After theft comes jail, court warns

A JAIL term remains the all but inevitable consequence that will befall people convicted of stealing from their employer in Namibia, is the warning contained in an appeal judgement handed down in the High Court in Windhoek last week.

The judgement, which was handed down on Wednesday, is one of the last remaining outstanding judgements to be delivered by retired Acting Judge Simpson Mtambanengwe, whose tenure as a High Court Judge finally ended at the close of 2006. In the judgement, Acting Judge Mtambanengwe dealt with a case in which the State appealed against the sentence that a young man received in the Swakopmund Magistrate’s Court after he had admitted stealing more than N$52 000 from his employer.John Henry Babu was a 23-year-old, unmarried first offender when he pleaded guilty in the Swakopmund Magistrate’s Court to a charge of theft on October 14 2004.He admitted that he had stolen N$52 727,26 from his employer, Woermann Brock, at Swakopmund on May 31 2004.According to the brief court record of his trial, his only explanation for the theft was this statement: “I needed money.”Swakopmund Magistrate Gibson Imbili sentenced Babu to pay a fine of N$4 000 or serve a period of two years’ imprisonment, of which half the fine and prison term was suspended conditionally for five years.According to documentation submitted to the High Court, Babu did not pay the effective fine of N$2 000, but instead headed to prison to serve the effective jail term of one year.On March 13, some five months into the period of imprisonment, he was however released under the Presidential reprieve of prisoners that marked Namibia’s 15th Independence celebrations.Now Babu is heading back to prison again, after the High Court set aside the Magistrate’s Court’s sentence and replaced it with an increased term of imprisonment last week.After Babu’s case had made its way to the High Court, where it had to be reviewed by a Judge, Judge President Petrus Damaseb declared that in his view the sentence that had been imposed was “shockingly lenient” and “shockingly inappropriate”, and that it was up to the Prosecutor General to decide what to do next in connection with the matter.The Prosecutor General’s decision was to pursue an appeal against the sentence, and last week Acting Judge Mtambanengwe agreed with the Judge President’s opinion that the initial sentence that was given to Babu had been “shockingly inappropriate”.Acting Judge Mtambanengwe noted that the Swakopmund Magistrate’s Court was informed that N$50 000 had been recovered from Babu’s bank account and that this money was returned to Woermann Brock.That Babu had at least N$50 000 in his bank account either as proceeds of the theft from Woermann Brock or from other sources as shows “that he stole to enrich himself and not out of need (whatever it is)”, Acting Judge Mtambanengwe remarked in his judgement.This, he said, is an aggravating factor.He added: “The amount stolen was considerable and the prevalence of theft, and in particular theft from employers, is notorious.The need to deter not only the accused but other would be offenders was a factor the trial court should have considered in the circumstances of this case.”Acting Judge Mtambanengwe replaced the initial sentence that Babu receive with a sentence of three years’ imprisonment, of which one year was suspended for five years on condition that Babu is not again convicted of theft committed during the period of suspension.In the judgement, Acting Judge Mtambanengwe dealt with a case in which the State appealed against the sentence that a young man received in the Swakopmund Magistrate’s Court after he had admitted stealing more than N$52 000 from his employer.John Henry Babu was a 23-year-old, unmarried first offender when he pleaded guilty in the Swakopmund Magistrate’s Court to a charge of theft on October 14 2004.He admitted that he had stolen N$52 727,26 from his employer, Woermann Brock, at Swakopmund on May 31 2004.According to the brief court record of his trial, his only explanation for the theft was this statement: “I needed money.”Swakopmund Magistrate Gibson Imbili sentenced Babu to pay a fine of N$4 000 or serve a period of two years’ imprisonment, of which half the fine and prison term was suspended conditionally for five years.According to documentation submitted to the High Court, Babu did not pay the effective fine of N$2 000, but instead headed to prison to serve the effective jail term of one year.On March 13, some five months into the period of imprisonment, he was however released under the Presidential reprieve of prisoners that marked Namibia’s 15th Independence celebrations.Now Babu is heading back to prison again, after the High Court set aside the Magistrate’s Court’s sentence and replaced it with an increased term of imprisonment last week. After Babu’s case had made its way to the High Court, where it had to be reviewed by a Judge, Judge President Petrus Damaseb declared that in his view the sentence that had been imposed was “shockingly lenient” and “shockingly inappropriate”, and that it was up to the Prosecutor General to decide what to do next in connection with the matter.The Prosecutor General’s decision was to pursue an appeal against the sentence, and last week Acting Judge Mtambanengwe agreed with the Judge President’s opinion that the initial sentence that was given to Babu had been “shockingly inappropriate”.Acting Judge Mtambanengwe noted that the Swakopmund Magistrate’s Court was informed that N$50 000 had been recovered from Babu’s bank account and that this money was returned to Woermann Brock.That Babu had at least N$50 000 in his bank account either as proceeds of the theft from Woermann Brock or from other sources as shows “that he stole to enrich himself and not out of need (whatever it is)”, Acting Judge Mtambanengwe remarked in his judgement.This, he said, is an aggravating factor.He added: “The amount stolen was considerable and the prevalence of theft, and in particular theft from employers, is notorious.The need to deter not only the accused but other would be offenders was a factor the trial court should have considered in the circumstances of this case.”Acting Judge Mtambanengwe replaced the initial sentence that Babu receive with a sentence of three years’ imprisonment, of which one year was suspended for five years on condition that Babu is not again convicted of theft committed during the period of suspension.