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CASE NO.: CC 07/2006
IN THE HIGH COURT OF NAMIBIA
In the matter between:
THE STATE
and
GABRIEL PETRUS Accused
CORAM: DAMASEB, JP
Heard on: 2 May 2006
Delivered on: 3 May 2006
______________________________________________________________________________
SENTENCE
DAMASEB, JP: [1] Gabriel Petrus, you intentionally caused the death of another human being who was still in the prime of her life. It is now my duty to sentence you. As it happens, the deceased was married to your nephew. I accept that she insulted you on three previous occasions and this angered you. You acted in a calculated fashion in exacting revenge. You chose a knife as the instrument to exact your revenge on the deceased. You could, of course, have decided simply to beat her up with bare fists and still exact revenge – and in that way avert loss of life.
[2] Better still you could have taken the matter to the traditional authorities so that, if found guilty, the deceased was made to compensate you. I am fully aware and take judicial notice that the system of traditional justice in Northern Namibia works very well – as evidenced by the fact that you were made to pay compensation to the victim’s family for causing her death. You, however, opted not to adopt those avenues. You opted, of your own free will, to play God and to take the life of another.
[3] The gratuitous use of knifes in Northern Namibia to harm others is remarkable, as indeed it is in the rest of the country. I know of the national picture from the many reviews that come before the High Court of Namibia. Almost every other murder case that was called before me while here on Circuit Court, involves the use of a knife on another. The Court therefore owes a duty to the public to stem this evil by appropriate deterrent and retributive sentences.
[4] I take into account the fact that you are a first offender. I accept that you were born in 1941 and are now about 65 years old. You therefore do not have much of a productive life left, although you still seem to be in fairly good health. I think you have worked very hard throughout your life to care for yourself and your family and stayed out of trouble with the law for this long. I think that must go to your credit when it comes to sentencing. You have a wife and six children, of whom the youngest is still in school. You are an illiterate and unsophisticated man who never had the benefit of formal schooling. You spent 6 months in custody awaiting trial before being released on bail. You also paid compensation of N$6 000-00 and a cow to the family of the deceased. Accepting, as I must, from your background, that you are not a wealthy man, that should have been a great sacrifice on your part and I cannot ignore that in the scale of sentence.
[5] You have asked for mercy from the Court and I will exercise mercy as far as humanly possible. I cannot, however, accept that you are not a danger to society. If you acted in the way you did against someone who was married to your own nephew, I am not sure how you would towards complete strangers. A measure of retribution for what you did is therefore unavoidable. The sentence I impose should also have the effect of deterring you from acting irresponsibly in future.
[6] Therefore, Gabriel Petrus, I sentence you to 12 years imprisonment of which 5 years are suspended for a period of 5 years on condition you are not found guilty of murder during the period of suspension.
______________
DAMASEB, JP
ON BEHALF OF THE STATE: Ms S Miller
Instructed By: Office of the Prosecutor-General
ON BEHALF OF THE ACCUSED: Ms F Kishi
Instructed By: Directorate of Legal Aid
CASE NO. CC 07/2006
IN THE HIGH COURT OF NAMIBIA
In the matter between:
THE STATE
and
GABRIEL PETRUS
CORAM: DAMASEB, J.P.
Heard on: 2006.05.02
Delivered on: 2006.05.02
_______________________________________________________________
JUDGMENT
DAMASEB, J.P.: [1] The accused, Gabriel Petrus, who is about 64 years old faces one count of murder. The indictment alleges that on or about the 2nd of April 2005, and at or near Okaambola village in the District of Ruacana, the accused did wrongfully, unlawfully and intentionally kill Loide Ekandjo, an adult female human being.
[2] The accused pleaded not guilty to murder, and the plea explanation by his counsel initially was that he did not have the intention to kill. He made the following admissions in terms of Section 220 of the Criminal Procedure Act:
1. That he stabbed the deceased on the 2nd of April 2005 with a knife on her back once;
2. That the stab wound was the cause of death;
3. That he admits the findings in the post-mortem report;
4. That he admits that the deceased died minutes after the stabbing.
[3] When the trial commenced today, counsel for the accused, Ms Kishi, added, in further explanation of the accused’s plea, that he acted in self-defence. The cause of death is given in the post-mortem report which has been admitted, as ‘stabbing to the chest’.
[4] The State called two witnesses: the first being Shihama Petrus, who is a biological son of the deceased. Shihama Petrus lives in the same house as the accused, and appears to be the only adult eye-witness to the incident. His evidence, briefly
summarized, is that on the fateful date named in the indictment, the accused came at the house where the deceased lived, being the
house of one Kuutondokwa Johannes - who is a nephew of the accused, and the husband of the deceased. According to this witness, when the accused came he found the witness, the deceased and one child, named Claudia, who does not speak.
[5] Originally the witness testified that when the accused came some words were exchanged between the accused and the deceased about the accused’s goats straying on the field of the deceased. That evidence he was to later retract in cross-examination. The possibility exists that the gist of it may have been lost during the translation process. What is certain though is that when the accused came to her house the deceased asked the accused whether he truly had ‘stepped his feet’ in her house and that the next time he did so she was going to report him to the police. Petrus further stated that the accused then took out a knife and stabbed the deceased: first behind the left shoulder blade, and the second time, on the left breast. According to Petrus the accused then left the house, and, in his words “the accused ran away”. He
stated further that at the time the accused came and exchanged words with her, the deceased was busy washing a plastic jug in what the witness described as the ‘kitchen’, and that he was able at all material times to witness what was happening between the accused and the deceased. He was firm that he did not witness any quarrel or fight between the duo. The knife used in the incident was presented to Petrus and he was able to recognize and identify it: it is a pocket knife with a sharp blade seven (7) centimetres long with a sharp end and a sharp-edged blade.
[6] In cross-examination of Petrus it emerged that at some point he had determined from the headman of the area that the deceased had reported the accused to the headman in connection with an incident that happened between the two. That was, of course, hearsay evidence, but since it was elicited in cross-examination, it is admissible/receivable. I think this evidence explains the confusion that may have arisen about exactly what was said in relation to the accused, the deceased and the goats straying on the field. I am therefore satisfied that this witness Petrus did not seek to mislead the Court on that particular issue. It is also significant
that he is the biological son of the deceased with no demonstrable motive to falsely make allegations against his father.
[7] The suggestion was made in cross-examination that the accused was sworn at by the deceased in the presence of this witness, but he denied it. There was also no reference whatsoever also in Petrus’ evidence about the possibility that the deceased may have grabbed the accused on his testicles. The suggestion put in cross-examination that the accused may have stabbed the deceased in order to ward off an attach from her was also denied by this witness.
[8] The next witness to testify was detective sergeant Cornelius Junias. This is the witness who took the warning statement from the accused person. What I need to say about this witness’s evidence is that he says that he explained to the accused his rights to legal representation, including the fact that he had a right to legal advice at his own expense. He clearly did not explain to him (and that he confirmed in questioning by the Court) that the accused had a right to legal representation paid for by the State
through, for example Legal Aid. I do not consider in the circumstances that it is safe to rely on that statement because the accused’s rights to legal representation had not been properly explained.
[9] Junias is the witness who had retrieved the knife from the accused and effected the arrest. The State then closed its case.
[10] The accused person testified in his own defence. Judging from his evidence, there appears to have been some problem between himself and the deceased person in the past, and the deceased had insulted him by, amongst others, making reference to his mother’s and wife’s private parts, and also referred to him as a ‘witch’. No reference to self-defence was evident from his evidence and it is clear from the submissions of both the State’s counsel and Defence counsel that, as they both put it. “self-defence had not materialized”.
[11] What is clear from the accused’s evidence is that he went that day (and I will assume in his favour on account of previous insults
by the deceased’s person) to take revenge. He pretty much confirmed and corroborated the evidence of his son that not much
was said between him and the deceased when he actually arrived. On his own version he was ‘angered’ by the insults of the accused which were exacerbated, according to his evidence which is not controverted, by more insults some time earlier that day. He repeatedly made reference to feeling sore on his heart because of the insults by the deceased person. When he arrived, he says, the deceased was in the house. He did not say anything when he entered the house. She was the only one who said (again corroborating what had been said by his son) “did you truly come into my house with your feet?” And according to him after that, ‘it just went like that and this accident happened’. He testified that he took the knife and stabbed the deceased, having taken it out of his pocket. As he said in cross-examination he took the knife out of his pocket, opened it and stabbed the deceased: first to the left shoulder blade and then just above the breast.
[12] In his testimony the accused stated that he stabbed the deceased twice. This clearly is not in conformity with the medical
evidence in the case which points to only one stab wound, but certainly corroborates the version of his son that he struck at the
deceased twice. He obviously is mistaken as to whether the first strike hit the deceased person. On his version his intention was not to kill. Later on in cross-examination he said that he did not know if he wanted to kill her. In his evidence also he stated that he normally uses the knife for barking trees, that the knife is sharp enough to kill an animal such as a goat or a dog, and that it can injure and kill a person. He also indicated that he had previously heard that others had been killed by stab wounds, that the human body is much softer than trees and that he would not allow his grandchild or a child of his to play with that knife as it may injure such child.
[13] The crisp issue I must determine in this trial is whether the accused was subjectively aware that the stabbing of the deceased in the manner that he did could cause her death: That he intended to cause her harm is not in dispute. That he intended to do so in revenge is equally not in dispute. He clearly was, on the evidence, also not acting in self-defence. He is a man of fairly advanced age
who, on the evidence, is aware, or knew, that the weapon (in the way that it has been used or the nature of the weapon used) is such that it can cause the death of a person. He aimed it at a very vulnerable part of the deceased’s body, and I can draw no other reasonable inference than that he subjectively knew that this weapon would cause the deceased’s death.
[14] There being no other lawful justification for the stabbing of the deceased causing her death I am satisfied beyond reasonable doubt that the State had proved that Gabriel Petrus, with dolus eventualis, caused the death of the deceased, and I accordingly find him guilty of murder with dolus eventualis.
DAMASEB, J.P.
ON BEHALF OF THE STATE Ms Miller
Instructed by: Office of the Prosecutor-General
ON BEHALF OF DEFENCE Ms Kishi
Instructed by: Legal Aid
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