CASE NO. CC 30/2007
IN THE HIGH COURT OF NAMIBIA
In the matter between:
THE STATE
and
JAMES VILHO AUALA
CORAM:
LIEBENBERG, A.J.
Heard on:
2008.06.02, 03
Delivered on: 2008.06.05
_______________________________________________________________
SENTENCE
LIEBENBERG, A.J.:
[1]
This Court has already found the
accused guilty on the following charges: Theft of 28 unpolished
diamonds valued at N$438 220.92; Robbery; and Escaping
before being locked up. The accused’s conviction followed after a
trial in which he pleaded not guilty on the charges of theft and
robbery, but guilty on escaping.
2
[2]
In order for this Court to determine a just and suitable
sentence to impose upon the accused today, the Court must take
into consideration the so-called triad of factors namely the
accused’s personal circumstances, the crimes committed and the
interests of society.
See: R v Karg, 1961 (1) SA 231 (AD); S v
Zinn, 1969 (2) SA 537 (AD).
[3]
It has also been recognised by our courts that punishment
should “be blended with a measure of mercy according to the
circumstances”. S v Rabie, 1975 (4) SA 855 (AD) at 862 G.
In assessing the aforementioned factors the Court need not give
equal weight to each factor, as situations may arise where it is
necessary to emphasize one at the expense of the other. This will
largely depend on the particular circumstances of the accused
person as well as the seriousness of the crime and the
circumstances surrounding it. S v van Wyk, 1993 NR 426 (HC)
at 448 D-E.
Although mindful of the fact that these factors need not be given
equal weight, the Court must however guard against over or
under emphasizing any one of them.
3
[4]
Personal circumstances of the accused: Presently he is 32
years of age, single and the father of a girl aged 4 years, who
resides with her mother at Oranjemund. They were cohabiting at
the time of the accused’s arrest and after he was released on
bail, he eventually came to Windhoek in search of new
employment, and in 2007 he was offered employment with
Windhoek Machinen Fabrik (WMF), a company involved in the
manufacturing of military vehicles and owned by the Namibian
Defence Force. He is currently employed with them as a diesel
mechanic since April 2007, and from the evidence given by Mr
Shihama, the Finance and Administrative manager of WMF, the
accused is regarded as a valued worker for the company. In fact,
the accused was so highly rated, that according to Mr Shihama,
the accused’s conviction on charges of theft, robbery and
escaping, will not affect his employment with them.
When
pressed to state with whom the final decision as regards the
accused’s
continued
employment
with
the
company
lies,
Shihama said the managing director and himself would need to
take that decision. It then seems that Mr Shihama’s evidence on
the continued employment of the accused with WMF is
somewhat
presumptuous
and
carries
a
high
degree
of
uncertainty. Not too much weight therefor, should be attributed
4
to Mr Shihama’s evidence other than WMF being satisfied with
the accused’s work performance over the past one year.
The accused matriculated in Windhoek in 1995, whereafter he
returned to his parents at Oranjemund, and in the following
year, he filled a temporary position as a cleaner with Namdeb,
(formerly CDM) until 1997.
In 1997 the accused started his
apprenticeship as diesel mechanic with Namdeb, qualified in
2001 and was permanently appointed two years later, earning
approximately N$8 000 per month. He resigned as a result of his
arrest, whereafter he sought new employment for two years until
he was appointed by WMF in 2007.
[5]
The accused testified that he wish he could turn back the
clock to where none of this had happened. I believe that one of
the reasons would be, that he longs for the prosperity he enjoyed
while working for Namdeb, who provided an opportunity to him,
not only to qualify as an artisan, but also for appointing him
permanently and from which he earned a good salary.
The
accused was not prepared to say why he stole the diamonds and
what he intended doing with these. In the absence of anything
pointing in the opposite direction, it must be assumed that the
accused’s actions were aimed at enriching himself. He was not
5
prepared, like thousands of other hard working citizens in this
country,
to
make
an
honest
living
and
became
greedy.
Unfortunately for the accused, it comes with a price.
[6]
In his testimony in mitigation the accused said that he
regrets what he has done and promised never to transgress
again.
Probably in order to lodge an appeal against his
conviction, the accused was unwilling to answer questions
relating to the theft of the diamonds in question.
It seems appropriate to once again quote what Maritz J (as he
then was) said in the State v Willem Swartz and Others, Case no.
CC 08/89 (unreported) at p. 29:
“Real remorse for an injustice done to another must come from the
heart and cannot be displaced by a desire to rather attempt in
winning your freedom in an appeal. The sooner after the commission
of a crime remorse is expressed and reparation steps are undertaken,
the more genuine the expression thereof will fall on the ears of the
Court.
It requires of a suspect not only to express it, but also to
conduct himself in such a manner that his remorse is evident from his
actions”.
6
It has also been said that penitence must be sincere and that the
accused must take the Court fully into his confidence. Unless
the accused opens up and allows the Court to consider the
sincerity of his remorse, it will be difficult, if not impossible, to
give sufficient weight to the accused’s claim of having remorse.
In the present instance it carries very little weight due to the fact
that, to this day, the accused remains unwilling to accept legal
and moral responsibility for his actions and prefers seeing
himself “as the unfortunate victim of circumstances, who, as a
result of such circumstances landed (him) in the present disaster”.
(S v Eadie (2) 2001 (1) SACR 185 (CPD) at 188 b)
I accordingly give little weight to the accused’s expression of
remorse for what he has done.
[7]
Although the Court is sympathetic towards the accused’s
fiancé, who is now left to raise their young daughter without the
accused’s presence, one cannot ignore the fact that the accused
only has himself to blame for this unfortunate situation and he
must take responsibility for his actions. Not only the accused,
but also his family suffered hardship and distress since his
arrest, and might still, for some time to come.
The Court
however, is satisfied that those persons, partly dependent on the
7
accused, like his child and minor brothers, are not left desolate
and without any means, as his fiancé and parents are there to
support them.
[8]
The fact that the accused is a first offender, is an important
factor in determining sentence and particularly in deciding
whether a first offender should be sent to prison or not. There is
no rule that a first offender ought not to be sent to gaol as for
serious
crimes,
punishment.
imprisonment
is
often
the
only
suitable
It is common cause that all three offences, for
which the accused stand convicted, are serious, and it is not
uncommon that direct imprisonment is imposed in respect of
each, even to a first offender.
[9]
all
The crimes committed by the accused, as mentioned, are
very
serious,
especially
when
regard
is
had
to
the
circumstances in which it was committed. With his appointment
at Namdeb the accused was given an induction course during
which he familiarised himself with Namdeb’s mining policies,
especially relating to theft of diamonds. He thereafter signed a
declaration to that effect.
8
In an affidavit deposed to by Peter William Shout, the security
manager employed by Namdeb, and which was handed in to
evidence by agreement, it is stated that Namdeb conducts a
continuous campaign amongst its employees and broader
community (at Oranjemund) to educate its people about the
wrongs of diamond theft and this is done by means of posters
and
signboards,
newsletter
articles,
internal
briefs
and
worker/management forums. It further states that the product
protection philosophy applied at Namdeb is an approach,
designed to eliminate human intervention throughout the mining
and recovering process and thereby to protect the source.
The accused, undoubtedly, was acquainted with the mine’s
policies and the consequences of any transgression,
but
notwithstanding, was not deterred by any of it and decided to try
his luck. I regard this as an aggravating factor.
[10] The same must be said about the accused’s conduct after
he had been arrested, when he decided to worsen matters by
robbing Inspector Louw of her handbag, most probably, to regain
possession of the diamonds and then managed to escape. I will
give the accused the benefit of accepting that anguish has
probably taken hold of him, explaining his irrational behaviour,
9
but it does not excuse his actions. He might have decided on the
spur of the moment to snatch the handbag, but he was open
minded enough to first lock the door from the inside, preventing
any intervention from the officers outside the room.
[11] The planning of a crime is generally regarded as an
aggravating factor and in the present case there is sufficient
evidence to find that the accused planned his actions well in
advance. It was stated on behalf of the accused that he tested
the security and x-ray process previously and succeeded in
passing it with an (unknown) object in his possession, without
being caught. This should have afforded the accused sufficient
time to reflect and come to his senses.
[12] Despite the security measures in place at Namdeb to curb
theft of diamonds from its mining area, the accused managed to
find a way to by-pass the system.
In his statement, Mr Shout explains that since 1988 Namdeb has
spent N$300 million in the introduction of technology based
security systems, such as five Scannex low-dose personnel x-ray
search units; the establishment of so-called “Red areas” at
production sites; CCTV surveillance systems; etc.
He further
10
explains that as a result of these interventions there has been a
significant decline in the level of diamond theft since 1988, but
notwithstanding, diamond theft continues to occur throughout
Namdeb’s operations to the extent that during 2001-2006
unpolished diamonds stolen from Namdeb’s fields, with a value
in excess of N$15 million, have been recovered.
magnitude
must
have
a
direct
impact
upon
Theft of this
the
mine’s
profitability and sustainability which simultaneously, deprives
the fiscus of revenue.
This confirms the concern raised by O’Linn J, already in 1990 in
S v Strauss, 1990 NR 71 (HC) at 79 when he stated:
“The contribution of taxes to the treasury, the contribution to job
creation and job opportunities which a company such as CDM
(Namdeb) and others in the mining industry contribute to the country
is more important than ever before. The State will rely more and more
on the income which the State and the community derive from the
mining industry.
Consequently, there should be more emphasis,
rather than less, on the fact that theft of diamonds amounts to
economic sabotage”.
11
[13] In the appeal matter of Matheus Albertus Morkel v The
State, a full bench decision delivered 1994.02.14 (unreported), it
was said that the reasons why theft of unpolished diamonds by
an employee is invariably viewed as serious, are two-fold,
namely, the relationship between an employer and employee is
based on trust and by stealing from his employer, the employee
takes advantage of the position he enjoys.
Secondly, that
diamond mining plays an important role in the national economy
of this country.
As regards the first mentioned, it is for that reason why the
employer is entitled to look to the courts to impose deterrent
sentences.
“A sentence aimed not so much at deterring the
offending employee who is before Court because, more often than
not, his opportunity to abuse the trust reposed in him again will
not exist but at deterring other employees who may be of like
dishonest mind”.(my empahises)
Judging from Mr Shout’s
statement, there are always those who are willing to take the risk
– like the accused – and they need to be deterred.
It does not mean that the accused before Court must be singled
out and made the scapegoat for all incidents of theft of
unpolished diamonds at Namdeb. What is meant, is that in the
12
circumstances, a sentence of general deterrence is called for.
[14] The principles of individualisation and uniformity are wellestablished in our law as regards sentencing. Suffice to say that:
“It is therefore necessary that the Courts apply more or less the same
guidelines regarding the imposition of sentence and that these be
balanced against the principle of individualisation of the particular
accused and offence”. (S v Strauss) (supra).
At the same time the Courts must guard against a rule that may
be built up out of a series of sentences, and that it would then be
irregular for a Court to depart from these as was stated in R v
Karg, 1961 (2) SA 231 (A) at 236.
A presiding officer has a discretion, which must be judicially
exercised when it comes to sentencing and it must always be
borne in mind that each case must be considered on its own
facts and circumstances.
[15] In the past, this Court, in a number of cases, applied a
general sentencing policy concerning cases related to diamond
theft.
In S v Strauss (supra), O’Linn J listed a total of 19 unreported
decisions (of this Court) to serve as future guideline and to
13
explain the principles applicable in those cases.
These cases
covered the period 31.03.88 until 22.02.90 and the value of the
diamonds involved ranged between N$59 000 and N$759 000.
In the majority of these cases (13) fines, coupled with direct
imprisonment and partly suspended, were imposed while direct
imprisonment was imposed in 5 of the cases. Only in respect of
one case (S v Uzambala) was a fine imposed coupled with
imprisonment, which imprisonment was wholly suspended. The
value of the diamonds in that case was N$62 300.
This catalogue of cases clearly shows the approach of the Courts
in the past.
[16] In the Morkel case (supra) the Court went through a similar
exercise and took note of five sentences imposed by the Courts
between 20.08.91 and 4.08.92 in which direct imprisonment,
partly suspended, was imposed.
The Court noted that the
pattern which appeared to have emerged from these sentences, is
one where the Courts not only saw it fit to impose custodial
sentences, but as the value of the diamonds stolen increased, so
did the length of the term of imprisonment. In other words, the
one was in relation to the other. But, it was also remarked that
where the offender makes no profit, that at some point, the value
14
of the goods stolen diminishes in significance. This approach is
similar to that followed in cases of theft and fraud involving large
amounts of money.
[17] Mr Muluti, relying on the case of the State v Gert Johannes
Feris delivered on 2000.11.22 (unreported) submitted that the
present trend in this jurisdiction is to impose a fine, with an
alternative term of imprisonment, coupled with an additional
prison
term,
the
latter
wholly
suspended
on
the
usual
conditions. The core of the submission derives from what was
said by the learned judge Silungwe, J after referring to sentences
previously imposed by this Court in 13 similar cases. At p8 the
following is said:
“An analysis of the cases cited above shows that towards the early
nineties, direct custodial sentences were the order of the day, largely
due to the prevalence of the crime. In the course of time, however, the
Court inclined more and more towards the imposition of fines and
alternative terms of imprisonment, coupled with additional sentences
of imprisonment wholly suspended conditionally. The reason for this
approach is presumably that much better and more effective security
measures have since been established at a substantial cost of N$30
15
million per annum, resulting in the curbing of the incidence of
diamond smuggling and/or thefts”.
The value of the diamonds stolen in that case was N$197 450.46
and the accused not only pleaded guilty to the charge of theft,
but also explained the difficult circumstances he found himself
in when committing the crime.
[18] In a subsequent matter of the State v Bernado Ndiweda
delivered 2004.06.24 (unreported) the same Court convicted the
accused, following his plea of guilty of theft of diamonds valued
at more than N$2,2 million, and sentenced the accused to 7
years imprisonment, 3 years of which were suspended on the
usual conditions. Before sentencing the accused, the Court had
regard to the Strauss case and the catalogue of cases referred to
as well as the Feris-case.
Specific reference was made to the
gravity of the crime committed and particularly its prevalence.
The Court clearly gave weight to the evidence of Mr Shout, who
testified on the money invested in a security regime designed to
protect Namdeb from thefts and the increase of cases of theft of
diamonds.
16
[19] The affidavit deposed to by Mr Shout, which is before
Court, confirms his testimony in the Ndiweda-case about the
upgrading of the security system at Namdeb. This is a
continuous process and yet, between 2001-2006, unpolished
diamonds stolen, to the value of N$15 million, had been
recovered.
Thus, it does not appear to me that it can be said
that the improvement and upgrading of security systems at
Namdeb had resulted in a significant drop in the number of
cases of diamond theft as such. It rather seems to have resulted
in a higher percentage of stolen diamonds recovered by Namdeb,
which indicates that there has been an increase in the incidence
of crime related to theft or unlawful possession of diamonds.
This is regarded as an aggravating factor.
[20] The Court has given serious consideration to the request to
impose a fine, but it seems to me that the gravity of the crime
committed; the circumstances surrounding the commission of
theft as well as the other serious crimes; the high value of the
diamonds stolen; and the interests of society, by far outweigh
your personal circumstances. A sentence of deterrence, specific
as well as general, is called for and it is incumbent upon this
Court today, to send out a clear message to all potential
17
criminals of your type, that theft of unpolished diamonds carries
the risk of a custodial sentence.
[21] In determining what a suitable sentence will be and
mindful of the principle of uniformity and the guidelines set in
similar cases, while at the same time bearing in mind the
accused’s particular circumstances, it seems appropriate to
afford the accused the opportunity of paying a fine, whereby the
serving of a substantial part of the custodial sentence can be
averted.
[22] In sentencing the accused on the robbery charge, the Court
finds mitigation in the fact that the force applied to the person of
Inspector Louw, was not severe and that no injuries were
sustained as a result thereof. The complainant also suffered no
loss. The crime itself however, remains very serious, especially
when viewed against the background where the accused was
under arrest and about to be charged for a serious offence he
had just committed. As mentioned earlier, it also required some
planning, albeit shortly before committing the robbery.
18
[23] With regard to the charge of escaping in contravention of
s.51(1) of the Criminal Procedure Act, the penalty is one of
imprisonment for a period not exceeding two years (s.77(1)(b)(a)
of the Prisons Act, No. 17 of 1998). This offence is equally viewed
to be serious and does not provide for the imposition of a fine. I
will take into account that the accused did not succeed in
making his escape good and was apprehended soon thereafter.
[24] Where an accused is sentenced in respect of related
offences, the accepted practice is that the sentencing Court
should then have regard to the cumulative effect of the sentences
imposed, and by so doing, to ensure that the total sentence is
not disproportionate to the accused person’s blameworthiness in
relation to the offences for which he is to be sentenced. (See: S v
Coales 1995 (1) SACR 33 (A) at 36 e-f; S v Mhlakaza and Another
1997 (1) SACR 515 (SCA) at 523 g-h).
This approach is
especially apposite where the offences are closely related, such
as the robbery and escaping in the present case.
[25] Lastly, given the accused’s circumstances and the absence
of a real possibility of the accused ever in future committing theft
19
of unpolished diamonds, I do not deem it appropriate to impose a
partly suspended sentence.
[26] Accordingly, you are sentenced as follows:
Count 1 – N$50 000 or 3 years imprisonment plus 5 years
imprisonment.
Count 2 – Two years imprisonment.
Count 4 – 1 year imprisonment.
In terms of s 280 (2) Act 51 of 1977 it is ordered that half the
sentence of count 2 and the whole of count 4 to run concurrently
with count 1.
LIEBENBERG, A.J.
20
ON BEHALF OF THE STATE
Instructed by:
ON BEHALF OF DEFENCE
Instructed by:
Mr Sibeya
Office of the Prosecutor-General
Mr Muluti
Directorate of Legal Aid