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CASE NO.: CC 08/2009

IN THE HIGH COURT OF NAMIBIA

HELD AT OSHAKATI

In the matter between:

THE STATE

and

ERNST ELTON MUKUWE

CORAM: LIEBENBERG, J.

Heard on: August 09, 2010

Delivered on: August 12, 2010

SENTENCE

LIEBENBERG, J.: [1] The accused stands convicted on two charges of murder; rape (in contravention of s 2 (1)(a) of Act No. 8 of 2000); housebreaking with intent to commit an unknown crime and malicious damage to property; and lastly, a further charge of malicious damage to property.

[2] The State in aggravation of sentence called two witnesses namely, Gotlieb Tjitana and Sandy Tjitana, the son and grandchild of the deceased, Albertine Tjitana, respectively. Gotlieb said that although he misses the presence of his mother, he had forgiven the accused for what he had done for he was only human. Sandy, being the former girlfriend of the accused, was less forgiving and said that the accused committed serious crimes and should therefore not be forgiven.

Regarding her relationship with the accused she said that they were together from 2002 – 2005, during which period the accused was a police officer at Sesfontein. Although at first everything went well, things later changed as the accused would return home under the influence of alcohol and start accusing her of being unfaithful to him. On two occasions he became physical and bit her in the face, leaving permanent scars on her right cheek and eye. On five occasions he burnt her clothes in the past. According to her, every time she tried to lay charges against the accused, the station commander, Sergeant Fish, and her family, would sway her not to do so because of their relationship; and in fear of the accused losing his employment as a result thereof; leaving his children destitute. On the last occasion the accused signed an agreement dated 11 February 2005 according to which he undertook to compensate Sandy in the amount of N$5 000-00; which was never paid to her as a result of the accused’s arrest on 21 February 2005.

[3] The accused elected not to give evidence in mitigation and had no witness to call giving evidence on his behalf. The personal circumstances of the accused were therefore placed before the Court from the bar by Ms. Mainga and are the following:

The accused is 31 years of age and the father of three minor children aged 11 and 9 years respectively, and a baby of 2 months. The two elder children reside with the accused’s mother as their biological mother is unemployed. He supports his children financially. He holds the rank of constable in the Namibian Police and was to date on suspension with full pay since his arrest on 21 February 2005. His conviction will inevitably result in his dismissal and there are no prospects of re-employment in the near future. Before granted bail, the accused was in custody for three years and four months.

[4] In sentencing the Court must have regard to the personal circumstances of the offender; the crime committed by the accused, including the circumstances under which it took place; and the interests of society. Although each factor deserves proper consideration, it need not be given equal weight as the circumstances of a particular case may require that the one factor be emphasised at the expense of the other. This would usually happen in cases involving serious crime (S v Van Wyk 1993 NR 426 (HC)). At the same time the Court must be mindful of the objectives of punishment in its endeavour to strike a balance between the interests of the accused and the interests of society. It has been said that whatever the crime may be, it is the person who committed the crime that has to be punished and therefore the personal circumstances of the offender will play an important role and must not be ignored (S v Tjiho 1991 NR 361 (HC)). Whereas the accused would return to society after he had finished serving his sentence, it is important that the sentence imposed is adequate in the eyes of society; lest society might be reluctant in receiving the accused back in their midst or worse; may decide to take the law into their own hands. That underscores the importance of imposing an appropriate sentence; as society expects from the courts to uphold law and order and to protect its members against lawlessness.

[5] The crimes the accused stand convicted of are undoubtedly serious and top the list of serious crime. In the present instance within the space of one night the accused committed two murders; raped the one victim; broke into an office at the police station in order to obtain a firearm; and maliciously destroyed the personal belongings of his former girlfriend. I shudder by the thought of what could have happened had the accused succeeded in getting hold of a firearm as he planned on doing. On this rampage the accused took the lives of two innocent women sleeping in the safety of their homes. Neither of them had done him any harm; nor were they involved in the feud between the accused and Sandy’s family when his relationship with her broke up. Both were defenceless against the accused’s unexpected attack on them at night; which is evident from the fact that the elderly Albertine was found strangled, still lying in bed; whilst Eric, sleeping next to Sonja’s room, did not hear any cries of distress coming from her. His victims simply stood no chance against him.

[6] According to the medical evidence it would have required “intense force” to bruise the neck muscles of the deceased persons and both would have died within a few minutes’ time. Despite the evidence of the accused having been under the influence of alcohol on the night the crimes were committed, the result of the force applied to the deceased during the strangulation, respectively, is indicative, not only of the vulnerability of the victims, but also that the accused, despite his state of drunkenness, had sufficient power to exert substantial force to the neck of the victims, inflicting such injury. Bearing in mind that there is a connection between the commission of the respective crimes, it obviously required some planning in advance. That is confirmed by the accused’s statement to the police where he said that prior to the killings he broke into the office in order to take a pistol. He further stated that he only later on realised that he had killed the wrong person, whereafter he set out looking for Sandy, whom he actually intended killing. Whereas all this took place in darkness, the candle wax drippings found on the bodies of the deceased persons could only have been caused by the accused when discovering that he had killed the wrong person. That also required a degree of clear thinking, which certainly says something about his state of sobriety when committing the crimes.

[7] Although the accused started drinking in the afternoon and was seen to be drunk later in the evening, it must be borne in mind that he already during the afternoon or early evening told Constable Mukuaruuze that he would kill five people including himself. He made a similar statement to Sandy during his visit to her room at around 22:00; from which it can be inferred that he had entertained the idea for some time that day and gave effect thereto later that night or during the early hours of the following day. The planning included the use of a firearm and, judging from the manner in which the accused went about first trying to obtain the keys from his colleagues and eventually breaking into the charge office where the firearms were stored, this confirms the planning in advance of committing the crimes perpetrated by him that night. To a large extent it again required clear thinking on his part and tends to show that the accused was not as much under the influence of liquor as perceived by some of the witnesses. I am therefore not swayed by Ms. Mainga’s submission that the Court should find the accused’s state of drunkenness to be a mitigating factor in sentencing. There is, on the contrary, sufficient ground to find that, although the accused had been consuming alcohol earlier to the point where he appeared to be drunk, he was later in a state of mind where he planned the commission of the murders by using a firearm; he was thereafter sober enough to have full sexual intercourse with Sonja; able to exert sufficiently strong force to the necks of his victims, killing them by strangulation; and thereafter setting out to destroy the belongings of his former girlfriend by burning it. It would appear, as submitted by Mr. Wamambo, that the accused had revenge in his heart aimed at Sandy, his former girlfriend, and her family. Sandy’s rejection of his attempt to revive their relationship earlier that night seems to have triggered the accused’s unprecedented conduct.

The extent to which the accused planned the commission of these crimes is indeed an aggravating factor, weighing heavily with this Court.

[8] Another aggravating factor is that once again, the victims are women; the one being a young lady with her whole life lying ahead of her; the other, an elderly person who gave herself up to raising her two grandchildren. The accused had neither the right nor reason to draw these two innocent people into the feud with Sandy and bring an end to their lives for whatever reason. These were senseless and brutal murders against the vulnerable in society. No civilized community should have to tolerate barbaric conduct by those amongst them who have no respect for the rights of others and the sanctity of human life. Violent conduct can no longer be tolerated – more so against women and children – and by imposing heavier sentences, the courts must convey the message to prospective criminals that such conduct is unacceptable and will harshly be dealt with; whilst at the same time, showing to the public that the courts take a serious view in upholding the law in the community and the protection of its members.

[9] The requirements of our society demand that the callous murdering and raping of vulnerable people in society, as displayed in this case, should not be punished too leniently lest the administration of justice be brought in disrepute. The punishment should not only reflect the shock and indignation of the courts and interested persons and the community at large and so serve as a just retribution for the crime, but should also deter other potential criminals from similar conduct. In cases involving serious crime, the rehabilitation of the offender, as an objective of punishment, plays a subordinate role to that of deterrence and rehabilitation. In S v Mhlakaza and Another 1997 (1) SACR 515 (SCA) at 519a-e Harms JA said:

“Given the current levels of violence and serious crimes in this country, it seems proper that, in sentencing especially such crimes, the emphasis should be on retribution and deterrence. Retribution may even be decisive.”

Although this was stated in the South African context, we in Namibia, equally experience high levels of serious crime being committed against its citizens and despite stern warnings issued by the courts against those responsible for this unfortunate situation, it continues unabated.

[10] The incidence of serious crime currently experienced throughout this country has reached alarming proportions; something society (understandably I may say), is fed-up with. Women and children are raped in the safety of their own homes in all walks of life, with complete disregard for their age and vulnerability; they fall prey to unscrupulous criminals who act like they are above the law and who would not hesitate to take the lives of innocent victims for no or insignificant reasons. The voices of the masses are more often heard, calling for retribution in the form of harsher sentences. In casu, the community at Sesfontein staged a demonstration against the senseless killing of two of its own people; which demonstrates that the community in which these crimes were committed, not only have a direct interest in the outcome of this case, but that they are prepared to stand up against those who harm them by committing crime.

I am alive to the fact that public expectation is not synonymous with public interest and that the courts have a duty to serve public interest. However, in a case like the present, society expects that an accused be given a fair trial and once convicted, be punished after due consideration is given to the interests of the accused and the interests of society. I therefore endorse the sentiments expressed in S v Mhlakaza and Another (supra) at 518e-j:

“The object of sentencing is not to satisfy public opinion but to serve the public interest. (Compare Ashworth & Hough 'Sentencing and the Climate of Opinion' [1996] Crim LR at 776; S v Mafu 1992 (2) SACR 494 (A) at 496g-j.) A sentencing policy that caters predominantly or exclusively for public opinion is inherently flawed. It remains the court's duty to impose fearlessly an appropriate and fair sentence even if the sentence does not satisfy the public. In this context the approach expressed in S v Makwanyane and Another [1995] ZACC 3; 1995 (2) SACR 1 (CC) at 38-9, paras 87-9 (per Chaskalson P) applies mutatis mutandis: public opinion may have some relevance to the enquiry, but, in itself, it is no substitute for the duty vested in the court; the court cannot allow itself to be diverted from its duty to act as an independent arbiter by making choices on the basis that they will find favour with the public. That, in the words of Schreiner JA in R v Karg 1961 (1) SA 231 (A) at 236B-C, does not mean that it is

'wrong that the natural indignation of interested persons and of the community at large should receive some recognition in the sentences the courts impose, and it is not irrelevant to bear in mind that if sentences for serious crimes are too lenient, the administration of justice may fall into disrepute and injured persons may incline to take the law into their own hands'.

But, he added, 'righteous anger should not becloud judgment'. A similar point was made in Reg v Sargeant [1974] 60 Cr App Rep at 74:

‘… There is however another aspect of retribution … it is that society, through the courts, must show its abhorrence of particular types of crime … The courts do not have to reflect public opinion. On the other hand the courts must not disregard it. Perhaps the main duty of the court is to lead public opinion.’” (emphasis mine)

[11] Bearing in mind the manner in which the accused went about that night when committing these repulsive crimes, acting without any respect for law and order and with absolute disregard for the rights of others, he is indeed a threat to society. He is still young and should he be allowed to return to society at this stage, he most probably would again engage himself in a relationship with someone else. In the light of Sandy’s evidence that the accused assaulted her and burnt her clothes several times during their relationship, there is a need to protect society in future against the accused; at least until such time that he has reformed and learned to respect fellow human beings and their rights.

[12] The accused at the time of committing these crimes was a serving police officer; whose duties primarily were to uphold law and order and to protect and serve the community. He sadly failed in his duty and dishonoured the police force through this inexplicable conduct. I regard that to be aggravating.

[13] The accused has absolutely shown no remorse for the pain he had caused to the family of those he had killed – not before, during or after his conviction. The reason for this might be that he wishes to retain the option of an appeal at the end of the trial. Be that as it may, he demonstrated no remorse and it seems apposite to repeat what Maritz, J (as he then was) said in The State v Willem Swartz and Others, (unreported) Case No. CC 109/90 at p. 29:

“Real remorse for an injustice done to another must come from the heart and cannot be displaced by a desire to rather attempt in winning your freedom in an appeal. The sooner after the commission of a crime remorse is expressed and reparation steps are under taken, the more genuine the expression thereof will fall on the ears of the Court.”

In S v Seegers, 1970 (2) SA 506 (A) (a case often quoted in this Court with approval), it was said that remorse as an indicator that the accused will not commit the offence again, is an important consideration when considering the deterrent effect of the sentence to be imposed. The absence of remorse on the part of the accused, in circumstances where he committed such heinous crimes, tends to show the heartlessness of the criminal the Court is currently dealing with.

[14] The prescribed minimum sentence applicable to rape committed under circumstances involving the application of physical force to another person, is one of not less than ten years imprisonment (s 3 (1)(a)(ii) of Act 8 of 2000). Ms. Mainga submitted that in the light of the accused’s personal circumstances the Court should find substantial and compelling circumstances which justify the imposition of a lesser sentence.

Since S v Malgas 2001(1) SACR 469 (SCA) it is established law that in its determination whether the circumstances in a case of rape, where the accused is charged under statute, amount to ‘substantial and compelling,’ the court is under a duty to consider all the circumstances of the case, including the many factors traditionally taken into account when sentencing. To qualify as ‘substantial and compelling’ the circumstances need not be ‘exceptional’ or ‘seldom encountered’ or ‘rare’. Notwithstanding the statutory framework, the courts still have a substantial measure of judicial discretion in imposing sentence. (See also The State v Paul Uiseb (unreported) Case No. CC 38/2001 delivered on 2001.10.18; S v Fatyi 2001 (1) SACR 485 (SCA) para 5; S v Abrahams 2002 (1) SACR 116 (SCA) para 13.)

[15] When regard is had to the personal circumstances of the accused; as well as the circumstances under which he committed the rape and subsequent killing of his victim; I am unable to come to the conclusion that these constitute ‘substantial and compelling’ circumstances. The aggravating circumstances in this case by far outweigh the mitigating factors counting in the accused’s favour; despite him being a first offender. At the time of committing the rape, the accused had already decided to kill his victim – although only to discover thereafter that it involved the wrong person. Thus, he had put the killing on hold to, (for the last time), force himself upon his victim to satisfy his own sexual desires. I find that repulsive and shocking.

In reaching this conclusion the Court is mindful of the accused having been in custody awaiting trial for three years and four months. The existence of ‘substantial and compelling’ circumstances or otherwise will depend on the circumstances of the particular case; and although a lengthy period of detention of an accused awaiting trial may in itself amount to a ‘substantial and compelling’ circumstance in a particular case, it might not be found to have the same impact in another, due to the difference in circumstances. Although the period spent in custody by an accused awaiting finalisation of his or her trial has always been a weighty factor considered in favour of an accused when sentencing, and as such, is normally regarded as ‘substantial’, it does not, in my view, per se mean that it is ‘compelling.’ In other words, where a lengthy incarceration of an accused in one case, in itself, could constitute a ‘substantial and compelling circumstance’ justifying a lesser sentences, it might, due to the particular circumstances of another case, not have the same impact, due to aggravating factors weakening the effect thereof.

[16] This notwithstanding, it is trite that the period an accused spends in custody, especially if it is lengthy, as in the present case, is a factor which normally leads to a reduction in sentence. (See S v Sikweza 1974 (4) SA 732 (A); S v Banda and Others 1991 (2) SA 352 (BG) at 365; S v Matwa 2002 (2) SACR 350 (E); S v Kauzuu 2006 (1) NR 225 (HC) at 232F-H) I shall therefore take into account the period the accused had spent in custody and ameliorate the sentence(s) accordingly. In addition thereto the Court will also have regard to the cumulative effect of the different sentences imposed on each of the charges. Ms. Mainga invited the Court to take the charges together for sentence; alternatively, to order them to run concurrently.

[17] Although the Criminal Procedure Act No. 51 of 1977 does not provide that charges can be taken together for the purposes of sentencing, these are often taken together if the charges are closely related to each other i.e. where the charges are that of possession of a firearm and possession of matching ammunition; or where the crimes committed flow from the same act. The aforementioned criteria do not apply to the facts in casu and besides that, the Court is not in favour of joint sentences and respectfully share the view that separate sentences contribute to more correct sentencing. Should the cumulative effect of the respective sentences be too severe, it can be ordered in terms of s 280 of the Criminal Procedure Act to be served concurrently (See S v Young 1977 (1) SA 602 (A) at 610E-H; S v Immelman 1978 (3) SA 726 (A) and S v Koutandos and Another 2002 (1) SACR 219 (SCA).

[18] After due consideration was given to the above stated principles and with due regard to the interests of the accused and that of society, I am satisfied that it would be appropriate to impose lengthy custodial terms of imprisonment in respect of the more serious crimes and to ameliorate the effect thereof by making appropriate orders. Whilst acknowledging on the one hand the principle of individualisation, the Court, on the other hand, is mindful of other sentences imposed in this jurisdiction in similar cases; and will strive to adhere to the principle of uniformity (Gerhard Niiyoma v The State (unreported) delivered 1994.05.09).

[19] In the result, the accused is sentenced as follows:

1. Count 1 – Murder: 30 years imprisonment.

2. Count 2 – Murder: 30 years imprisonment.

3. Count 3 – Rape: 10 years imprisonment.

4. Count 4 – Housebreaking with intent to commit a crime unknown and Malicious damage to property: 3 years imprisonment.

5. Count 6 – Malicious damage to property: 1 year imprisonment.

In terms of s 280 (2) of Act 51 of 1977 it is ordered that;

• 15 years imprisonment imposed on Count 2 shall run concurrently with the sentence imposed on Count 1.

• 5 years imprisonment imposed on Count 3 shall run concurrently with the sentence imposed on Count 1.

• The sentences imposed on Counts 4 and 6 shall run concurrently with the sentence imposed on Count 1.

In effect the accused is to serve 50 years imprisonment.

[20] In addition it is ordered that Exhibit “1” be returned to the accused.

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LIEBENBERG, J

ON BEHALF OF THE STATE Mr. N.M. Wamambo

Instructed by: Office of the Prosecutor-General

ON BEHALF OF THE DEFENCE Ms. I Mainga

Instructed by: Kishi Legal Practitioners

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