Court name
High Court
Case name
Kluwoski v S
Media neutral citation
[2012] NAHC 265
Judge
Ndauendapo J
Shivute J













REPORTABLE








REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








JUDGMENT



Case no: CA 16/2012








NOMAENICIA ANGELINE
KLUWOSKI
......................................................APPELLANT



and



THE STATE
..............................................................................................
RESPONDENT








Neutral citation:
Kluwoski v State (CA 16/2012) [2012]



NAHCMD 24 (15 October
2012)








Coram: SHIVUTE, J
and NDAUENDAPO J



Heard: 30 July
2012



Delivered: 15
October 2012








Flynote: Appeal -
against sentence - Imposition - Factors to be taken into account -
offer of reimbursement to complainant - ignored - position of trust -
aggravating factor - first offender - factor to be considered - but
not entitlement to escape term of imprisonment - breadwinner should
have considered family before resorting to crime - when is an appeal
court entitled to interfere - court failed to exercise its discretion
judiciously.








Summary: Appeal -
against sentence - Imposition of: - Factors to be taken into account.
- The fact that the appellant has offered to reimburse the
complainant is a factor to be taken into account when sentencing -
ignorance of it irregularity - position of trust - first offender -
The fact that the offender was in position of trust and used her
privilege to abuse the trust is an aggravating factor. Being a first
offender is a factor to be considered but does not entitle her to
escape a term of imprisonment. Where such offender breadwinner - she
should have considered that by resorting to crime she was placing her
family well being in jeopardy - When an appeal court will interfere -
when the trial court has misdirected itself on the facts or the law-
an irregularity in the proceedings has taken place - The trial court
failed to take into account material facts or overemphasized the
importance of other facts; - The sentence imposed is startlingly
inappropriate, induces a sense of shock or a striking disparity
exists between the sentence imposed by the trial court and that which
would have been imposed by the court of appeal - The fact that the
court a quo ignored the appellant’s offer to reimburse
the complainant is an irregularity which amounts to a misdirection -
the sentence of 4 years of which 1 year is suspended for 5 years on
certain conditions to a first offender who pleaded guilty and offered
to reimburse complainant is startlingly inappropriate and induces a
sense of shock.



Appellant established
justifiable grounds for court to interfere because the court a quo
has failed to exercise its discretion judiciously.










ORDER










The appeal against
sentence succeeds.








The sentence imposed by
the learned magistrate is set aside and substituted with the sentence
of 2 Years’ imprisonment of which 1 year is suspended for 5
years on condition that the accused is not convicted of theft
committed during the period of suspension. The sentence is antedated
to 27 February 2012.










JUDGMENT










SHIVUTE J (NDAUENDAPO J
concurring):








[1] The appellant was
convicted of theft in the magistrate’s Court Windhoek upon her
own plea of guilty. She stole cash in the amount of N$31 656,64 from
her employer. She was sentenced to a term of imprisonment of four
years of which one year was suspended for five years on certain
conditions. She now appeals against sentence.








[2] The appellant is
represented by Mr Isaacks and Mr Kumalo appears on behalf of the
Respondent.








[3] The appellant’s
grounds of appeal as articulated by her legal representative are
that:



The sentence imposed by
the court is shockingly inappropriate, in that it induces a sense of
shock; the court erred in overemphasising the nature of the offence
and the deterrent effect of the sentence and in doing so the court
failed to individualise the sentencing of the appellant; and
attaching too little weight to the mitigating factors.








[4] It is trite that
sentencing is a matter for the discretion of the trial court and a
court of appeal will only interfere with the sentence where –



(a) The trial court has
misdirected itself on the facts or law;








(b) An irregularity which
was material occurred during the sentence proceedings;








(c) The trial court
failed to take into account material facts or overemphasized the
importance of other facts;








(d) The sentence imposed
is startlingly inappropriate, induces a sense of shock and where
there is a striking disparity between the sentence imposed by the
trial court and that which would have been imposed by the court of
appeal.



S v Tjiho 1990 NR
361 at 366



Both counsel have
referred this court to the guidelines when a Court of appeal may
interfere with the sentence as stated above.








[5] The appellant was
employed as an account clerk by the complainant hence she stole from
her employer. She gained a reasonable salary of N$4000 per month. She
stole the money from March 2011 till February 2012. She is 24 years
old; single, mother of a son of age 2. She is the only breadwinner;
first offender; and stole because she had financial problems.
Although she was unemployed, she offered to pay back the money in two
installments or to pay a fine of N$10 000. The court chose to ignore
it.








[6] It is trite that an
offer to reimburse the victim of a crime is a factor which the court
should have considered when imposing sentence.



S v Clay 1996 NR
(NAHC) 184 at 186 F.








[7] The learned
magistrate emphasized the seriousness of the offence as well as the
prevalence of the offence and the fact that the accused stole from
her employer which in my view she is entitled to do so. However, she
paid lip service to the fact that the appellant was a first offender
who pleaded guilty and offered to reimburse the complainant.








[8] In my view the fact
that the court a quo ignored the appellant’s offer to
reimburse the complainant and that she is a first offender who
pleaded guilty to the charge and did not waste the court’s time
the appellant has established justifiable grounds for me to interfere
with the sentence imposed by the court a quo because it failed
to exercise its discretion judiciously. The sentence of 4 years
imprisonment of which 1 year is suspended for five years in the
circumstances appears to me to be severe, inappropriate and it
induces a sense of shock.








[9] Having said that, the
sentence imposed is startlingly inappropriate I am entitled to
consider the sentence afresh. I do not loose sight of the fact that
the appellant was in a position of trust and has used her privilege
position to steal from her employer and abused the trust. In a
circumstance like this one although the appellant is a first offender
she has been engaged in a concerted plan to dispossess her employer.
Again the fact that she is a sole breadwinner with a minor child of 2
years, she could have considered that by resorting to crime she was
placing the well being of her family in jeopardy.








[10] Having considered
the above factors, I am of the opinion that the term of imprisonment
is inevitable, to mark publicly the gravity of the offence to send a
message to would be offenders.













[11] In the result the
following order is made.








The appeal against
sentence succeeds.








The sentence imposed by
the learned magistrate is set aside and substituted with the sentence
of 2 Years’ imprisonment of which 1 year is suspended for 5
years on condition that the accused is not convicted of theft
committed during the period of suspension. The sentence is antedated
to 27 February 2012.























----------------------------------



N N Shivute



Judge




























----------------------------------



G N Ndauendapo



Judge











































APPEARANCES








APPELLANT : Mr Isaacks



Of Isaacks and Benz Inc.,
Windhoek








RESPONDENT: Mr Kumalo



Of
Office of the Prosecutor-General Windhoek.