application (as amended during the hearing of the application) are as follows:

"1. An effective term of imprisonment of 10 years is shockingly inappropriate in that it:
1.1. induces   a   sense   of  shock   when   considered   against sentences imposed for similar offences in the High Court;
1.2. is out of proportion with the totality of the accepted facts during mitigation.

2. The Court erred in not imposing a shorter sentence coupled with community service plus a further suspended sentence.
3. The sentence imposed is so excessive that no reasonable man would have imposed it.
4. The Court erred in over-emphasizing the seriousness of the offence and the deterrent effect of the sentence and in so doing the court failed to individualize the sentencing of the applicant and in the process ignored the mitigating features of the applicant's case."

Court put the issue of remorse in perspective by taking a balanced and nuanced approach. The Court there observed that the accused's remorse seemed to grow over time as it became evident that he would be extradited to Namibia to stand trial; that his remorse and offers of compensation and assistance to the complainant and prosecution were at first not unconditional, but arose in an attempt to secure benefits for himself. Nevertheless, the accepted facts in that case are that the accused pleaded guilty and testified in full. He exposed himself to cross examination and questions by the Court. He repeatedly and sincerely expressed remorse in the witness box and offered to make amends by assisting the State in the prosecution of his co-accused. By the time the trial started, he had already made restitution to the complainant of the full amount lost by means of the fraudulent scheme, not only the amounts from which he personally benefited; he had made full disclosure to the complainant and had testified at the disciplinary hearing of a colleague who was also allegedly involved. The accused frankly admitted that greed motivated his criminal conduct and did his best to explain his motives and state of mind. It was very clear that the accused was mindful of the devastating effect his conduct has had on his family. The prosecutor in that case was satisfied that the accused could not have done more than he did to display his remorse. In my view there is no misdirection in describing the remorse displayed at the time of Ganes' trial as genuine.

[12] In regard to the second ground of appeal, which is not framed very clearly, counsel explained that the complaint is that the Court should have imposed a shorter period of imprisonment partly suspended on condition that the accused performs community service. As far as I can recall the issue of the accused performing community service was not argued before me during the trial and no specific offer containing any details was made. The issue of a suspended sentence was argued in the context of a fine being imposed, coupled with a condition that the applicant compensates the NBC. In fact, the argument was that the applicant should not serve an effective period of imprisonment at all. Be that as it may, in my view it was incumbent upon the Court in the circumstances of this case to impose an effective period of imprisonment. In this respect, applicant's counsel in this application, agrees. The Court came to the assistance of the applicant by suspending part of it. The Court further took up his offer of compensation by incorporating it as a condition of suspension to take care of the State's concern that he might not honour the offer and yet receive a lighter sentence. In my view the sentence is onerous enough and should not also include a period of community service.

[14] I am in agreement with State counsel's submissions. In my view the applicant has not pointed to any aspect of the sentence which is reasonably likely to be successful on appeal. The application is accordingly refused.

VAN NIEKERK, J

Appearance for the parties 

For the applicant:					Adv G Hinda
							Instr. by Isaacks & Benz Inc

For the respondent:					Adv E Marondedze
							Office of the Prosecutor-General