An Ondangwa-based lawyer, who was sentenced to effective six-year imprisonment for four counts of fraud, one count of attempting to defeat or obstruct the course of justice and two counts of forgery or uttering, suffered a loss when his application was dismissed.
Acting Judge Alvin Simpson found there were no prospects that another court would come to a different sentence for Arumugam Arumugam Thambapilai (77).
Similarly, he dismissed the leave to appeal application of Thambapilai’s co-convicts Linda Shipalanga and Festus Shindume.
Shipalanga was sentenced to four years imprisonment for a conviction of fraud and Shindume to an effective four years for one conviction of fraud, one conviction of theft by conversion as well as two counts of forgery and uttering.
All the convictions were taken together for sentencing.
The convictions stemmed from an elaborate scheme Thambapilai ran from his offices in Ondangwa to defraud the Motor Vehicle Accident Fund with fraudulent claims worth N$3.5 million between June 2000 and September 2005.
The convicts claimed in their appeal that the sentences are shockingly inappropriate, as the court misdirected itself by overemphasising the seriousness of the offences, as well as the interest of society and not taking into consideration the personal circumstances of the applicants.
According to them, another court will come to a different conclusion regarding the sentences. According to Judge Simpson, sentencing falls within the discretion of the court, and the powers of a court of appeal to interfere with sentence are limited.
“Interference is only permissible where the trial court has not exercised its discretion judicially or properly. This is when it has misdirected itself on facts material to sentencing or legal principles relevant to sentencing,” the judge said.
The judge further said he indeed took into consideration the personal circumstances of the applicants during sentencing – and in his considered view, the sentences meted out are just. He said the court considered the elements of contrition, prevention, deterrence, reformation and rehabilitation, and balanced the circumstances of each of the applicants, the crimes committed and the expectations of society, coupled with a measure of mercy. He found that no prospects of success exist and that another court may impose different sentences or has reason to interfere with the sentences imposed; hence, he dismissed the application.
Thambapilai was represented by Francois Bangamwabo, Shipalanga by Elias Shikongo, Shindume by Trevor Brockerhoff and the State by Ed Marondedze.
– rrouth@nepc.com.na