Court name
Supreme Court
Case name
S v Van Wyk
Media neutral citation
[2012] NASC 23
Judge
Shivute CJ













REPORTABLE



CASE NO.: SA 94/2011


IN
THE SUPREME COURT OF NAMIBIA






In
the matter between:














THE
STATE



APPELLANT











and


















SYLVIA
CONDENTIA VAN WYK



RESPONDENT











Coram: Shivute
CJ, Maritz JAet Mainga JA


Heard
on: 28/06/2012


Delivered
on: 15/11/2012



_________________________________________________________________







APPEAL JUDGMENT



_________________________________________________________________







MAINGA JA(SHIVUTE CJ AND MARITZ JA
CONCURRING)




  1. A sentence of N$20
    000.00 or 3 years imprisonment, plus a further 3 years imprisonment
    wholly suspended for 3 years for the respondent’s convictions
    on 22 counts of fraud in the sum of N$1 223 610.21 perpetrated for
    over a period of one and a half years,the appellant contends, is so
    extremely lenient that it induces a sense of shock.In addition,it
    submits, the sentence is the product of several misdirections by the
    trial Judge and, therefore, warrantsit to be set aside on appeal and
    to be substituted for an appropriate sentence which suits the nature
    and gravity of the offence, the personal circumstances of the
    respondent and interests of the society. Whether these contentions
    are correct, is the question we are saddled with in this appeal. It
    arose in this way.









  1. On 10 March 2009 the
    respondent, together with Mr Seth Jacobs Louw, appeared before
    Parker J in the High Court on 22 counts of fraud in the sum of N$1
    223 610,21 to the actual or potential loss or prejudice of Nutrifood
    and/or Independence Catering and/or Windhoek Mechanised Accounting
    Service. She pleaded guilty while her co-accused pleaded not guilty.
    A separation of trials was ordered and she was convicted as charged
    on her own admissions. On 5 June 2009 she was sentenced to N$20
    000.00 or 3 years imprisonment, plus a further 3 years imprisonment
    which was wholly suspended for 3 years on condition that she would
    not be convicted of the crime of fraud, committed during the period
    of suspension.









  1. The respondent was
    employed as a creditor’s clerk by Windhoek Mechanised
    Accounting Services (Pty) Ltd, a company duly appointed to render
    accounting services for various companies, inter alia, Nutrifood and
    Independence Catering (Pty) Ltd.As part of its mandate, it was
    responsible to see to the day to day accounting requirements of the
    twocompanies.









  1. Respondent’s
    duties as creditor’s clerk included the reconciliation of
    supply invoices, goods received, vouchers and company orders and, if
    satisfied that payment is due, to make out cheques on behalf of
    Nutrifood or Independence Catering in favour of the suppliers; to
    take the completed cheques to person(s) authorised to sign the same;
    and then to effect payment to the creditors concerned. The scope of
    the supply contracts entailed the issuing of cheques worth millions
    of dollarsannually.









  1. Manzani Enterprises CC
    was one of the suppliersof food products to Nutrifood and
    Independence Catering on a credit basis. Theirs was one of the
    portfolios handled by the respondent.









  1. The respondent and Mr
    Seth Jacobus Louw devised a scheme to generate and, thereafter,
    embezzle and misappropriate duplicate paymentsby Nutrifood and
    Independence Catering to Manzani. Mr Louw approached the respondent
    and suggested the scheme. He would use the invoices of Manzani which
    he would forward to the respondent. Mr Louw had no connection with
    Manzani. How he got hold of Manzani invoices is not clear from the
    record. The respondent would duplicate payments to Manzani by
    causing a genuine payment to be made with Manzani against a specific
    invoice and thereafter she would make out a second cheque in favour
    of Manzani against the same invoice and, depending on which company
    the invoice was addressed to, present it to the authorised person to
    sign on behalf of Nutrifood or Independence Catering.









  1. After the second cheque
    had been signed, she would then add the words 'c/o S. Louw' or 'c/o
    S.J. Louw' thereby altering the wording of the payee to
    read:'Manzani Enterprises CC c/o S. Louw' or 'Manzani Enterprises CC
    c/o S.J. Louw'. Thereafter the respondent would deposit the cheques
    into the Bank Windhoek account of Mr Louw. Mr Louw, in turn,would
    deposit half of the deposit received by him into the respondent’s
    Standard Bank account.









  1. The scheme commenced on
    28 October 2002 and continued until 28 May 2004 - which is a period
    of 1 year and 7 months. Nutrifood was defrauded in the amount of N$1
    068 80918 while Independence Catering’s loss amounted to N$154
    801.03, i.e. the sum of N$1 223 610.21. The illicit proceeds of the
    fraudulent scheme wereshared by the respondent and Mr Louw equally.








The scheme was uncovered
during August or November 2004 when the books of Nutrifood were
audited. The auditors approached Mr Penderis, the main shareholderand
Managing Director of Windhoek Mechanised Accounting Services, and
informed him of a duplicatedcheque payment. A further internal
investigation was conducted and, within 4 days, they discovered that
the scheme had a far deeper impact than initially thought. Mr
Penderis and the senior auditor of the firm approached the respondent
and she admitted to her participation in the scheme. The respondent
purported to give her full co-operation to the investigation.








  1. Windhoek Mechanised
    Accounting Services resolved to recover the losses from the
    respondent and Mr Louw. Immovable and movable properties of the
    respondent, who is married in community of property, were sold in
    execution and an amount of N$22 187.00 was recovered from her. A
    further amount of N$850000.00 was recovered from Mr Louw, leaving a
    balance of N$351 423.21 unrecovered. As a result, the respondent and
    her husband lost virtually everything they had owned and, at the
    time of the hearing of the matter, they were residing in their son’s
    house.









  1. Windhoek Mechanised
    Accounting Services sought to withdraw the charges laid against
    respondent in view of her apparent co-operation during the
    investigation but the Prosecutor-General, acting in the public
    interest,nevertheless proceeded to arraign her for trial.









  1. That crime does not
    payis apparent from the consequences which followed the uncovering
    thereof: therespondent and her family lost almost everything they
    had worked for during their lives. This much was apparent from the
    evidence of the respondent and her husband given in mitigation of
    sentence. Mr Van Wyk was very bitter about what the respondent had
    done and confirmed that it had affected their marriage
    detrimentally. Ms Eunice Annatjie Gonzo, a Clinical Psychologist who
    also testified in mitigation, paints the picture as follows:








'What also came out was the husband’s
passive anger towards his wife, which could be the reason Mrs Van Wyk
informed me (in one of our sessions) that since the case started
their love life have come to a standstill. From my observation and
the interviews conducted it seems the case has shattered the family
dynamics in the Van Wyk household amongst others.'








  1. In her view, the
    respondent had been punished enough, and she made her
    recommendations as follows:








'The … stresses seemed to have
shattered Mrs. Van Wyk’s basic coping mechanisms, leaving her
feeling alienated and distrustful. What is more, because of her
religion, she struggled with understanding why she did what she did
and how she could not have foreseen that this will destroy her family
thus hurting the same people she vowed to protect. The circumstance
of the event thus included feelings of helplessness, pain,
confusion, self-blame
and loss.







General deterrence: Mrs. Van
Wyk has realized and accepted that what she did was wrong. As said by
Mrs. Van Wyk where she aware what helping someone will do to her life
(husband, children, family, friends and community) as well as those
who trusted her (employer) she would never have done it. No penalty
is or will be greater than what she had and is still going through.
Every day, for her is a punishment i.e. looking in her family’s
accusing eyes, bringing receipts home for husband to check whether
she had really used the money for what she claimed she will use it
for, the constant whispering every time she work past a group of
people (in church, neighbourhood, gatherings), every day waking up in
her child’s house, etc. Consequently, she’s unlikely to
commit the same or any crime again.







Individual deterrence: From
observation and interviews done, it seems like the Van Wyk family
needs Mrs. Van Wyk to still raise her two young children especially
the boy and continue to look after the family as she has been doing.
The children will suffer the most were she to be sentenced to prison.







Protection from public: Looking
at her BackgroundHistory as well as Findings of her Personality
Tests, Mrs. Van Wyk is no threat to the general public. She even went
as far as asking for forgiveness from her previous employer who not
only forgave her but also testified on her behalf (see her employer’s
testimony).







Rehabilitation: In her case the
sentence will not change her behaviour nor prevent further offences
as there already is a behavioural change in Mrs. Van Wyk. During the
interviews what repeatedly came out clearly is that she had learned
from her wrongdoings and she’s unlikely to engage in such
activities again. What helps in her case is her religion, her family
and church’s support as well as the forgiveness she received
from her previous employer. She will, however, benefit from intensive
therapy to deal with the shame, self-blame and anger towards herself.







Lastly, Mrs. Van Wyk has seen and
experienced the full impact of what she had done wrong. She had and
is still punished for that. The question to ask is the objective for
punishment and more importantly what outcome we want to achieve with
the given punishment. This is a first offender, who had admitted
guilt to the offence committed and chose not to lie. It is indeed
this character trait that indicates that we are dealing with an
honest upright member of the public who made a mistake in judgment.
She engages in community outreach programmes with her church and is a
loving and caring mother to her children. With therapy I trust that
she will be ready to return to the world of work and contribute to
the economic grow of our country.'








  1. Mr Penderis,the managing
    director of the complainant who was called to testify in aggravation
    of sentence, was more of a witness for the respondent than the
    State. He sought to withdraw the case against the respondent for her
    co-operation when the fraud came to light. He testified that he
    would not like to see her in jail, if it was only up to him, he
    would have had no problem to re-employ her, but he thought it would
    be uncomfortable for her and her colleagues that are still at the
    company. For the 7 years she worked for Windhoek Mechanised
    Accounting Services, she had an impeccable record. The fraud came as
    a shock to both the management and respondent’scolleagues. He
    thought the respondent and her family had been through hell since
    the fraud came to light and that he did not think that it was in
    respondent’s character to do what she had done.









  1. The sentiments of Mr
    Penderis and the views of the Clinical Psychologist played a
    significant role in the consideration of sentence. Inasmuch as both
    Mr Penderis and the Clinical Psychologist acknowledged the
    wrongfulness of the crime the respondent committed, the evidence of
    Mr Penderis and the report of the Clinical Psychologist focussed
    predominantly on the interests of respondent and evidenced scant
    consideration of the gravity of the crime, the manner and the period
    over which it was committed and the need for the sentence imposed to
    serve as a deterrent to other would be offenders who may harbour
    similar notions– moreso because the crime of fraud tends to
    rear its ugly face all too frequently in this country.









  1. The manner in which the
    trial Judge dealt with these considerations and the degree of
    emphasis placed on the evidence of Mr Penderis and the Clinical
    Psychologist is to be gleaned from the following extracts of the
    judgment.








'[7] …That may be so, but the
fact is irrefragable that the identifiable complainant whose interest
the Court must take account of when considering the interests of an
amorphous entity, to wit, society has lost virtually nothing in
virtue of the crime. …







[8] In the same vein, it is
significant to note that in view of the complainant company’s
attitude, as testified to by Mr Penderis, it would not want to see
the accused “go to jail”. …







[9] The last to give evidence was Ms
Eunice A. Gonzo, a clinical psychologist, who had earlier filed with
the Court, a “Clinical Psychological Report: Pre-Sentencing
Report”. Resulting from the analysis she conducted on the
accused, Ms Gonzo made the following observations and
recommendations: (1) No penalty is or will be greater than what she
had gone through and is going through as a consequence of the
commission of the crime. (2) The children of the family will suffer
the most if a custodial sentence is imposed. (3) The accused is no
threat to the general public. (4) The accused has learned her lesson
from her wrongdoing and so she is unlikely to engage in such criminal
activity again. (5) The accused is an honest upright member of the
public who “made a mistake in judgment”. …







[10] The essence of Mr Penderis’s
evidence should carry a great deal of weight in favour of the
accused; for, in considering the interests of society in sentencing,
I ought to take into account the overriding interests of those who
specifically have suffered loss as result of the accused’s
action. (See The State v Gert Herman Losper Case No.:
CC11/2007 (on sentence)(unreported).)







[11] The crime for which the accused
has been convicted is a serious offence; and indeed Mr. Murorua
concedes that fact; and I agree with Mr. Marondedze that the
reprehension of the crime is brought into sharper focus; considering
the fact that the crime was committed over a period of 12 months.
This is an aggravating factor that must count against the accused.
But there are the above-mentioned weighty mitigating factors, and, in
my opinion, they should markedly blunt the seriousness of the offence
to the extent that I think I must call into play the fourth element
which a court ought to take into account when sentencing, namely, “a
measure of mercy”.







[12] … On this point, I accept
Mr. Murorua’s submission that the accused is not a danger to
the community or a threat to society. That was also the evidence of
Ms Gonzo, which stands unchallenged. From all this, I conclude that
the likelihood that she can continue to be useful to her community
cannot be ruled out.







[18] It is my opinion that the
principle of consistency of sentencing should not be taken too far as
to do away with the principle of individualization of punishment,
otherwise the system of criminal justice would be unfair and
unreasonable. The objective and relevant facts in the instant case
are not similar to the facts of any of the cases Mr. Marondedze is so
enamoured with. In particular, one must not lose sight of the three
superlatively significant distinguishing features of the instant
case, sc.: (1) all the amounts involved in the crime have been
recovered by the complainant; (2) the complainant, whose interest
must be paramount in any consideration of interests of an amorphous
entity, i.e. society, had indicated its desire to withdraw all the
charges against the complainant and actually took the necessary steps
to effectuate its desire; and (3) A representative of the complainant
gave evidence in mitigation in favour of the accused in which he
pressed on the Court that he didn’t think in the circumstances
of the case and in the personal circumstances of the accused, the
accused should receive a custodial punishment.'








  1. We heed to the
    admonition that punishment is a matter for the discretion of the
    trial court when we consider the reasoning of the Court below. S
    v Rabie
    1975(4) SA 855 (A) at 857D-E. But a Court of Appeal may
    interfere with that discretion if the trial court has not exercised
    its discretion judicially or properly. That occurs if the 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 vPillay
1977(4) SA 531 (A) at 535E-F); if a material irregularity has
occurred in the sentence proceedings (
S
v Tjiho
1991 NR 361 (HC) at
366B); if the sentence is manifestlyinappropriate 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 447H-448A (NR), at 165d-g (SACR);
S
v Petkar
1988(3) SA 571 (A)
at 574D); 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 790D-F); 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








  1. By placing such a degree
    of emphasis on the evidence of Mr Penderis and the views of the
    Clinical Psychologist and by attaching so much weight to the
    personal circumstances of the respondent, it appears to me that the
    Court belowunderemphasised the other two sentencing guidelines of
    the triad proposed in S v Zinn 1969(2) SA 537 (A) at 540. The
    need for a balanced approach was emphasised in S v Nakale and
    Others
    (No 2) 2007(2) NR 427 (HC) at 430D; S v M 2007(2)
    NR 434 (HC) at 438F-H and S v Tjiho 1991 NR 361 (HC) at
    365B-C. I must hasten to add that 'the duty to harmonise and balance
    does not imply that equal weight or value must be given to the
    different factors. Situations can arise where it is necessary
    (indeed it is often unavoidable) to emphasise one at the expense of
    the other'. Per Ackerman AJA in S v Van Wyk 1993 NR 426 (SC)
    at 448E-F (1992(1) SACR 147 (Nm) at 165i-166a). The application of
    these factors cannot be subject to rigid rules, since it is obvious
    that the dynamics are influenced by time and place and because the
    facts of each case vary ‘infinitely’. See S v
    Alexander
    2006(1) NR 1 (SCA) at 8B-D.









  1. The trial Judge
    misdirected himself on the facts when he stated that 'all the
    amounts involved in the crime have been recovered by the
    complainant'and that that the complainant (Windhoek Mechanised
    Accounting Services (Pty) Ltd)'has lost virtually nothing in virtue
    of the crime'. It is clear from the evidence that only N$872 187,00
    was recovered, leaving an outstanding balance of N$351 434,21
    unrecovered.Moreover, the bulk of the amount recovered came from Mr
    Louw. Only N$22 187,00 was recovered from the respondent. Mr
    Penderis in his own words stated:'…I think we all focused on
    getting the money back and that happened to a large degree'. He was
    asked whether there were hopes of recovering the balance
    outstanding, his reply was an emphatic 'No' and he continued to say,
    'Your Honour we in, I think, March 2005 we discussed this matter
    with our clients and in view of what Mrs Van Wyk had done, in terms
    of trying and help in assisting us, in our opinion, we decided that
    we would withdraw the charges…'. He was specifically asked
    whether the company had written off the amount of N$350 213,00 and
    his reply was 'Correct'.









  1. The trial Judge also
    misdirected himself in law when he failed to accord due weight to
    the principle of consistency in sentencing. As a general
    proposition, he correctly held that the principle should not be
    taken too far as to do away with the principle of individualisation,
    otherwise the system of criminal justice would become unfair and
    unreasonable. What was not adequately appreciated is that
    individualisation cannot be gauged in vacuum; it is best served if
    it is considered against other sentencing principles, inclusive of
    those applied in established precedents. This Court had occasion in
    the matter of The State v Gerry Wilson Munyama, Case No. SA
    47/2011 delivered on 9 December 2011 unreported, to state thus:








[12] 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,
1990(1) SACR 1 (A) 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, 2005 NR 289 (HC); SS
Terblanche, The Guide to Sentencing in South Africa, 1999 at
139).’








  1. Significant disparities
    in the sentences imposed by different courts or judicial officers on
    accused convicted for similar crimes committed under similar
    circumstances do not engender public confidence or cultivate respect
    in the even-handedness and fairness of our criminal justice system.
    Even in S v Van Rooyen and Another 1992 NR 165 (HC) at 187, a
    case on which the trial Judge appears to have relied (for other
    reasons) in arriving at the sentence imposed, the need to avoid
    disparities in sentencing was acknowledged as a sentencing
    guideline:








'In our endeavours to arrive at an
appropriate or proper sentence the Courts follow certain established
guidelines:



.



5. The equal treatment or the
co-ordination of sentences imposed for similar offences committed, so
that it cannot be said that the one person was punished more severely
or more leniently than the other.'








  1. There wereboth factual
    and legal misdirections by the trial Court in imposing the sentence
    appealed against and this Court is therefore at liberty to consider
    the imposition of an appropriate sentence afresh. As Mr Marondedze,
    counsel for the appellant correctly argued, the sentence imposed by
    the trial court is lenient, such that it induces a sense of shock;
    therefore it was inappropriate and disturbingly so. That it was
    indeed lenient was conceded by Mr Small, counsel for the respondent.
    It fails utterly to reflect the gravity of the offence and to take
    account of the prevalence of fraud in this country. It is
    irreconcilable with other precedents 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. The
    fact that Mr Penderis did not want to see the respondent go to goal
    or the views of the clinical psychologist that no penalty is or will
    be greater than what she had gone through and is going through as a
    consequence of the commission of the crime are clearly important
    considerations but they should be accorded their relative weight
    when considered together with all other mitigating and aggravating
    factors in determining an appropriate sentence and not be allowed to
    obscure other sentencing objectives.









  1. By its nature, fraud is
    aserious crime; its deleterious impact upon societies is too obvious
    to require elaboration (see S v Gerry Wilson Munyama, supra,
    para [19]; S v Sadler 2000(1) SACR 331 (SCA) at 336A-B). In
    this instance, its seriousness is aggravated both by the large
    amount involved and the period of time over which it was repeatedly
    committed in the execution of a carefully devised scheme of
    subterfuge. N$1 223 610.21 is, by any measure, a very substantial
    sum of money and the crime was perpetrated on no less that 22
    occasions between 28 October 2002 to 28 May 2004.









  1. It might well be, as the
    trial Court found on the unchallenged evidence of the clinical
    psychologist, that the respondent was no longer a danger or threat
    to society, but it should have been careful not to step into the
    trap of undue leniency when it comes to the imposition of sentences
    for a so-called 'white collar crime'. In S v Sadler, supra, at
    335g – 336a Marais JA, whose sentiments I endorse, put it as
    follows:








'[11]… So called ’white-collar’
crime has, I regret to have to say, often been visited in South
African courts with penalties which are calculated to make the game
seem worth the candle. Justifications often advanced for such
inadequate penalties are the classification of ’white-collar’
crime as non-violent crime and its perpetrators (where they are first
offenders) as not truly being ‘criminals’ or ’prison
material’ by reason of their ostensibly respectable histories
and backgrounds. Empty generalisations of that kind are of no help in
assessing appropriate sentences for ’white-collar’ crime.
Their premise is that prison is only a place for those who commit
crimes of violence and that it is not a place for people from
’respectable’ backgrounds even if their dishonesty has
caused substantial loss, was resorted to for no other reason than
self-enrichment, and entailed gross breaches of trust.







[12] These are heresies. Nothing will
be gained by lending credence to them. Quitethe contrary. The
impression that crime of that kind is not regarded by the courts as
seriously beyond the pale and will probably not be visited with
rigorous punishment will be fostered and more will be tempted to
indulge in it.'








  1. The respondent did not
    commit the crimes out of personal need. We are also not persuaded
    that she had done so to help a friend who apparently needed money.
    If she committed the crime for purely altruistic reasons, it does
    not explain why she required her 'needy' friend to repay her half of
    the illegitimate proceeds of their fraudulent scheme. Moreover, she
    did not use the money received from him to address any pressing
    personal needs but rather to finance lavish holidays and purchases.
    In my view, the conclusion that her participation in the commission
    of the crimes was mainly motivated by personal greed is
    unavoidable.She earned more money than her husband from her
    employment. She was appointed to a position of trust where she
    transacted millions of dollars on behalf of her employer’s
    principals. She betrayed the people who pinned their trust on her
    and, on all accounts, had treated her exceptionally well. Her
    husband, for example, testified that, when she travelled to Holland
    to visit her sister, Mr Penderis, the Managing Director of her then
    employer, gratuitously purchased her the flight ticket.









  1. The misdirections
    committed by the trial Court are of substantial relevance to the
    determination of an appropriate sentence and in the light thereof
    this Court is at liberty to consider the imposition of an
    appropriate sentence afresh. (S v Pillay, supra, at 535-E-F;
    S v Fazzie 1964(4) SA 673 (AD) at 684B–C; S v Pieter
    Johan Myburgh
    (SC), Case No. SA 21/2001 (unreported). The
    gravity of the crime and the interests of society were unduly
    underplayed. The misdirectionsare of such a nature, degree or
    seriousness that they showed inferentially, if not directly, that
    the sentencing discretion entrusted to the trial Court was
    improperly exercised. I hold the view that the sentence which this
    Court would have imposed as a Court of first instance differs so
    significantly from which the Court below had imposed.









  1. I am satisfied after the
    consideration of all the evidence,that the circumstances of this
    case justifythe imposition of direct imprisonment to adequately meet
    the objectives of sentencing. The disturbingly lenient sentence
    imposed by the trial Judge cannot be left undisturbed and falls to
    be set aside.









  1. In considering the
    appropriate sentence, I am particularly mindful that respondent and
    her family have lost almost everything that they had worked for thus
    far. I also considered the evidence of Mr Penderis and the clinical
    psychologist that expounded on her otherwise good character and the
    limited need for rehabilitation. As Marais JA in S v Sadler,
    supra,
    at 337d correctly put it 'one cannot but feel deeply for
    them. Regrettably, one cannot allow one’s sympathy for them to
    deter one from imposing the kind of sentence dictated by the
    interests of justice and society'.









  1. In the result I make the
    following order.









  1. The sentence imposed by
    the High Court on 5 June 2009 is set asideand the following sentence
    is substituted:








'The accused’s convictions are
taken together for purposes of sentence and she is sentenced to ten
(10) years imprisonment of which five (5) years imprisonment is
suspended for a period of five years on condition that the accused is
not convicted of the crimes of fraud or theft committed during the
period of suspension'.








  1. The fine of twenty
    thousand Namibian Dollars (N$20 000,00) paid in satisfaction of the
    sentence is ordered refundable to the respondent.












__________________



MAINGA JA











__________________



SHIVUTE CJ







___________________



MARITZ JA


































Counsel
on behalf of the appellant:



Mr
EE Marondedze



Instructed
by:



Prosecutor-General











Counsel
on behalf of the respondent:



Mr
AJB Small



Instructed
by:



Directorate
of Legal Aid
















1See
also S v Alexander, (supra) at 5A-E; S v Gaseb and Others
2000 NR 139 (SC) at 167G-I; S v Shikunga and Others 1997 NR
156 (SC) at 173B-E.