22 May 2014

Joseph John Ballout who was recently convicted on single charge of unlawful possession of computer devices and 14 cashing and paying cards designed for the commission of cyber fraud crimes has been fined P10 000 and sentenced to six months prison term.

Chief Magistrate Linah Oahile-Mokibe of the Village Magistrate Court in Gaborone said when passing sentence on Tuesday, May 20 that the fact that Ballout was found in possession of a dysfunctional machine did not absolve him from wrong doing.

Mrs Oahile-Mokibe said Ballout was not a passive actor in the commission of the offence because he knew what the machine was used for and he intended use it for the wrong purpose. She said Ballout was man enough to take care of his actions, noting that the sentence was meant to send a strong message to would-be criminals who might be tempted to act likewise.

However Mrs Oahile-Mokibe said she took into consideration that Ballout was a family man and therefore handed a befitting sentence. The offence attracts a fine of up to P20 000 and a one-year prison term.

Recently, Ballout’s lawyer, Mr Friday Leburu, submitted in mitigation that the said dysfunctional machine was like a rotten carcass of game meat which could not be used for any meaningful purpose because it had lost its desire and useful state for human consumption.

Mr Leburu, who said the convict would appeal the sentence, told the court that it was not in dispute that his client was found in possession of a black Automated Teller Machine card device, which was of course dysfunctional.

He argued that what his client was being punished for was only the possession of an obsolete device which could not be used for the purposes of cybercrime because it could not function in its current state of disrepair.

He said the court should consider the issue of dysfunctional part of the said machine when handing down the sentence.

He said Ballout passively participated in the offence, noting that the Liberian man had been in Botswana for the past 30 years and has no adverse record with the law.

“He is a first offender and the courts should as far as possible try not to send first offenders to prison but where they send them that should be just mere introduction to prison conditions,” he said. “A substantial portion of their prison term should be suspended.”

Ballout has been in prison for four months cumulatively and as such asked the court to at least impose a fine, adding that his client has already pleaded guilty and saved the court’s time.

He is a Muslim and has a family to take care of and in addition his wife was expecting and the baby was due this month.

Mr Leburu also said Ballout was asthmatic and had a steel knee and had a rare disease called hernia, which causes depletion of the underlining of the stomach. He is therefore due for operation.

Ballout and his co-accused, Kgosana Seth Tladi, were jointly charged with unlawful possession of computer devices and 14 cashing and paying cards designed for the commission of cyber fraud crimes.

The court heard that on July 6, 2013, the police received information that Ballout and other men who had since been cleared of the charges, were in possession of Automated Teller Machine cashing and paying cards device that was designed and adapted for the purpose of manufacturing fraudulent electronic cashing and paying cards.

Upon arrest and body search at Gaborone Sun, a black automated teller machine card device, otherwise called scheming device, was found in Ballout’s trouser.

He confessed to knowing what he had and told the police that he got it from Tladi.

Forensic investigations carried out on the scheming device confirmed that it was used to capture information contained in the magnetic stripe in the bank and gifts cards. However, the scheming device was found to be dysfunctional.

Meanwhile Tladi, a South African who is represented by Attorney Gabriel Kanjabanga will come for his mention on June 30. Tladi, who lives Welkom, and has pleaded guilty to the charge, is on bail. ENDS