4 December 2012

Namibia: Stoffberg to Face the Music Again

Windhoek — Convicted fraudster and former civil servant in the Ministry of Finance Brian Stoffberg could still face jail time for his conviction of corruptly using his office for gratification when he submitted two claims of overtime worth N$6 630.90.

Judge Harald Geier found that the trial magistrate had accorded undue weight to the personal and mitigating factors by imposing a wholly suspended sentence and it was unclear how such sentence accommodated the aspect of deterrence and the need to protect the interests of society. As a result the judge granted leave to appeal against the sentence to the State as he found that another court may come to a different conclusion on a sentence.

Stoffberg had pleaded guilty and received a fine of N$8 000 or one year imprisonment, suspended in whole for a period of five years on condition that he is not convicted of the same offence again.

The State appealed immediately after sentence arguing that the personal and mitigating factors submitted during the trial were overemphasised by the court and that the deterrent aspect of sentencing was not accorded sufficient weight.

The State also argued that the court did not adequately take into account the prevalence of the offence, and the high degree of moral blameworthiness due to the respondent's senior position in the ministry.

Stoffberg in opposing the application argued that the stressful effect the ordeal had on him and his family should be seen as a deterrent factor in itself. He further stressed to the court that he has suffered public humiliation and he feels the burden of the punishment imposed on him.

He further argued that his misdeed was not done out of greed, but rather out of need and that the misappropriated money was replaced almost immediately with the result that he had not benefited from his crime.

Judge Geier however found that from the reasons the trial court furnished for sentencing it realised that the offence is a serious one and on the increase. He further found that the court "expressly realised that that there was a need to impose a deterrent sentence, as corruption undermines government and that the court would therefore be duty bound to protect the interests of society in this regard."

The judge stated that despite "expressly recognising these factors relevant to the sentence and despite expressly acknowledging that these weighty considerations should play a significant role in the sentencing process, the learned magistrate, nevertheless, allowed the mitigating and personal circumstances of the respondent to prevail totally."

Judge Geier concluded that in his view the sentence was inappropriate and that another court may come to a different conclusion with regard to an appropriate sentence.

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