SUMMARY
Case No.: CC 27/2007
IN THE HIGH COURT OF NAMIBIA
In the matter between
THE STATE
v
JOHN LEON BEUKES
PARKER, J
2008 May 9
____________________________________________________________________
Mines and Minerals –
Accused convicted of possession of diamonds in terms
of s. 30 (1) of the Diamonds Act 1999 (Act No. 13 of 1999) – The fact that the
Parliament sees offence in serious light must be taken into account by the Court in
gauging seriousness of offence – While interest of society is important factor in
sentencing, justice which this Court must render is not always served by appeasing the
populace – In considering interests of society evidence of accused’s close corporation
employing some 53 employees most of whom are married and have minor children
taken into account – Additionally, the fact that accused is first offender ought to carry
great weight in absence of negative factors – Court ought to strike a balance between
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principles of equality and consistency of treatment on the one hand and
individualization on the other – On the facts and in the circumstances of a particular
case suspended sentence is appropriate as it has a very deterrent effect – In present
case Court finding on the facts and circumstances of the case and on the authorities
unsuspended direct imprisonment not appropriate and just.
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Case No.: CC 27/2007
IN THE HIGH COURT OF NAMIBIA
In the matter between
THE STATE
Versus
JOHN LEON BEUKES
CORAM:
PARKER, J
Heard on:
2008 April 29 – 30
Delivered on:
2008 May 9
__________________________________________________________________
JUDGMENT: SENTENCE
PARKER, J.:
[1]
The facts of this case in which the accused was convicted of possession of
diamonds in contravention of s. 30 {1} of the Diamonds Act, 1999 (Act No. 13 of
1999) appear in the judgment delivered on 6 May 2008. It now remains to sentence
the accused. According to s. 30 (2) a person convicted of the offence is liable to a
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fine not exceeding N$1,000,000.00 or to imprisonment for a period not exceeding 20
years or to both.
[2]
I have taken into account in sentencing the triad consisting of the crime, the
offender and the interests of society. I must also have regard to the main purposes of
punishment, namely, deterrent, prevention and retribution. Holmes, JA advises that to
the triad should be added a fourth item, which is sometimes overlooked, namely, a
measure of mercy. (S v Khumalo 1973 (3) SA 697 (A).)
[3]
I respectfully agree with Mr. Muvirimi, counsel for the State, that the crime
the accused has been convicted of is a serious crime; this is evidenced by the statutory
penal sanction. It is, therefore, axiomatic that the Parliament sees this crime in a very
serious light, and so, in my view, the Courts should do the same. (See S v Kramer
and others 1990 NR 49.) I also agree with Mr. Muvirimi that the interests of society
demand that the offence should be punished severely. Nevertheless, I also agree with
Mr. Hinda in his submission that the Court should not mete out a sentence just to
please the public. The Court must take into account all the facts of the present case.
Indeed, a society consumed by outrage easily confuses punishment with revenge. In
my view, justice, which this Court must render, is not always served by appeasing the
populace.
[4]
In considering the interest of society and looking at the particular facts of the
present case, I think – and I respectfully agree with Mr. Hinda – the interests of those
employees employed by the acused’s Close Corporation and their families must not
be lost sight of: The Close Corporation employs some 53 employees; about 50% of
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that number are married, and up to about 75% have dependant children. I accept that
if the accused is sent to prison, that would be the end of the Close Corporation. If that
happens the economic and social consequences for the accused and his employees and
their families are too ghastly to contemplate.
[5]
The accused has no previous conviction, so he is a first offender in the eyes of
law. This, in my opinion, is probably the most important factor relating to the
accused’s personal circumstances, and in the absence of any negative factors, it is a
factor to which a great weight should be given. (S v Da Costa and another 1990 NR
149, S v Van Rooyen and another 1992 NR 165). In my opinion, the fact that the
accused decided to remain silent in pursuit of a right guaranteed to him by the
Namibian Constitution must not count against him in any marked measure in these
sentencing proceedings. The authorities I reviewed in my judgment on conviction
only take such silence into account in determining the guilt of the accused. (S v Van
Wyk 1993 NR 426 (SC); S v Katari 2006 (1) NR 2005). It may be added that all the
diamonds were recovered.
[6]
I accept the submissions by both counsel – and both of them were ad idem on
this aspect – that in sentencing, the Court ought to strike a balance between two
important principles, namely, equality and consistency of treatment on the one hand
and individualization on the other. As I understand it, ‘individualization’ relates to
the personal circumstances of the ‘individual’ accused person. I have considered that
already. ‘Equality and consistency’ of treatment of offenders, as I see the term,
means punishment metes out to different offenders convicted of the same offence
must not be so incongruous as to attract the stamp of unfairness and unreasonableness.
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The Supreme Court put it succinctly in S v Ndikwetepo and others 1993 NR 319 that
in sentencing, the Court ought to be guided by sentences imposed by the Court in
similar cases; of course, due regard being had to factual differences.
[7]
In this connection, Mr. Muvirimi referred to me The State v Franciscus Feris
Case No.: CC 119/94 to support his argument that the crime merits direct
imprisonment. The accused in the former case of Franciscus Feris and the present
case are not similar. The accused in the former case was convicted by this Court in
terms of s. 30 (1) of Proclamation 17 of 1939 which reads:
Any servant who shall steal any diamonds the property of or in the lawful
possession of his master or who shall conceal or retain with intent to convert
the same to his own use, any diamonds, or who shall attempt to commit any of
the said offences, or who shall be accessory or accomplice in the commission
of any of the said offences, shall be guilty of an offence and liable on
conviction to the penalties prescribed in section twenty-eight.
The accused in this case has been convicted by possession in terms of s. 30 (1) of Act
No. 13 of 1999.
[8]
In S v Kramer and others 1990 NR 49 where the conviction was for
possession (through police entrapment) and where the value of the uncut or
unpolished diamonds was N$/R374,000.00, this Court (sitting as a full Bench),
ordered the following appropriate sentence: “Payment of a fine of N$/R20,000.00,
alternatively imprisonment for a period of three years, and, in addition, imprisonment
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for a period of five years, suspended for five years, on condition that the accused is
not convicted during the period of suspension of an offence of contravening s. 28 of
Proc. 17 of 1939.”
[9]
In my view a heavy fine can also be a strong deterrent, coupled with
imprisonment wholly suspended in this category of offence, viz. possession of
unpolished diamonds, and in the case of a first offender. (Kramer, supra, 63B). In
this connection, as I accepted in Angula Immanuel Kashamane v The State Case No.:
42/2005 at p18, suspended sentence has two main beneficial effects: it prevents the
offender from going to gaol, and the offender has the sentence hanging over him. If
he behaves himself he will not have to serve the sentence. On the other hand, if he
does not behave himself, he will have to serve it. “That there is a very deterrent effect
cannot be doubted.” (Persadh v R 1944 NPD 357 at 358; see also S v Goroseb 1990
NR 308.)
[10]
I have considered the triad in relation to the facts of this case. I have also
taken into account the purpose of punishment. Above all, I have kept in view the
authorities I have referred to above and submissions by counsel. Having done all that,
I come to the inexorable conclusion that removing the accused from society and
putting him in prison will not be just and reasonable. In the exercise of my discretion,
therefore, I conclude that the following sentence is appropriate; and I so pass:
Payment of a fine of N$100,000.oo or four years’ imprisonment, and in
addition, imprisonment for four years, suspended for five years, on condition
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tha the accused is not convicted of offence of contravening s. 30 (1) of Act
No. 13 of 1999, committed during period of suspension.
[11]
I further order that the 149 unpolished diamonds with a mass of 219.89 carats
be forfeited to the State.
____________________
PARKER, J
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ON BEHALF OF THE STATE:
Adv. A. Muvirimi
Instructed by:
The Office of the Prosecutor-General
ON BEHALF OF THE ACCUSED:
Adv. G. Hinda
Instructed by:
Mr. G. Narib
C. J. Le Roux & Associates