Court name
Supreme Court
Case name
S v De Klerk
Media neutral citation
[2006] NASC 5





CASE NO







REPORTABLE








CASE NO. SA 18/2003






IN THE
SUPREME COURT OF NAMIBIA













HARRY
DE KLERK



Appellant






versus













THE STATE



Respondent









CORAM: Shivute
A.J.A. et Maritz, A.J.A.


Heard
on: 2004/10/16



Delivered on: 2006/12/08



_____________________________________________________________________



APPEAL JUDGMENT





MARITZ,
A.J.A.:
[1] The appellant, like many other greed-inspired
criminals before him, ultimately fell victim to his earlier unlawful
success: Emboldened by the apparent ease with which he and four
accomplices had broken into and stolen more than a N$ ¼
million from a strongroom of Imcor Tin Mine Ltd during late October
1997, the appellant sought to supplement his earlier ill-gotten gains
by a repeat of the burglary about a year later. His extensive
preparations for the crime and the solicitation of his nephew’s
assistance came to naught when he was caught red-handed by the mine’s
security officers as he was about to gain entrance to the office
complex through the roof of the section containing the company’s
safe. The reward for his long southward journey from Windhoek to Rosh
Pinah was not the illicit bounty he had hoped to gain but an arrest
and incarceration which he justly deserved. He was brought to book
and on his plea of guilty convicted in the High Court on two counts:
housebreaking with intent to steal and theft of N$250 787.29 and
housebreaking with intent to steal and attempted theft.







  1. He
    was sentenced on the first count to eight years imprisonment and on
    the second to three years imprisonment. To ameliorate the composite
    effect of the sentences, the Court a quo directed that one
    year of the latter sentence should be served concurrently with the
    sentence imposed on the first count. Aggrieved by – what he
    considered to be - the severity of the sentences, the appellant
    applied for leave to appeal against them. The Court a quo
    dismissed the application but the appellant eventually petitioned
    for and obtained leave from the Chief Justice to prosecute the
    appeal against both sentences in this Court.







  1. It
    stands to his counsel’s credit, I must note, that the appellant
    conceded at the commencement of the hearing on appeal that the
    sentence imposed on the second count was entirely appropriate and,
    in the circumstances, justly deserved. In my view, the concession
    was properly made if regard is being had to the aggravating factors
    apparent from the evidence – most notably, that the appellant had
    extensively planned and prepared for the repeat offence over a
    considerable period of time and that he had not only solicited the
    assistance of his much younger nephew but, when the latter initially
    declined, actually prevailed upon him to participate.







  1. Counsel’s
    concession on behalf of the appellant appreciably narrowed the scope
    of the appeal and it now only remains for this Court to consider
    whether or not the sentence of eight years imprisonment for the
    crime of housebreaking with intent to steal and the theft of a
    quarter million Namibian dollars was appropriate in the
    circumstances.







  1. In
    examining on appeal whether or not a sentence imposed by a lower
    Court is appropriate or not, a Court of appeal will be mindful that
    the determination thereof is pre-eminently a matter entrusted by law
    to the trial Court. As this Court remarked in S v Alexander
    (Unreported judgment in case No. SA 5/1999 dd. 13 February 2003) at
    pp. 3-4:







Steeped in the atmosphere of
the case, exposed to the emotions and demeanour of victims and
perpetrators alike, alert to local circumstances such as prevalence
and the community’s legitimate interests in a fair and just
judicial response to the crimes in question, the trial Judge is
normally better positioned to tailor a fitting sentence than a Court
of appeal which has but a transcript of the record to judge the
matter.”









This Court
will not “usurp” the sentencing discretion of the trial Court (S
v Malgas
, 2001(2) SA 1222 at 1232 para 12) and it does not have a
benevolent discretion to ameliorate those sentences (R v Lindsay
1956(2) SA 235 (N)). This approach, in the words of Chomba AJA (S
v Ndikwetepo and Others,
1993 NR 319 (SC) at 322F), “through
invariable application by appellate Courts has acquired the mantle of
a rule of law – that punishment is pre-eminently a matter for the
discretion of the trial Court”.






  1. Moreover,
    a sentence is not inappropriate simply because a Court of appeal
    considers that the imposition of another type of punishment might
    also have been appropriate in the circumstances of the case. It is
    also not inappropriate because the Court of appeal would have
    imposed a slightly different sentence had the matter been called
    before it in the first instance. It is inevitable, as Schreiner J
    pointed out in R v Reece 1939 TPD 243 in fine, that
    different people will take different views on what an appropriate
    punishment would be in any particular case. Between the two
    extremities of a sentence which is inappropriately lenient and one
    which is inappropriately severe, is a range of appropriate
    sentencing options available to the trial Judge. In the judicial
    (and judicious) selection of a particular option intended to give
    effect to the interrelated components of Zinn’s oft-applied
    triad
    (c.f. S v Zinn, 1969(2) SA 537 (A) at 540G) and
    best suited to satisfy the objectives of contemporary criminal
    penology (c.f. S v Vekueminina and Others, 1992 NR 255 (HC)
    at 257B and S v Khumalo and Others, 1984(3) SA 327 (A)), the
    trial Judge is allowed a margin of judicial appreciation. The
    selection of a particular sentencing option and the imposition
    thereof with a determined degree of severity (or leniency) will only
    be interfered with on appeal if the trial Judge has not exercised
    his or her discretion judicially and properly (c.f. S v Gaseb and
    Others
    , 2000 NR 139 (SC); S v Shikunga and Another,
    2000 (1) SA 616 (NmS) at 631G). The litmus test to pass muster
    in that inquiry, reduced to its bare essentials - as Holmes JA
    observed in S v Rabie, 1975 (4) SA 855 (A) at 857E –
    is whether the imposed sentence is (a) vitiated by irregularity or
    misdirection or (b) is disturbingly inappropriate (Compare also: S
    v Van Wyk
    , 1993 NR 426 (SC) at 447G-H).







  1. It is
    with these two components of the test in mind that I now turn to
    consider the merits of the appeal – and I shall do so, firstly, by
    examining whether the appellant has made out a case that his
    sentence is vitiated by an irregularity or misdirection.







  1. In
    the appellant’s application for leave to appeal he asserts that
    the Court a quo has “erred in the law and/or on the facts
    to give no, alternatively, insufficient weight” to the evidence
    that he was a first offender; that he is a person of “good
    character” who had created a favourable impression as a witness;
    that he was relatively young and that his future might be “destroyed
    and/or severely affected by a long term of incarceration”; that he
    had remorse and that he offered a plea of guilty, especially in
    relation to the more serious of the two counts “where there
    existed very little evidence against him”. It falls to be noted
    that the appellant did not suggest that the Court a quo
    misdirected itself in regard to any of the legal principles relating
    to sentencing or that a material irregularity has occurred in the
    proceedings (S v Tjiho, 1991 NR 361 at 366B). Except for the
    last of those grounds, Mr Grobler, who appears for the appellant,
    did not persist with any of the alleged misdirections – except,
    perhaps, within the context of his argument on the severity of the
    sentence, which I shall consider later in this judgment. He,
    however, sought to press another in his heads of argument: That the
    trial Judge suspected that the appellant had played a more
    substantial role in the planning of the first burglary and
    “sentenced him accordingly”. He also submitted without much
    emphasis, I should say to his credit, that the Court a quo erred
    by emphasising the importance of the mining industry to the Namibian
    economy as an aggravating factor.







  1. Even
    if I were to accept that no evidence had been led in aggravation
    about the importance of the mining industry to the economy of
    Namibia, it seems to be a rather common sense inference made by the
    Court a quo from the operations of a notoriously known player
    in the Namibian economy. The extensive regulation of the mining
    industry by legislation and the frequency with which cases relating
    to that sector of the economy come before the courts are
    testimonials of its importance and profile. I do not think that the
    Court’s comments made in general terms about employment
    opportunities provided by the mining industry and foreign investment
    attracted by as part of its discussion of society’s interest in
    combating crimes of this nature was inappropriate or that it
    constitutes a misdirection. I am not persuaded that the Court a
    quo
    ought to have assessed the value of these considerations
    differently from what it did. These findings were, in any event, not
    of any great moment in the totality of evidence considered as part
    of the process of reasoning in determining the appellant’s
    sentence and, as Mr Small pointed out during argument on behalf of
    the State, not every misdirection justifies interference on appeal.
    This much is clear from the reasoning in S v Pillay, 1977 (4)
    SA 531 (A) at 535E-G:







Now the word "misdirection"
in the present context simply means an error committed by the Court
in determining or applying the facts for assessing the appropriate
sentence. As the essential inquiry in an appeal against sentence,
however, is not whether the sentence was right or wrong, but whether
the Court in imposing it exercised its discretion properly and
judicially, a mere misdirection is not by itself sufficient to
entitle the Appeal Court to interfere with the sentence; it must be
of such a nature, degree, or seriousness that it shows, directly or
inferentially, that the Court did not exercise its discretion at all
or exercised it improperly or unreasonably. Such a misdirection is
usually and conveniently termed one that vitiates the Court's
decision on sentence. That is obviously the kind of misdirection
predicated in the last quoted dictum above: one that "the
dictates of justice" clearly entitle the Appeal Court "to
consider the sentence afresh"”











  1. I am
    also not satisfied that the trial Judge imposed a heavier sentence
    on the appellant because she suspected that he had played a more
    substantial role than he would have had the Court believe in the
    planning of the first burglary. It is indeed so that the Court
    expressed grave doubt about the veracity of the account given by the
    appellant both with regard as to who he had been involved with and
    what his own role therein had been. The origin of this observation
    is not shrouded in any mystery – it is all too clear that it was
    made in view of the frontal challenge launched by the Prosecution
    during cross-examination on the appellant’s explanation and, in
    particular, the many inconsistencies and improbabilities inherent
    therein. The trial Judge had to make a finding in that regard and
    she concluded that, her suspicion notwithstanding, the appellant had
    to be accorded the benefit of her doubts and that he had to be
    sentenced on the basis of the account he had given to the Court.
    Having considered the judgment on sentence very carefully, I find no
    indication of the intellectual impropriety alluded to Mr Grobler and
    I am entirely unimpressed by his contention that the trial Judge
    actually sentenced the appellant on a different factual basis than
    the one professed.







  1. The
    only other misdirection alluded to in argument relates to the degree
    of contrition shown by the appellant for the commission of his
    crimes. The trial Judge noted that, but for the appellant’s
    admission, the Prosecution would have had little to go by to secure
    a conviction on the fist burglary and that his plea of guilty to
    that count “must be indicative at least of some degree of
    contrition”. Appellant’s counsel suggests that the degree of
    remorse shown by the appellant was understated and, therefore,
    constituted the misdirection alleged in the application for leave to
    appeal. In dealing with this point, this Court must caution itself
    (as Van Winsen did in S v Fazzie and Others, 1964(4) SA 673
    (A) at 684B) that a Court of appeal “will not readily differ from
    the Court a quo in its assessment either of factors to be had
    regard to or as to the value to be attached to them.”







  1. As it
    is, it seems to me that the Court a quo gave the appellant
    more credit than was due in the assessment of the degree of
    contrition to be inferred from his plea of guilty on the first
    count. The trial Judge premised her finding of contrition on the
    assumption that, but for the appellant’s admission, the
    Prosecution would have had little to go by to secure a conviction on
    count 1. There is, however, no evidential rationale on record for
    that assumption. The Court was simply not apprised of all the
    evidence in the Prosecution’s possession which linked the
    appellant to the first burglary. Neither the evidence nor counsels’
    submissions suggest whether he had been linked to the crime only by
    his confession or by fingerprints found on the scene.







  1. Whereas
    it has become a salient and sound feature of sentencing practice
    that credit should be accorded to an accused for information given
    to the authorities implicating him- or herself (or, for that matter,
    other persons involved) in the commission of crimes which has not as
    yet been solved by the police, it is an area fraught with
    difficulties and both the circumstances under which and the degree
    of credit to be given should be approached with circumspection. I do
    not propose to give a list of guidelines on the principles upon
    which a court should act in such circumstances (as, for example,
    Lord Bingham has done in R v A and B, [1999] 1 Cr.App.R.(S)
    52), nor do I deem it necessary for purposes of this judgment to do
    so.







  1. Suffice
    it to say that although a confession of guilt or a plea of guilty
    (especially when made at the outset of a police investigation or at
    an early stage in the proceedings) may well be indicative of remorse
    on the part of an accused, it remains a factual question to be
    assessed by the Court with regard to the circumstances of the case.
    As part of this assessment the court will consider that and other
    conduct of the accused from which remorse may be inferred (compare:
    S v Coales, 1995 (1) SACR 33 (A) at 36C-E), such as
    co-operation with law enforcement and prosecuting authorities in
    relation to the crimes he or she had committed; assisting the police
    in the detection, investigation and prosecution of others involved
    in the same or related crimes; being open-hearted and truthful to
    the Court; apologising to the victim(s) of his or her crime and,
    wherever possible, by paying compensation to address or limit their
    losses.







  1. Moreover,
    as Flemming DJP said in S v Martin, 1996 (2) SACR 378 (W) at
    383H, true remorse “connotes repentance, an inner sorrow inspired
    by another's plight or by a feeling of guilt” as a consequence of
    the accused’s conduct – a finding which is often difficult to
    make unless the accused “does not step out to say what is going on
    in his inner self”.







  1. Just
    as a plea of guilty in the face of overwhelming evidence does not by
    itself justify an inference of remorse (as the Court held in S v
    Van Der Westhuizen,
    1995 (1) SACR 601 (A) at 605D), the
    confession by an accused to a crime he has been caught in the act
    with unassailable proof available does not necessarily speak of
    contrition. Such a confession or plea may still bear on a possible
    reduction of an accused’s sentence for not wasting the Court’s
    time or the public’s resources, but, for a confession or a plea of
    guilty to point to an inference of remorse, some evidence – or, at
    the very least, some formal acknowledgement by the Prosecution –
    must be tendered in the course of the trial to indicate that it goes
    beyond what the inescapable conclusion facing the accused on the
    weight of evidence would have been. In this case there was none. If
    the Court therefore erred in finding “some contrition” on
    account of the appellant’s plea of guilty, the error favoured the
    appellant.







  1. In
    the result, I do not find any misdirection by the Court a quo on
    facts material to sentencing or, for that matter, on legal
    principles relevant thereto. This Court is therefore not at liberty
    to consider the sentence afresh on account of any misdirection. What
    remains to consider is the issue of severity and whether the trial
    Judge properly and judicially exercised her discretion in that
    regard.







  1. In S
    v Van Wyk,
    1993 NR 426 (SC) at 447H-I this Court (per
    Ackerman AJA) held with reference to S v Whitehead, 1970 (4)
    SA 424 (A) at 436D-E that it will be inferred that the trial Court
    had acted unreasonably if –








there exists such a striking
disparity between the sentences passed by the learned trial Judge and
the sentences which this Court would have passed (Berliner's
case, supra at p. 200) - or, to pose the enquiry in the phraseology
employed in other cases, whether the sentences appealed against
appear to this Court to be so startingly (S v Ivanisevic and
Another, supra
at p. 575) or disturbingly (S v Letsolo,
1970 (3) SA 476 (AD) at p. 477) inappropriate - as to warrant
interference with the exercise of the learned Judge's discretion
regarding sentence.”










  1. In
    other cases the Courts have drawn such an inference if the sentence
    is manifestly inappropriate given the gravity of the offence and
    induces a sense of shock (S v Salzwedel and Others, 2000
    (1) SA 786 (SCA) 790D–E; R v Zonele and Others, 1959 (3) SA
    319 (AD) at 331D) or if there has been such an excessive devotion to
    further a particular sentencing objective that others are obscured
    (S v Maseko, 1982 (1) SA 99 (A) at 102F). These are all
    accepted tests and, as Holmes AJ said in S v Letsoko and Others,
    1964 (4) SA 768 (A) at 777, all amounts to much the same. Mr Grobler
    relies on both these grounds: He submits the sentence of 8 years
    imprisonment evokes a sense of shock and that the Court has placed
    too much emphasis on deterrence as a sentencing objective.







  1. He
    impresses on this Court that the appellant was a first offender at
    the age of 39; that he was gainfully employed for most of his adult
    life and that he had shown genuine remorse for what he had done. He
    highlights the appellant’s obligations towards his disabled
    father, his sickly wife and four children. Much of his argument
    focuses on the moral blameworthiness of the appellant: He submits
    that the appellant did not commit the crime out of greed but that he
    has done so “to relieve his financial position” and to support
    his father and family. It is urged upon the Court that the appellant
    went through a period of severe financial stringency. The appellant,
    he contends, was not the principal perpetrator of the crime. He was
    imposed upon for assistance by a person he only came to know as
    Sonny and was merely engaged for a fraction of the bounty because of
    his expertise as a welder. He was financially in dire straits and
    could not provide adequately for his family from his income of about
    N$1 900 per month.







  1. Mr
    Small, on the other hand, underlines the seriousness of the crime:
    Not only is it by its nature so regarded, but it is also prevalent.
    He refers the Court to the remarks of Strydom JP (as he then was) in
    the unreported case of Thomas Goma Jacobs versus The State
    quoted with approval in S v Bezuidenhout and Others, CA
    58/99, Unreported Judgment of the High Court dd. 17 May 2001, pp
    3-4:








The many reviews that this
Court is dealing with every day and the outcry of the society are all
proof of the prevalence of crime and more particularly crimes such as
housebreaking and theft. Those who commit this crime overlook nobody.
No distinction is made between rich and poor. All levels of society
have fallen victims to thieves and housebreakers alike. Whether we
want to believe it or not, we are involved in a war against crime
which at presence shows no sign of abating. The situation calls for
exceptional measures and in the process the courts play an important
role. In this regard the imposing of a prison sentence for
housebreaking and theft, even in the case of a first offender, has
more or less been the general rule.”










  1. He
    reminds us that cash in the amount of N$250 787.29 was stolen from
    the safe and that nothing has been recovered. Although the appellant
    only received N$10 000, it was his expertise which made the
    commission of the crime possible. Notwithstanding his “noble”
    intentions, he did not spend a penny of his share of the booty to
    care for his father or to settle his debt to a friend. Instead, he
    bought himself a motor vehicle to commute between Windhoek and
    Rehoboth and to transport passengers at a fare on that route. No
    evidence was placed before the court to show that he used the income
    generated for those “noble” purposes. Although the respondent
    accepts that the appellant had financial difficulties, the evidence
    showed that he was better off than many others. He was gainfully
    employed, had a regular income and was a qualified welder who could
    generate additional income by doing private work after hours. No
    evidence was led to show why his wife could not obtain employment
    and supplement the family’s income. Moreover, if one were to
    consider the purpose towards which the appellant applied his
    ill-gotten gains, Mr Small submits, it is clear that he was
    motivated by avarice and greed – not by need.







  1. It is
    evident from the judgment on sentence in the Court below that both
    the mitigating circumstances advanced by the appellant and the
    aggravating circumstances relied on by the Prosecution have all been
    taken into consideration as part of the interrelated principles of
    sentencing considered by the Court: the personal circumstances of
    the appellant, the seriousness of the crime and the interests of
    society (c.f S v Zinn, supra). But, as Ackermann A J A
    said in S v Van Wyk, supra, at 448D-E), “the
    difficulty arises, not so much from the general principles
    applicable, but from the complicated task of trying to harmonise and
    balance these principles and to apply them to the facts”.







  1. I do
    not think that the manner in which the Court has done so can be
    faulted. It cannot be said that “the trial Court ought to have had
    regard to certain factors and that it failed to do so, or that it
    ought to have assessed the value of these factors differently from
    what it did” (per Van Winsen AJA in S v Fazzie and
    Others,
    supra at 684B-C). Neither can it be said that the
    Court did not accord the correct weight to all the mitigating and
    aggravating factors. In arriving at this conclusion, I considered
    the personal circumstances and characteristics of the appellant; the
    need to individualise punishment with regard to the character of the
    appellant; the circumstances which preceded and led up to the
    commission of the crime; the seriousness and prevalence thereof; the
    effect of his imprisonment on his family, his father, and creditors;
    the interests of society and the appellant’s conduct after the
    commission of the crime. I need not repeat all those considerations
    for purposes of this judgment: many of them appear from the summary
    of submissions and findings recorded earlier in this judgment. Two
    of them, however, require special mention: the seriousness of the
    crime and the character of the appellant.







  1. The
    serious nature and prevalence of this type of crime aside, it is
    abundantly clear from the record that it was carefully planned in
    advance and executed with precision. Although the appellant did not
    participate in planning the details thereof, he must have gathered
    from what he had been told that his co-conspirators had inside
    information about the location of the strongroom and safe, the
    layout of the buildings, the security measures in place and the
    large amount of cash in safe storage on that day. Although the
    appellant only received N$10 000, his expertise and industry was the
    most essential cog in the operation which led to the theft of more
    than N$ ¼ million dollar of which the owner did not recover
    any. Crimes involving the theft of such large amounts must
    inevitably result in sentences of some severity.







  1. It
    counts heavily in favour of the appellant that he was a first
    offender at the age of 39. Generally, a Court will be reluctant to
    imprison a first offender if the same sentencing objectives can be
    achieved by the imposition of another adequate punishment (S v
    Seoela,
    1996 (2) SACR 616 (O) at 620C-D). The ratio behind this
    approach is that accused persons falling within that category of
    offenders do not have a demonstrated record criminal inclinations;
    that they are more likely to be rehabilitated by an appropriate
    sentence than hardened criminals; that it may well be the only
    crimes they would commit during their lifetimes and that there is no
    apparent reason to fear that they will become repeat offenders.







  1. It is
    with this in mind that the appellant’s character must be
    considered. I do so whilst considering with sympathy and
    understanding that the appellant’s financial position was very
    precarious at the time. On the other hand, there was much he could
    have done to supplement his income legitimately. Instead, he was, in
    my view, won over by Sonny to assist in the commission of the crime
    with relative ease and without real or undue pressure. He had enough
    time to consider the request and his participation, yet, he did not
    desist. He knew that his participation would require of him to abuse
    the skills which he had acquired through training at public
    corporations or institutions. He was callous about the consequences
    of the crime to the intended victim and gave little or no
    consideration to the extent of the loss to be suffered by it. He did
    not apply his part of the booty to address the immediate concerns
    which had motivated him to participate in the commission of the
    crime. But most importantly perhaps, he did not repent; he did not
    have any remorse. He planned yet another raid and repeatedly imposed
    on his much younger nephew to assist him. He generally behaved
    himself in such a manner as to make it absolutely necessary that
    suitable condign punishment should be imposed on him.







  1. The
    sentence, I agree, is severe but, given all the facts and
    circumstances, it does not appear to me to be so severe that it is
    unjust or unreasonable. It is not disproportionate to the demands of
    the crime and the interests of society – even if due weight is
    given to the personal circumstances and characteristics of the
    appellant. It is certainly does not induce a sense of shock and I am
    not persuaded that it evidences a patent or disturbing disparity if
    compared to the sentence which this Court would have imposed had it
    been the Court of first instance. For these reasons, the appeal
    falls to be dismissed.







  1. In
    conclusion, I must mention that Teek JA presided on the Bench before
    which this appeal was argued. Due to the circumstances detailed in
    the unreported judgment of R D Wirtz v H J L Orford and Another
    (Case No. SA01/2003 dd. 11 May 2005), he became incapable of acting
    and/or is absent within the contemplation of s. 13 of the Supreme
    Court Act, 1990. For the reasons mentioned in that case, the
    remaining two Judges constitute a quorum and may properly
    dispose of the appeal if they are in agreement on the result.







  1. In
    the result, the following order is made:







“The appeal is dismissed.”











(Signed) J.D.G. Maritz



________________________



MARITZ, A.J.A.











I concur.















(Signed) P.S Shivute



________________________



SHIVUTE, A.J.A


































ON
BEHALF OF THE APPELLANT:


Instructed
by:






MR.
Z.J. GROBLER


A. LOUW & CO.



ON
BEHALF OF THE RESPONDENT:


Instructed by:



MR.
D.F. SMALL


PROSECUTOR-GENERAL