S v Koen (CC 14-2012 CC 15-2012) NAHCMD 216 (15 July 2014)
REPUBLIC OF NAMIBIA NOT REPORTABLEHIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEKSENTENCE CASE NO: CC 14/2012 CASE NO: CC 15/2012In the matter between:THE STATEvsDAWID JOHANNES KOEN ACCUSEDNeutral citation: S v Koen (CC 14/2012 CC 15/2012) NAHCMD 216 (15 July 2014)Coram: SIBOLEKA JHeard on: 12, 13, 14, 15 May 2014Delivered on: 15 July 2014SIBOLEKA J[1] The accused was charged on the following counts:1. ARSON2. DEFEATING OR OBSTRUCTING THE COURSE OF JUSTICE3. FRAUD COUNTS 1–112 FRAUD First Alternative to FRAUD – Counts 1–112: THEFT – GENERAL DEFICIENCY. Second Alternative to FRAUD – Counts 1–112: THEFTARSONThat Dawid Johannes Koen is guilty of the crime of Arson.In that upon or about 17 August 2009, and at/or near the Municipality of Outjo’s offices in the district of Outjo the said Dawid Jonannes Koen did wrongfully, unlawfully and intentionally set fire to and thereby damage by fire, a certain building, being an immovable and the property of Outjo Municipality with the intent to;Injure in its property the Municipality of Outjo and/or Josef Abel Urib and/or The Board of Directors of Outjo Municipality and/or any other lawful representative of Outjo Municipality and/orTo conceal and/or destroy the evidence of theft of funds belonging to the Outjo Municipality and/or his fraudulent activities against the Municipality of Outjo and/or Josef Abel Urib and/or The Board of Directors of Outjo Municipality and/or any other lawful representative of Outjo Municipality.DEFEATING OR OBSTRUCTING THE COURSE OF JUSTICEThat Dawid Johannes Koen is guilty of the crime of Defeating or Obstructing or attempting to Defeat or Obstruct the Course of Justice.In that the said Dawid Johannes Koen did unlawfully and with the intent to defeat or obstruct the course of justice:On or about 17 August 2009, and at/or near the Municipality of Outjo’s offices in the district of Outjo, set on fire the building of the Municipality of Outjo wherein all the accounting and financial records and all other documents, stationery, laptops and computers pertinent to the day to day running of the Municipality of Outjo were kept.Whereas when the accused perpetrated this act he knew or foresaw that:His conduct will frustrate and/or interfere with police investigations into his alleged fraudulent and/or thievish activities against the Municipality of Outjo and/or;His conduct will conceal and/or destroy evidence indicating that he committed the offences of fraud and/or theft and/orHis conduct will/may protect him from being prosecuted for fraud and/or theft.Wherefore the accused is guilty of the crime of defeating or obstructing the course of justice.FRAUD Counts 1–112WHEREASThe accused, Dawid Johannes Koen, was at all material and relevant times employed by the Municipality of Outjo as a Strategic Executive Officer (SEO). He was also referred to as the Treasurer. He was the Chief Financial Officer of the Municipality of Outjo and he was, among other duties;Responsible for planning, directing, controlling and administering the financial affairs of the Municipality of Outjo and carrying out all the Statutory responsibilities and duties as the Treasurer of the Municipality;To serve as a policy advisor to the Chief Executive Officer (CEO) for fiscal, financial, informational and accounting matters.To develop, implement control and maintain policies and strategies with regard to the financial affairs of the Municipality andTo manage the Treasury Department in its statutory, operational, custodial and advisory responsibilities.AND WHEREAS the accused person did, between the period extending from 5 March 2007 to 17 August 2009 and at/or near the Municipality of Outjo’s offices in the district of Outjo; wrongfully, unlawfully, falsely and with intent to defraud give out and pretend to the Municipality of Outjo and/or Josef Abel Urib and/or The Board of Directors of Outjo Municipality and/or any other lawful representative of Outjo Municipality that:On the dates listed under Column A of Schedules 1; 2; 3 and 4, the Municipality of Outjo collected as revenue in cash amounts listed under Column E of Schedules 1; 2; 3 and Column B of Schedule 4, and also in cheque form as listed under Column D of Schedules 1; 2 and 3 and under Column C of Schedule 4, and that these amounts had been duly deposited into the Municipality of Outjo’s bank account with Standard Bank on the dates listed in Column G of the Schedules 1; 2 and 3 and/or;The accused was keeping good accounting records of all the transactions at the Municipality of Outjo and he was working to the best interests of his employers.All the revenue due to and collected on behalf of the Municipality of Outjo from the residents and other beneficiaries of services from the Municipality of Outjo as payment for rates, water charges, refuse removal, sewerage services, electricity and other incidental services, levies and charges was being accounted for in terms of the laid down procedures of the Municipality of Outjo.And did then and there by means of the said false pretences, induce the Municipality of Outjo and/or Josef Abel Urib and/or The Board of Directors of Outjo Municipality and/or any other lawful representative of Outjo Municipality to the actual or potential loss or prejudice to the Municipality of Outjo and/or Josef Abel Urib and/or the Board of Directors of Outjo Municipality and/or any other lawful representative of Outjo Municipality to:Believe and accept the above mentioned misrepresentations and/or any part thereof and/or;Believe that all the monies due to and collected on behalf of the Municipality of Outjo from the residents and other beneficiaries of services from the Municipality of Outjo as payment for rates, water charges, refuse removal, sewerage services, electricity and other incidental services, levies and charges was being accounted for and/or was being deposited into the Standard Bank account of Outjo Municipality for the sole utilization by Outjo Municipality.Accept and trust that the accused was discharging his assigned duties in the best interests of the Municipality of Outjo.Whereas in truth and in fact the accused, when he so gave out and pretended as previously mentioned he well knew that:The cash receipts listed under Columns E of Schedules 1; 2; 3 and Column G of Schedule 4, transacted on the dates indicated in Column A of all the Schedules were, in actual fact not deposited into the Standard Bank account of the Municipality of Outjo and/or were not the exact figures so deposited and/or were not a true reflection of the banking transactions conducted by the accused on behalf of the Municipality of Outjo at the Standard Bank and/or;The accused had not deposited money collected as cash into the Standard Bank account of the Municipality of Outjo but had only deposited the cheques into the said account and/or;He was not entitled to amounts listed under Column E of Schedules 1; 2; 3 and Column G of Schedule 4, totaling in the sum of N$1 742 208.83, but nevertheless proceeded to appropriate the same and/or;The representations aforementioned in paragraphs (a), (b) and (c), above, or any part thereof were false and/or incorrect and/or;He had no lawful right to appropriate all the monies previously mentioned and/or to dispose of them as he did without the consent of the Municipality of Outjo and/or Josef Abel Urib and/or The Board of Directors of Outjo Municipality and/or any other lawful representative of Outjo Municipality to the actual or potential loss or prejudice to the Municipality of Outjo and/or Josef Abel Urib and/or The Board of Directors of Outjo Municipality and/or any other lawful representative of Outjo Municipality.And thus, the accused did commit the crime of FRAUD.First Alternative to FRAUD Counts 1–112: Theft – General Deficiency as read with sections 100 and 243 of the Criminal Procedure Act No. 51 of 1977.That the accused Dawid Johannes Koen, is guilty of the crime of Theft of General Deficiency.In that whereas at all relevant and material times, the accused Dawid Johannes Koen, was employed at the Municipality of Outjo as a Strategic Executive Officer (SEO). He was also referred to as the Treasurer. He was the Chief Financial Officer of the Municipality of Outjo, the accused was as such a servant or agent of the said Municipality of Outjo and was entrusted with the custody and care of varying amounts of cash collected on behalf of and due to the Municipality of Outjo from the residents and other beneficiaries of services from the Municipality of Outjo as payment for rates, water charges, refuse removal, sewerage services, electricity and other incidental and related services, levies and charges which cash had come into his possession and/or control and which cash belonged to his said employer. The accused person did, during the period extending from 5 March 2007 to 17 August 2009 and at or near the Municipality of Outjo’s offices in the district of Outjo, wrongfully, unlawfully and intentionally steal some cash thereby creating a general deficiency of N$1 742 208,81, the property of or in the lawful possession of the Municipality of Outjo and/or Josef Abel Urib and/or The Board of Directors of Outjo Municipality and/or any other lawful representative of Outjo Municipality.Second Alternative to FRAUD Counts 1-112: THEFTThat the accused Dawid Johannes Koen, is guilty of the crime of Theft. In that upon or about the period extending from 3 May 2007 to 17 August 2009 and at/or near the Municipality of Outjo’s offices in the district of Outjo, the said accused did wrongfully, unlawfully and intentionally steal the amounts listed under Column E of Schedules 1; 2; 3 and Column G of Schedule 4, on or about the dates indicated in Column A of all the Schedules totaling the sum of N$ 1 742 208,81, the property of or in the lawful possession of the Municipality of Outjo and/or Josef Abel Urib and/or The Board of Directors of Outjo Municipality and/or any other lawful represen- tative of Outjo Municipality. _____________________________________________________________ THE SUMMARY OF SUBSTANTIAL FACTS IN TERMS OF SECTION 144 (3)(a) OF THE CRIMAL PROCEDURE ACT NO 51 OF 1977 ARE AS FOLLOWS: ____________________________________________________________The accused, Dawid Johannes Koen, was at all material and relevant times employed by the Municipality of Outjo as a Strategic Executive Officer (SEO). He was also referred to as the Treasurer. He was the Chief Financial Officer of the Municipality of Outjo and he was, among other duties;Responsible for the planning, directing, controlling and administering of the financial affairs of the Municipality of Outjo and carrying out of all the Statutory responsibilities and duties as the Treasurer of the Municipality;To serve as a policy advisor to the Chief Executive Officer (CEO) for fiscal, financial, informational and accounting matters;To develop, implement control and maintain policies and strategies with regard to the financial affairs of the Municipality andTo manage the Treasury Department in its statutory, operational, custodial; and advisory responsibilities.During the period preceding the burning down of the administrative building of the Municipality of Outjo it had emerged that the accused was not performing his duties as per his mandate resulting in immense pressure from the Office of the Auditor-General and the Parliamentary Standing Committee on public Accounts. The accused had not submitted financial statements for the years 2005/2006; 2006/2007 and 2007/2008. Further the bank reconciliation statements were in arrears. His performance was the subject of the Management Committee meeting which was held on 25 March 2009. He was thereafter handed a warning letter by the Chief Executive Officer wherein he was given parameters within which to perform his duties.During the months of July and August 2009 the Council was having its annual shut-down of the financial year. The accused had not yet submitted his financial statements as required. Further the Auditor-General had notified the management of the Municipality that an audit team would visit the Municipality to conduct an investigation on 17 August 2009. However, on 17 August 2009 and during the early hours of the morning, before employees had reported for duty and before the offices had been opened for business, the accused’s car was seen parked outside the Municipality Building’s Offices. Shortly before flames of fire were seen engulfing the building, the accused was seen dashing into his car and driving off at high speed. When the audit team from the Office of the Auditor-General arrived they found the building on fire. The accused had disappeared only to hand himself over to the police later during the afternoon of the same day.The burning down of the finance/administration block of the Municipality of Outjo resulted in the destruction of most financial records, furniture and equipment; the replacement value of which was quite astronomical. Subsequently an investigation was conducted into the way the accused had conducted his duties. It emerged that the accused had embezzled a substantial amount from the Municipality.The Municipality of Outjo, among others, operated the following services:Water supply to the townAdministering plot taxesGarbage/refuse removalSanitation andUp-keeping of infrastructure of the town.The residents and other beneficiaries of these services paid the Municipality for these services. The revenue was paid to the cashiers. The Municipality had in place an accounting system called Finstel Programme. At the end of the day the cashiers will cash up on the computer and the accused was supposed to verify in the presence of the cashier that the cash at hand tallied with the computer print out. Thereafter the cashiers or others of accused’s subordinates were supposed to take the cash and cheques for banking the following day. However, the accused (in all instances when cash was not deposited and unaccounted for) did the banking personally. In the process he only deposited cheques into the Municipality’s Standard Bank account and he appropriated the cash. Using this method he defrauded and/or stole from the Municipality of Outjo of the total sum of N$1 742 208,83. He had no lawful right to act in the manner he did.[2] The accused drew up a statement in terms of section 112(2) as well as section 115 of the Criminal Procedure Act, Act 51 of 1977. The said statement was read into the record by his counsel Mr Wessels and the accused confirmed it.[2.1] The plea statement is as follows:________________________________________________________________I, the undersigned,DAWID JOHANNES KOENwish to state as follows:I am the accused in this matter facing charges of:ARSONDEFEATING OR OBSTRUCTING THE COURSE OF JUSTICEFRAUD (112 COUNTS OF FRAUD)First alternative to FRAUD (COUNT III) – THEFT – GENERAL DEFICIENCY (112 COUNTS)Second alternative to FRAUD (COUNT 111 – THEFT – (112 COUNTS)I plead guilty to Count 1 and 2 but NOT GUILTY to all charges in respect of FRAUD (COUNT III). I also plead NOT GUILTY to the first alternative to FRAUD i.e. THEFT – GENERAL DEFICIENCY.I, however, plead guilty to some of the charges in respect of the second alternative to the main count in Count III i.e. THEFT. In respect of my plea pertaining to the second alternative to Count III, I plead as follows:Guilty in respect of the following charges: Count 1–10 // Counts 12-26 // Count 28 // Counts 30–33 // Counts 35–45 // Counts 47–50 // Count 54 // Counts 61–62 // Count 66 // Counts 68–69 // Count 71 // Counts 74–76 // Count 82 // Count 84 // Count 89 // Counts 96–97 (totaling an amount of N$1 190 979,80).Not guilty to Count 3 (Main Count) as well as both alternative counts in respect of the following charges: Count 11 // Count 27 // Count 29 // Count 34 // Count 46 // Counts 51–53 // Count 55 – 60 // Counts 63– 65 // Count 67 // Count 70 // Counts 72–73 // Counts77 – 81 // Count 83 // Counts 85–88 // Counts 90–95 // Counts 98–112 (totaling an amount of N$551 229,00).I tender this plea freely and voluntarily and am fully aware of my rights and hereby state as follows:I confirm that I am fully aware of the allegations in all the charges preferred against me.I further confirm that I am fully aware of and have been informed by my counsel of my rights, namely:That I am presumed innocent until proven guilty beyond reasonable doubt.That I cannot be compelled to give self-incriminating evidence and that if I so wish can remain silent and do not have to testify during these proceedings.I hereby plead guilty to the counts as set out in paragraph 3.1 supra.I hereby confirm that I plead guilty of my own free will. Nobody has influenced me in any manner whatsoever to plead guilty, nor was I made any promises.I further confirm that I am fully aware of the consequences of this plea, namely that I can be convicted on the charges to which I have pleaded guilty, without the State having to call witnesses or tender any evidence to the said charge against me.In amplification of my plea in respect of Count 1 (ARSON) I admit the following in terms of Section 112(2) of the Criminal Procedure Act, Act 51 of 1977.I admit that I was in Outjo at the offices of the Municipality of Outjo in the district of Outjo on 17 August 2009.I admit that I wrongfully, unlawfully and intentionally set fire to a certain building, being an immovable property; the property of Outjo Municipa-lity.I admit that I set on fire the abovementioned permanent structure/immovable property with the intend to conceal and/or destroy the evidence of theft of funds belonging to the Outjo Municipality and/or Josef Abel Urib and/or the Board of Directors of Outjo Municipality and/or any other lawful representative of Outjo Municipality (see my pleas of guilty to the second alternative to the third Count – Fraud – i.e. Theft).I admit that, at the time of the commission of the offence of Arson, my actions were wrongful and unlawful and I knew that if caught I could be arrested, charged, convicted and sentenced.In amplification of my plea in respect of Count II – DEFEATING OR OBSTRUCTING THE COURSE OF JUSTICE – I admit the following:I admit that I was in Outjo at the offices of the Municipality of Outjo in the district of Outjo on 17 August 2009.I admit that I wrongfully, unlawfully and intentionally set on fire a building, to wit the municipality building of Outjo wherein all accounting and financial records and other documents, stationary, laptops and computers, pertinent to the day-to-day running of the Municipality of Outjo were kept.I admit that when I so perpetrated the act of Arson, I knew and/or foresaw that my conduct will frustrate and/or interfere with the police investigations into my alleged thievish activities against the Munici-pality of Outjo and/or destroy evidence indicating that I committed offences of theft and I knew that my conduct might protect me from being prosecuted on charges of theft (see my pleas of guilty to the second alternative to the third Count – Fraud – i.e. THEFT).I admit that my actions were wrongful and unlawful and with the intent to DEFEAT AND/OR OBSTRUCT THE COURSE OF JUSTICE. I knew that I was committing the crime of DEFEATING OR OBSTRUC-TING THE COURSE OF JUSTICE and knew that if caught I could be arrested, charged and convicted.I confirm my plea of not guilty on all Counts of FRAUD (Counts 1-112) and the State will be put to the proof of the allegations.I also plead not guilty to the first alternative charge to Count III; to wit: THEFT – GENERAL DEFICIENCY (all Counts 1-112) and the State will be put to the proof of the allegations.In amplification of my plea of guilty to some of the charges in respect of the second alternative charge to Fraud; to wit: THEFT, I wish to state the following:I admit that I was in Outjo in the district of Outjo during the period of May 2006 to 17 August 2009.10.2I admit that I was, at all material and relevant times, employed at the Municipality of Outjo as their Strategic Executive Officer (SEO). I was also referred to as the treasurer and I was the Chief Financial Officer of the Municipality of Outjo.10.3I admit that I during the period referred to supra and on the dates referred to in Schedule 1, 2 and 3, I wrongfully and unlawfully stole the amounts as per Schedule 1, 2 and 3, Column E.10.4I, however, only plead guilty in respect of the third Count; second alternative thereto – Theft – in respect of the following incidents as per Schedule 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 28, 30, 31, 32, 33, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 47, 48, 49, 50, 54, 61, 62, 66, 68, 69, 71, 74, 75, 76, 82, 84, 89, 96 and 97.10.5I admit that the sum amount/total amount in respect of the amounts I wrongfully and unlawfully stole amount to N$1 190 979,80.10.6I admit that I knew that theft is a criminal offence and on each and every occasion that I stole money, as referred to supra, I knew that if discovered, I could be arrested, charged and sentenced.11. I plead not guilty to the following Counts in respect of Count 3; the second alternative:11.1Not guilty to Count 3 (Main Count) as well as both alternative counts in respect of the following charges: Count 11 // Count 27 // Count 29 // Count 34 // Count 46 // Counts 51–53 // Counts 55–60 // Counts 63–65 // Count 67 // Count 70 // Counts 72–73 // Counts77–81 // Count 83 // Counts 85–88 // Counts 90–95 // Counts 98–112 (totaling an amount of N$551 229.00).11.2The State will be put to the proof of the allegations therein.[2] It is now incumbent on me to consider an appropriate sentence for you. In doing that I am alive to the three factors which have become known as the triad, that is, your personal circumstances, the crime itself and the interests of society (See S v Zinn 1969 (2) SA 537 (A) and S v Rabie 1975 (4) SA 885 (A). Closely connected to the above factors is the purpose of punishment which entails the elements of retribution, prevention, deterrence and reformation. Depending on the circumstances of a particular matter, one factor may receive more emphasis than the other. The aim would nonetheless still remain the same, and that is to impose a balanced and well considered sentence.[3] I will now look at the personal circumstances of the accused, which he testified to under oath.[3.1] Dawid Johannes Koen testified that he was born at Bellville, South Africa on 15 February 1960, and is now 54 years of age. His mother died 16 years ago, while his father passed on in May 2013. He was already in custody on this matter, but was allowed to attend his father’s funeral. He handed in his passport as part of his bail condition. He has one brother and a sister. The accused first came to Namibia at the age of 12 in the company of his parents. They first settled in Keetmanshoop, later Tsumeb and eventually they came to Windhoek. He first did 2 years compulsory military in Oudshoorn South Africa, and later in Otjiwarongo before Independence. He went up to Grade 12 in 1978. He got married in September 1983. The accused first started working for Volkskas, Bank Windhoek, later Agrabank. Altogether he worked in the banks for 18 years. From there he worked for Kuisebmund Municipality and latter he started at Outjo Municipality as a treasurer, in the year 2000. He resigned at the time of this incident. He was still married, his wife, a nurse by profession, worked at Outjo Pharmacy.[3.2] At his work the accused received between N$6 000 to N$7 000, and his wife received N$5 000. Altogether they brought N$11 000 home every month end. His eldest son did a 4 year course as a quantity surveyor at the University of Pretoria. His second born son was 19 years old at the time of his arrest, employed by a Steel Construction Company. His daughter is working for Agra in Outjo. His wife divorced him one year after the incident. He did not oppose the action, his house was awarded to her in a court order. She still works at the pharmacy in Outjo and resides in her house to this day. At the beginning of the incident he started drinking too much. He used pills and a lot of alcohol, ill treated his wife and children. He was suffering from high blood pressure, depression high fever and cholesterol. Alcohol and medication made him feel pain thereby telling his wife and children they were bad people. He was referred to Okonguari Rehabilitation Centre for three months. There he was treated for high chronic depression, alcohol misuse and for wanting to commit suicide. After his release he had up to six follow-up sessions. His ex-wife has in the meantime been diagnosed with breast cancer and is receiving treatment. Her breast was removed, and is receiving treatment to curb the cancer virus from spreading to other parts of the body.[3.3] The monthly bond premiums on his wife’s house is in arrears. If he is sent to prison his ex-wife will not afford to pay the bond. He is planning to move into a flat, lease out the house for a bigger amount to sustain bond repayments. He owed Bank Windhoek on his two vehicles, as such he had to sell them off to settle the debt. He could no longer afford having them. On resignation his pension amounting to ± N$386 000 was paid out to Outjo Municipality and he was not comfortable with that payment. After his resignation it was very difficult for him to get employment, because they knew he was facing criminal charges. Du Plessis Carpentry was tendered to restore the Outjo building. He is working for Kamuku Transport which buys and exports devils claw. He earns N$10 000 per month. At some stage he practiced a hobby in respect of meat products and had a butchery where he was selling meat, but had sold it because he needed money. After his arrest some community members in Outjo created a fund where well wishers deposited money he used to cover his legal costs which included his bail application. He is aware of the fact that he is facing very serious charges. He was initially charged for arson, but later charges of fraud and defeating the cause of justice were added on. He has only N$50 000 which he paid for bail, and will ask a loan from family members to raise N$350 000 which he can pay back later. This amount can then be made available as court fine, or reduce the complainants losses, or part of a suspended sentence depending on what the court will order.[3.4] In terms of the charges to which he pleaded guilty, the amount of pension paid to the Municipality leaves more or less than N$1,19 million as the monies he still owes. In 2006/7 monthly premiums on the payment of cars and house bonds got into arrears, this is what made him start taking the money. At the time he and his wife paid for their sons studies. He had his whole family on his medical insurance. Arrears were in substantial amounts such that the Bank wanted to repossess his house. That is the time when he was drinking heavily every night. He used the stolen money for all his necessities – the same way he would use his own. Initially he thought after taking the money he would replace it, but it did not work out at all. But he nonetheless continued taking the money on a regular basis. He started thinking seriously how he should replace the money, and with these thoughts heavy drinking escalated. This also resulted in the overdose of his medication, and his marital affairs also got hurt in that process. Suicide thoughts also caught up with him, seeing it as a good option instead waiting to be arrested but he did not have the guts to do so. When he heard about the auditors that were supposed to be sent from Windhoek to audit the books at Outjo he proceeded to burn the building in order to destroy evidence. He drove to about 60 km outside Outjo, sat inside his car, contemplating suicide, it was here where he later surrendered himself to arrest. He was taken to a lawyer in Outjo and later to Sophien Hof Lodge outside Outjo. He is a first offender and feels very bad about what had happened.[3.5] On 15 March 2010 the accused collected a letter from Outjo Municipality confirming his resignation. The accused has to date made no effort to make any payment on all the monies he pleaded to have stolen. The aggravating conduct the accused has conceded to have done was to mortgage his house three times in excess of its value, thereby making it virtually impossible for the Outjo Municipality to attach and sale it in execution to realize the debt accused owes them. The accused was aware of the fact the excessive mortgage was an obstacle for the counsil to recover the losses he inflicted on them.[3.6] The accused also conceded that the money he stole from Outjo Municipality were the actual municipal bills such as water, electricity and refuse collection payments made by the residents of the municipal area of Outjo. He also conceded that elderly pensioners are also included as part of the residents of Outjo. The fire destroyed all receipt books and all records of proof of payments. The accused could not dispute that an Insurance Company paid the councel N$560 310,03 for the replacement of the damaged electronic equipment. Neither could he dispute that the Council was charged N$82 037,85 for the cost of the bill itself and not the contents. He does not dispute the fact that Outjo Municipality has suffered massive losses at his hands. An amount of N$2 262, 327,18 million dollars to rebuild the Municipality of Outjo. He conceded that on 26 April 2007 himself and the Chief Executive Officer of Outjo Municipality prepared the financial statement to be presented before the preliminary standing Committee on public accounts of financial statements, for audit purposes. These financial statements covered the period 05 March 2007 to 17 August 2009.[3.7] The Audit Firm Centre was appointed to start auditing Outjo financial books on 17 August 2009, but it did not happen, because that was the day he set the Finance building (Administration Block) on fire early in the morning. The accused also conceded that under his command as treasurer at Outjo were an accountant, Senior accountant, debtor clerks and cashiers who were supposed to do the daily bankings. He took over the daily banking duties in order to access the municipal monies and to gradually start with the stealing spree. His Bank Windhoek account showed that he had ample access to legal fees and was financially well off affording substantial deposits after every three days. The Municipality was also giving him advance salary on request.[3.8] The accused conceded that he was able to access to the legal ways of obtaining money. He said he was depositing large sums of money because he had went over the limit of his bank account. He knew he held a very high office of responsibility at the Municipality that required trust from his employer. The board, Mayor, councilors, and the resident of the town relied on him to properly run the finances of the town. What he did was a gross abuse of that high trust. The accused also conceded that after realizing the seriousness of the matter (the crime he has committed) he started to have sleepless nights. He resorted to treat himself to drinking alcohol excessively. He naturally did not have a drinking problem. According to him they are married in community of property, such that even if the house was not transferred to his wife’s name, the Municipality would only have been entitled to his share of the property.[4] Herman Abel Raath testified he is a Clinical Psychologist specialist, registered with the Social Worker Psychology Council of Namibia. He is currently stationed at a Psychiatric Private Hospital, Okanguare Psycho Therapy Centre near Khorixas. He established the Centre in 1997 and was the head and owner thereof up to 2011. He is now working as a private practitioner in Otjiwarongo specializing in family/couple therapy, and also working as a consultant at Okanguare Centre. In short his experience relates to the treatment of mental ailments by means of psycho therapeutic process. He knows the accused from August 2009 when he first consulted him in the Police Cells in Outjo. He had a severe major depressive episode. On request this witness made to the police the accused was transferred to Okanguare Psycho Therapeutic Centre for the treatment of acute depression accompanied by excessive use of alcohol which the accused thought as a self-medication to alleviate depression. The accused developed a peculiar need to commit suicide, a psychiatrical emergency that needed to be treated without delay. He was among other medication that he received put on sleeping tablets.[4.1] During cross-examination the witness conceded that during consultation he realized that the accused was able to distinguish between right and wrong. It is obvious, he said that he had the fear of what was going to happen. This was one of the contributing factors to his illness. This witness stated that the accused used alcohol as a self-medication to reduce the grief and worries with al the consequences that may go with the crime he has committed. The accused could not face the consequences of what he did because of his lack of self esteem. The alcohol made the accused to feel momentarily relieved of the trauma of the depression.[5] Paul !Goagoseb, a Pastor by profession, testified that he was the Mayor of Outjo from 1992 to 2004 and he came to know the accused since 2000 when he became the successful candidate for the post of treasurer for Outjo Municipality. He became the Strategic Executive officer also known as the Chief Financial accounting officer reporting to council through the Chief Executive Officer. The transitional period in which this witness served as the Mayor of Outjo had a lot of difficult challenges relating national reconciliation between blacks and white residents. ”Kaffer boetie” was in reference to white people who were friendly to black people. The blacks were then still not allowed to buy white bread and white sugar. Apart from performing duties as treasurer very well, the accused also assisted in bringing blacks and whites together. His office was open and friendly to tenants and he was flexible in accommodating arrangements for later payments instead of cutting the water to the tenants. The witness said he was a friend to the accused. He conceded that it was wrong that he stole the rates and taxes paid by Outjo town residents.[6] In mitigation for sentence Mr Wessels stated that at the time he committed the crime the accused was in financial problems. He came to court to apologize, pleaded guilty to his wrong doing. His pension amounting to N$286 000,00 has been paid to the council. Alternatively that can be paid to reduce the losses the complainant has suffered. The accused is also ready to make monthly payments in realization of a condition to a suspended sentence should it be imposed. He will not have access to a pension fund in his lifetime. He referred to S v Cleopas 1977(2) SA at 154 where the court held that if in the nature of the offence, the same objective can be achieved by an alternative to imprisonment, a custodial sentence would not be appropriate.[6.1] Mr Wessels also referred to the case of Jerry Wilson Munyama where the Supreme Court set aside the 10 years imprisonment and substituted it with six (6) years of which three (3) years were suspended. This case is clearly distinguishable from the matter before this court because Munyama out of his own accord, and before he was even arrested used the larger part of the money stolen to pay off some of the NBC debts, and only utilized the remaining N$100,720 for himself. In the matter before court if Outjo Municipality had not made arrangements on its own to facilitate the payment of the accused’s pension benefits into its coffers, it would not have so far recovered anything. Another significant difference between these two cases is that the accused in the matter before this court stole a substantial amount of money and then proceeded to burn down the Finance Block (Administration Building) of Outjo Municipality with all its contents including computers, copier machines and laptops, which Munyama did not do to the NBC building.[6.2] Mr Wessels referred to several authorities where accused persons stole lots of money in abuse of trust placed on them by their employers and were given partly suspended sentences. He submitted that a long term direct imprisonment sentence would not be appropriate. The accused, in the counsel’s view will be able to rehabilitate himself outside the confines of prison and is currently gainfully employed, financially supports his family.[7] In aggravation of sentence Mr Marondedze submitted that the remorse which the accused placed before court is not genuine. According to this counsel for genuine remorse the accused should have approached the council immediately after the commission of the offence, taken the necessary steps to have the burned building repaired and make an effort to pay back the money he had stolen. It appears that if the council did not withhold his pension, the accused would not on his own accord have done anything to make good the damage he has done. Instead of showing remorse by approaching council to agree on how he can repay the building he stayed away. The complainant had no choice but to take a very expensive route of instituting a claim against him, which he defended. [7.1] In the meantime the accused disposed off his assets resulting in him later consenting to an empty judgment. The judgment served no purpose because even if the accused was jointly sued with his wife to whom he was married in community of property with the aim of attach their house, the judgment would still be of no value due to the fact that the house was heavily mortgaged. His seven cars were no longer available. The Deputy Sheriff returned a nulla bona return of service meaning that the accused had nothing which could be attached to realize anything related to the damages he has made to the Outjo Council. The accused put all these efforts in place to frustrate the Council from recovering anything from him, clearly showing that he is as not remorseful at all. The prosecution council submitted that the accused’s pension which was paid to Council is nothing compared to the losses he brought to bear on Outjo Municipality.According to this counsel a lighter sentence on the accused would have far reaching consequences for the local authorities countrywide. [8] In sentencing the accused I have carefully thought and taken the following factors into account. After listening to the evidence and submissions from both parties and all the documents filed of record on this matter I came to the conclusion that aggravating circumstances outweigh the accused’s personal (mitigating) factors by a very large margin.[9] MITIGATORYThe accused is 54 years old, a first offender, pleaded guilty to theft and defeating the cause of justice. His pension money amounting to N$386, 272,87 was paid over to Outjo Municipality. Out of this amount, N$246, 007,09 was paid for the legal costs incurred by the councel in legally pursuing the accused to recover the damages he has caused in stealing the money and burning the Finance building. The remaining N$140, 265,78 was availed to the accused’s sundry account, payment to creditors and outstanding salary advances.[10] IN AGGRAVATIONThe accused, a then Strategic Executive officer/Chief Finance officer known as the treasurer of the Outjo Municipality started stealing the Council monies from March 2007 to August 2009, a period of two and half years.The accused pleaded not guilty to fraud because he knew that he has destroyed all the relevant documentation, when he burned down the Administration building (Finance Block), there was no way the prosecution would prove its case against him.N$1,810,324,33 Interest that accumulated on the employee’s debt of PAYE deductions at Outjo Municipality resulting from none regular payments, submitting tax returns to the Receiver of Revenue as a result of cash flow emanating from the theft of substantial amounts of money by accused.Developments of the Outjo town were brought to a stand still for a considerable period due to severe cash flow resulting in purchase creditors closing Municipal accounts.On 17 August 2009 the day the accused burned down the Finance Block (Administration Building) of the Outjo Municipality his house Erf 808 also in Outjo was fully equipped with furniture. On the same erf he also had a fully equipped butchery. All his seven vehicles were nowhere to be found. The property were removed or hidden away by him. The house itself was heavily mortgaged with registered bonds and five lease agreement such that the Deputy Sheriff returned a Nulla Bona return of service – meaning the accused had successfully made it impossible for the complainant Outjo Council to recover its losses by way of attachment of his immovable or movable property.The recommended insurance settlement agreement between Mutual & Federal Insurance Company and Outjo Municipality represented by its Chief Executive officer was in the total amount of N$144, 347,88. This amount includes all electronic equipment, the burnt building itself as well as the replacement of content. This amount was to be paid to the Outjo Chief Executive officer by way of cash payment repairing and or replacement of goods and items.The pertinent effect of the crime of arson on Outjo Municipality and the community:All books containing handwritten receipts issued between the period 01 July 2009 to 17 August 2009 were destroyed by fire. All debtors were requested to bring original handwritten receipts for their accounts to be credited. Several residents, including elderly pensioners who were unable to provide their original receipts suffered huge losses.History books and records dated from 1944, as well as graveyard registers and creditors payment record were destroyed and lost forever. The theft and fraud that the accused committed in taking the Municipality’s monies is substantial. He pleaded guilty to arson, theft in respect of the second alternative to the main count in count 111 that is theft and not guilty to fraud which could not be proved against him because he has destroyed all the relevant documents.The resultant severe anxiety of the accused’s high chronic depression for which he has since been receiving some treatment, in my view was self inflicted and therefore more aggravating than mitigatory. The reason being that he created sleepless nights for himself when he started stealing the monies that he was so highly positioned and in confidence entrusted to jealously take care of. When he realized the obvious danger of being arrested he felt the need to steal more and more to afford alcohol in order for him to be under the influence which he thought was the treatment to forget about the wrongs he was committing.[11] The main aim for the provision of local authorities is to bring the much needed essential services closer to the residents of villages and town councils. The employees of local authorities and in particular those of the Finance department are tasked to promptly receive, and record, all monies paid in for various services, and banking it regularly. This is the task the accused in his capacity as the Strategic Executive Officer, Treasurer (Chief Financial Officer) with his vast experience in the financial sector was expected to jealously guard and supervise at all relevant times.[11.1] As the overall Head of the Financial Department the accused dismally failed and humiliated the residents of Outjo, by stealing the monies they were paying to the Municipality for various services. The destruction did not spare the irreplaceable valuable historical documents that were kept there for years.[12] It is my considered view that the crime the accused has committed in particular the arson is clearly one of the worst to be committed by a high ranking local authority official that has found its rightful place on this Court’s criminal court books. I am therefore of the view that a lighter sentence may easily have far reaching consequences to other local authorities countrywide. [13] In the result the accused is sentenced as follows:Counts 1 and 2 are taken together for purposes of sentence: Twelve (12) years’ imprisonment.Count 3: Theft to some of the charges in respect of the second alternative to the main count in count 3: N$350,000,00 or in default of payment Six (6) years’ imprisonment. _____________ A M SIBOLEKA JudgeAPPEARANCESSTATE: E E Marondedze Instructed by The Office of the Prosecutor-GeneralDEFENCE: J Wessels Instructed by Directorate of Legal Aid ................
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