Court name
Supreme Court
Case name
S v Munyama
Media neutral citation
[2011] NASC 13
Judge
Mainga JA













REPORTABLE



CASE NO.: SA 47/2011


IN
THE SUPREME COURT OF NAMIBIA






In
the matter between:














GERRY
WILSON MUNYAMA



APPELLANT











and


















THE
STATE



RESPONDENT











CORAM: MAINGA
JA, STRYDOM AJA et CHOMBA AJA






Heard
on: 21 October 2011


Delivered
on: 9 December 2011


___________________________________________________________________



APPEAL JUDGMENT


___________________________________________________________________






MAINGA
JA.:




  1. The appellant was
    convicted on two counts, count 1: (fraud) and count 2: (forgery) by
    van Niekerk J. The sentence imposed were as follows: in respect of
    count 1 (fraud) 10 years imprisonment of which 3 years were
    suspended for five years on condition, first, that appellant should
    not be convicted of fraud or theft committed during the period of
    suspension, secondly, that appellant compensates the Namibian
    Broadcasting Corporation (NBC) in the amount of N$100,720.00 by 31
    March 2011; in respect of count 2 (forgery), 3 years imprisonment
    which was ordered to run concurrently with the sentence on count 1.









  1. The appeal is before us
    with the leave of this Court against sentence imposed on the count
    of fraud only, the trial Judge having refused leave to appeal.









  1. The circumstances that
    led the appellant in the position he finds himself in arose in this
    way and I relate thereto in the broadest brush of strokes. 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 authorised 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 Voights Centre with exclusive
    signing powers bestowed in him alone. He deposited N$345,995.99
    therein being a N$25,000.00 donation from FNB Foundation which was
    to be utilised towards the costs of training staff at the NBC, the
    rest of the money which made up the N$345,995.99 was raised from the
    proceeds of the NBC shares which appellant was authorised to claim
    from the Old Mutual Company. He withdrew all the moneys and closed
    the account during August 2005. He was arrested on 29 November 2005
    for the offences in question. While the Court below had no doubt
    that appellant used all the moneys withdrawn from the account for
    his own purposes, it notwithstanding, found the actual loss to NBC
    to be in the amount of N$100,720.00. The remainder of N$245,275.99
    from the N$345,995.99, the Court below found that the State failed
    to prove that amount beyond reasonable doubt to have been
    fraudulently made, as evidence led showed that appellant made out
    two cheques in the said amount to Khomas Engineering CC which
    amounts were allegedly owed by the NBC to the Close Corporation.









  1. Mr. Hinda, counsel for
    the appellant, made no attempt to down play the seriousness of the
    crime. In the ultimate paragraph of his heads of argument he
    proposed a sentence of six years, half suspended on the condition
    set by the Court below. That attitude on the part of the appellant
    makes common cause with the State’s attitude that the
    circumstances of this case call for a custodial sentence. That being
    the case, what remains before us is whether the sentence of ten
    years under the circumstances is excessive to an extent that would
    entitle interference therewith.









  1. The approach to be
    adopted in an appeal such as this is encapsulated in the statement
    by Holmes JA in the South African case of S v Rabie 1975 (4)
    SA 855 (A) at 857D-F:








1. In every appeal against
sentence, whether imposed by a magistrate or a Judge, the Court
hearing the appeal –








  1. should be guided by the principle
    that punishment is








pre-eminently a matter for the
discretion of the trial Court’: and








  1. should be careful not to erode such
    discretion: hence the further principle that the sentence should
    only be altered if the discretion has not been ‘judicially and
    properly exercised.








2. The test under (b) is whether the
sentence is vitiated by irregularity or misdirection or is
disturbingly inappropriate”.








  1. This traditional
    approach is trite in law and has been adopted, stated and restated
    in numerous decisions by the courts in Namibia. (Cf S v Tjiho
    1991 NR 361 (HC) at 364F-H, 366A-B; S v van Wyk 1993 NR 426
    (SC) at 447G – 448A; S v Shikunga and Another 1997 NR
    156 (SC) at 173B-E; S v Gaseb and Others 2000 NR 139 (SC) at
    167H-I; S v Alexander 2006 (1) NR 1 (SC) at 4D-5A-E.









  1. The Courts have by
    judicial precedents expounded on the test above and justified
    interference on appeal if a trial Court has committed a misdirection
    of fact or law which by its nature, degree or seriousness is such
    ‘that it shows directly or inferentially that the Court did
    not exercise its discretion at all or exercised it improperly or
    unreasonably’ (see: S v Pillay 1977 (4) SA 531 (A) at
    535D-G; if a material irregularity has occurred in the proceedings
    (S v Tjiho, supra, at 336B); 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) at 790D-E); or a patent and disturbing disparity exists
    between the sentence that was imposed and the sentence that the
    Court of Appeal would have imposed had it been the Court of first
    instance (S v Van Wyk, supra, at 447I);
    S v Petkar 1988 (3) SA 571 (A) at 574C); if there has been an
    overemphasis of one of the triad of sentencing interests at the
    expense of another (S v Zinn 1969 (2) SA 537 (A) at 540F-G;
    and S v Salzwedel and Others, supra at 790F; 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).









  1. The main thrust of the
    argument of Counsel for the appellant was that the Court below
    failed to live up to the principle of consistency in sentencing the
    appellant. To this end the Court’s attention was drawn to
    several domestic and South African decisions of striking similarity
    in terms of the offence and roughly comparable personal
    circumstances. (Cf. S v Skrywer 2005 NR 289 (HC), a cashier
    at Lewis Stores who stole N$9,993.00 cash from the employer, on
    appeal the sentence of four years was reduced to two years, 1 year
    suspended for five years; S v Carl Brune, (HC), Case No. CC
    01/2003 (unreported), accused defrauded the employer in the amount
    of N$446,814.47, a sentence of six years was imposed, half
    suspended; S v Pieter Johan Myburgh (SC), Case No. SA 21/2001
    (unreported) two counts of fraud (6 and 7) involving an amount of
    N$500 000.00 were taken together for purposes of sentence and
    sentenced to five years imprisonment; S v Goldman 1990 (1)
    SACR 1 (A) appellant had received a harsher sentence compared to his
    co-accused no. 1, when they relatively had equal degrees of
    participation and moral blameworthiness and comparable personal
    circumstances, on appeal the sentence of twelve years was
    substituted in its instead to five years wholly suspended; S v
    Boesak
    , a former minister of the Dutch Reformed Mission Church
    in Bellville, President of the World Alliance of Reformed Churches
    (WARC) director and trustee of ‘The Foundation for Peace and
    Justice’ (FPJ) was convicted on three counts, counts 4 and 5
    involving an amount of $259,161.21 and count 31 involving an amount
    of R147,160.25 was sentenced to an effective three years
    imprisonment).









  1. To complete this
    catalogue of similar offences, counsel for the appellant referred to
    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 in which van Niekerk J was the presiding
    officer. 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. Although his part of
    the fraudulent scheme amounted to N$111,359.62, Telecom recovered
    N$1,225,493.85 through the sequestration proceedings which is more
    than the total sum of the actual and potential losses incurred as a
    result of the 13 offences Ganes committed. Ganes was sentenced to
    N$100,000.00 or two years imprisonment plus a further eight years
    imprisonment of which six years were suspended.









  1. The trial Judge in her
    judgment refusing the leave to appeal distinguished this case from
    the Ganes matter on two grounds, first, that Ganes exhibited
    genuine remorse while the appellant did not; secondly, Ganes was a
    senior employee who acted under the influence of a more senior
    colleague, whereas the appellant was the most senior employee
    (Director-General) of the NBC.









  1. Sentencing appropriately
    is one of the more difficult tasks which faces courts and it is not
    surprising that honest differences of opinion will frequently exist
    (S v Sadler 2000 (1) SACR 331 (SCA) at 335f), for example, on
    the comparison between the Ganes case and this matter another
    Judge given the distinction made by van Niekerk J above would have
    found that in the Ganes matter the potential loss to Telecom
    was twice higher than in the current case, Ganes and his colleagues
    continued to loot Telecom until the crime was detected, that crime
    was perpetuated for a period threefold longer than in the current
    case, Ganes was a fugitive from the law who resisted extradition and
    sequestration of this estate with vigour, his ultimate co-operation
    with the police, the willingness to become a State witness and his
    eventual plea of guilty (which the Court below described as genuine
    remorse) was but disingenuity to curry favour with the Court, that
    theft of copper wires was a thriving industry at the time.









  1. Although it is trite
    that sentences should be individualised, our Courts generally strive
    for uniformity of sentences in cases where there has been a more or
    less equal degree of participation in the same offence or offences
    by participants with roughly comparable personal circumstances. (S
    v Goldman, supra
    , at 3E). In S v Strauss 1990 NR
    71, O’Linn J catalogued nineteen similar crimes of theft of
    rough and uncut diamonds and stated, “clearly indicates the
    approach of the courts in the past. The Court must obviously attach
    great weight to this catalogue, while at the same time balancing it
    against the principle of individualisation. One must look at which
    circumstances, personal or otherwise, can be taken as distinguishing
    factors…which would justify a sentence which is out of line
    with the cases to which the Court has referred.” The principle
    of consistency in sentencing has gained wide acceptance. Its
    significance lies in the fact that it strives to avert any wide
    divergence in the sentences imposed in similar cases and should thus
    appeal to any reasonable person’s sense of fairness and
    justice. One advantage of consistency in sentencing is that it
    promotes legal certainty and consequently improves respect for the
    judicial system. (S v Skrywer, supra; SS Terblanche, The
    Guide to Sentencing in South Africa
    , 1999 at 139).









  1. However, there is a need
    to acknowledge that:








Imperfection inherent in
criminal trials…means that persons similarly placed may not
necessarily receive similar punishment. …What also needs to be
acknowledged is that the possibility of error will be present in any
system of justice and that there cannot be perfect equality as
between accused persons in the conduct and outcome of criminal
trials. We have to accept these differences in the ordinary criminal
cases that come before the courts, even to the extent that some may
go to gaol when other similarly placed may be acquitted or receive
non-custodial sentences.” (S v Mwakwanyane and Another 1995
(2) SACR 1 (CC) par [54]).








  1. I thus make no firm
    conclusion that the Court below misdirected itself when it imposed a
    sentence which might appear to be out of line with other precedents
    on similar crimes. I shall assume in favour of the respondent that
    no such misdirection exist.









  1. I heed to the admonition
    that a Court of Appeal will not alter a determination arrived at by
    the exercise of a discretionary power merely because it would have
    exercised that discretion differently. There must be more than that.
    At the same time, it has to be recognised that the admonition cannot
    be taken too literally and requires substantial qualification. If it
    were taken too literally, it would deprive an appeal against
    sentence of much of the social utility it is intended to have. So it
    is said that where there exists a ‘striking’ or
    ‘startling’ or ‘disturbing’ disparity
    between the trial court’s sentence and that which the
    appellate court would have imposed, interference is justified. In
    such situations the trial court’s discretion is regarded…
    as having been unreasonably exercised. (S v Sadler, supra,
    at 334I – 335A).









  1. Mr. Marondedze for the
    respondent submitted that the Court below did not commit a
    misdirection in sentencing the appellant and urged this Court not to
    interfere with the exercise of the Court below’s discretion.
    That submission may be undoubtedly correct, but it is clear that








(t)he Court of appeal, after
careful consideration of all the relevant circumstances as to the
nature of the offence committed and the person of the accused, will
determine what it thinks the proper sentence ought to be, and if the
difference between that sentence and the sentence actually imposed is
so great that the inference can be made that the trial court acted
unreasonably, and therefore improperly, the Court of appeal will
alter the sentence. (S v Anderson 1964 (3) SA 494 (AD) at
495G-H; S v Salzwedel and Others 2000 (1) SA 786 (SCA) at
790C-F).








  1. The hierarchical
    structure of our Courts is such that where such differences exists
    it is the view of the appellate Courts which must prevail. (S v
    Sadler, supra,
    at 335F).









  1. On considering the
    circumstances of the case and the person of the appellant, namely,
    the amount appellant enriched himself with when the bulk of the
    potential loss was utilised to settle the debts of the NBC, the
    period from May to August 2005 within which he opened and closed the
    account on his own accord, appellant’s fall from grace, the
    trauma and disruption it must have caused those near and dear to
    him, the order of the Court below that appellant compensates the NBC
    in the amount he took for himself (which amount has since been paid
    before this appeal was heard), we find a striking disparity between
    the sentence imposed by the Court below and the sentence which this
    Court would have imposed had it been sitting as the trial court. The
    sentence came as a shock to this Court and it has to be altered.









  1. It is unnecessary to
    repeat yet again what the Court below had said about crimes like
    fraud and corruption. It is sufficient to say that that Court was on
    point. They are serious crimes, the deleterious impact of which upon
    societies is too obvious to require elaboration. Dishonesty of the
    kind perpetuated by appellant for no other reason than
    self-enrichment, and entailed gross breaches of trust should be
    visited with vigorous punishment where necessary.









  1. It remains to substitute
    what I consider to have been the appropriate sentence. Both the
    appellant and the defence are ad idem that the circumstances
    of this case call for the imposition of a period of direct
    imprisonment. The quarrel of this Court and the Court below is the
    period of ten years, it is harsh under the circumstances, other,
    than that the sentence is in order. In substituting the sentence, I
    take into consideration that appellant had suffered in many ways,
    the factors which the Court below had documented in greater detail
    and the fact that the NBC has been compensated.









  1. In the result the appeal
    succeeds. It is ordered that the sentence of 10 years imprisonment
    is substituted therefore a period of 6 years of which 3 years is
    suspended on the same conditions imposed by the Court below. The
    sentence on count 2 to run concurrently with the sentence imposed on
    count 1. In terms of section 282 of the Criminal Procedure Act, 1977
    (Act No 51 of 1977) the sentence is backdated to 30 September 2010.
















__________________



MAINGA JA














I
agree.











__________________



STRYDOM AJA










I
agree.











___________________



CHOMBA AJA






























Counsel
on behalf of the Appellant:



Mr.
G.S. Hinda



Instructed
by:



Isaacks
& Benz Inc.











Counsel
on behalf of the Respondent:



Mr.
E.E. Marondedze



Instructed
by:



Prosecutor-General