Supreme Court upholds 10-year prison term

A CRIMINALLY enterprising Windhoek welder, whose earlier success with staging a high-stakes burglary at Rosh Pinah fatefully prompted him to attempt a repeat break-in, lost an appeal against his jail term in the Supreme Court last week.

Harry de Klerk was 39 years old when Judge Mavis Gibson sentenced him in late June 2001 to ten years’ imprisonment on charges of housebreaking with intent to steal and theft and housebreaking with intent to steal and attempted theft. He was sentenced in the High Court after pleading guilty to those charges.In his plea, De Klerk admitted that he had been involved in a burglary at Rosh Pinah in which a little over N$250 000 was stolen from a strongroom of Imcor Tin Mine in late October 1997.Slightly more than a year later, De Klerk and a nephew of his, Theo de Klerk, tried to repeat that break-in – but got caught.Judge of Appeal Gerhard Maritz, who wrote the Supreme Court judgement in which Harry de Klerk’s appeal was dismissed on Friday, related the tale thus: “The appellant,” – that is Harry de Klerk – “like many other greed-inspired criminals before him, ultimately fell victim to his earlier unlawful success: Emboldened by the apparent ease with which he and four accomplices had broken into and stolen more than a N$ Œ million from a strongroom of Imcor Tin Mine Ltd during late October 1997, the appellant sought to supplement his earlier ill-gotten gains by a repeat of the burglary about a year later.His extensive preparations for the crime and the solicitation of his nephew’s assistance came to naught when he was caught red-handed by the mine’s security officers as he was about to gain entrance to the office complex through the roof of the section containing the company’s safe.The reward for his long southward journey from Windhoek to Rosh Pinah was not the illicit bounty he had hoped to gain but an arrest and incarceration which he justly deserved.”The question before the Supreme Court was whether the sentence that Judge Gibson dished out to De Klerk was so clearly wrong that the Supreme Court could interfere with her decision.She sentenced De Klerk to an eight-year term for the successful 1997 break-in, and a three-year jail sentence for the second, ill-fated burglary, of which one year was ordered to run concurrently with the longer sentence.Theo de Klerk was sentenced to three years’ imprisonment, of which half was suspended, for the second break-in.Judge of Appeal Maritz could find no fault with Judge Gibson’s sentences, though.If anything, he remarked, she may have given De Klerk more credit than was due when she took his guilty plea as a sign that he had contrition over his crimes.The eight-year jail term, Appeal Judge Maritz agreed, was severe, but given the facts and the circumstances of the case, it did not appear to him to be so severe that it was unjust or unreasonable.”Crimes involving the theft of such large amounts must inevitably result in sentences of some severity,” he stated.Although De Klerk claimed to have received only N$10 000 out of the loot stolen in the 1997 burglary, his expertise and industry – De Klerk used his skills as a welder to cut open a safe with a blowtorch on that occasion – were the most essential cogs in the operation that led to that theft of more than N$250 000, the Judge remarked.The fact that he tried to repeat that enterprise a year later, showing that he did not repent and had no remorse at that stage, was a further important factor that counted against him, Judge of Appeal Maritz also felt.The Judge stated: “He planned yet another raid and repeatedly imposed on his much younger nephew to assist him.He generally behaved himself in such a manner as to make it absolutely necessary that suitable condign punishment should be imposed on him.”Chief Justice Peter Shivute agreed with Appeal Judge Maritz’s judgement.De Klerk’s appeal was heard in October 2004.Zagrys Grobler represented De Klerk in the appeal, while Deputy Prosecutor-General Danie Small represented the State.He was sentenced in the High Court after pleading guilty to those charges.In his plea, De Klerk admitted that he had been involved in a burglary at Rosh Pinah in which a little over N$250 000 was stolen from a strongroom of Imcor Tin Mine in late October 1997.Slightly more than a year later, De Klerk and a nephew of his, Theo de Klerk, tried to repeat that break-in – but got caught.Judge of Appeal Gerhard Maritz, who wrote the Supreme Court judgement in which Harry de Klerk’s appeal was dismissed on Friday, related the tale thus: “The appellant,” – that is Harry de Klerk – “like many other greed-inspired criminals before him, ultimately fell victim to his earlier unlawful success: Emboldened by the apparent ease with which he and four accomplices had broken into and stolen more than a N$ Œ million from a strongroom of Imcor Tin Mine Ltd during late October 1997, the appellant sought to supplement his earlier ill-gotten gains by a repeat of the burglary about a year later.His extensive preparations for the crime and the solicitation of his nephew’s assistance came to naught when he was caught red-handed by the mine’s security officers as he was about to gain entrance to the office complex through the roof of the section containing the company’s safe.The reward for his long southward journey from Windhoek to Rosh Pinah was not the illicit bounty he had hoped to gain but an arrest and incarceration which he justly deserved.”The question before the Supreme Court was whether the sentence that Judge Gibson dished out to De Klerk was so clearly wrong that the Supreme Court could interfere with her decision.She sentenced De Klerk to an eight-year term for the successful 1997 break-in, and a three-year jail sentence for the second, ill-fated burglary, of which one year was ordered to run concurrently with the longer sentence.Theo de Klerk was sentenced to three years’ imprisonment, of which half was suspended, for the second break-in.Judge of Appeal Maritz could find no fault with Judge Gibson’s sentences, though.If anything, he remarked, she may have given De Klerk more credit than was due when she took his guilty plea as a sign that he had contrition over his crimes.The eight-year jail term, Appeal Judge Maritz agreed, was severe, but given the facts and the circumstances of the case, it did not appear to him to be so severe that it was unjust or unreasonable.”Crimes involving the theft of such large amounts must inevitably result in sentences of some severity,” he stated.Although De Klerk claimed to have received only N$10 000 out of the loot stolen in the 1997 burglary, his expertise and industry – De Klerk used his skills as a welder to cut open a safe with a blowtorch on that occasion – were the most essential cogs in the operation that led to that theft of more than N$250 000, the Judge remarked.The fact that he tried to repeat that enterprise a year later, showing that he did not repent and had no remorse at that stage, was a further important factor that counted against him, Judge of Appeal Maritz also felt.The Judge stated: “He planned yet another raid and repeatedly imposed on his much younger nephew to assist him.He generally behaved himself in such a manner as to make it absolutely necessary that suitable condign punishment should be imposed on him.”Chief Justice Peter Shivute agreed with Appeal Judge Maritz’s judgement.De Klerk’s appeal was heard in October 2004.Zagrys Grobler represented De Klerk in the appeal, while Deputy Prosecutor-General Danie Small represented the State.