WINDHOEK – Judge Nate Ndauendapo last week on Friday dismissed an appeal the State lodged against a sentence meted out to a self-confessed fraud convict.
“I have considered all the submissions and I am of the view that given the personal circumstances of the respondent, the confiscation order granted, the criminal record that the respondent has after I convicted him, which will haunt him for the rest of his life, I am of the view that five years’ imprisonment is not lenient and does not induce a sense of shock,” Judge Ndauendapo stated in his judgment.
The State appealed after Judge Ndauendapo imposed a five-year sentence on Robert Helao Shivute who pleaded guilty to all charges.
Shivute, 39, a former creditor’s clerk at Pupkewitz Megabuild pleaded guilty to 31 counts of fraud, 23 counts of forgery and 22 counts of uttering involving N$1.9 million between March 2005 and October 2009.
His assets worth N$371 615 including an erf in Okuryangava were confiscated in terms of the Prevention of Organised Crime Act (POCA).
The State led by State Advocate Ed Marondedze argued the sentence imposed is so lenient that it induces a sense of shock.
However, Judge Ndauendapo found this is not the case.
He said the sentence conforms to the element of mercy and the interest of society.
“The sentence imposed should not break the accused and he should be granted the opportunity to be rehabilitated,” the judge stated.
Boris Isaacks who appeared on behalf of Shivute argued that while the amount involved seems substantial, the mitigating factors “were weighty”.
Marondedze argued Shivute misused a position of trust and in fact bit the hand that fed him.
He said Shivute’s actions were carried out for greed and vengeance and that he “put his employer out of pocket to the tune of almost N$2 million.”
Shivute told the court in mitigation that he committed the fraud because he was angry over being overlooked for promotion.
Marondedze argued the offences were committed over a prolonged period of time and were premeditated and therefore amounted to direct intent.
Judge Ndauendapo did not agree with any of these sentiments expressed by the State and said he was not satisfied that another court would come to a different conclusion and in the result there were no reasonable prospects for success on appeal.
By Roland Routh