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REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI

SENTENCE

Case no: CC 01/2014

DATE: 22 JUNE 2016

THE STATE

And

PITER MARKUS SHEETEKELA SHILUMBUACCUSED

Neutral citation: State v Shilumbu (CC 01/2010) [2016] NAHCNLD 44 (22 June 2016)

Coram: TOMMASI J

Heard: 26 April 2016

Delivered: 22 June 2016

Flynote: Criminal Procedure – Sentence – Violent conduct should be met with deterrent sentences – Circumstances under which the offence was committed – The deceased the initial aggressor – Circumstances mitigating the moral blameworthiness of the accused – Lengthy pre-trial incarceration generally calls for a reduction in sentence.

Summary: The accused found guilty of murder with dolus eventualis as the form of intent. He stabbed the deceased twice after a verbal and physical altercation with the deceased.  The accused had been detained for almost five years after his arrest and the court found that the circumstances surrounding the commission of the offence mitigated the moral blameworthiness of the offence.

ORDER

1. The accused is sentenced to 15 years’ imprisonment of which three years’ imprisonment are suspended for a period of five years on condition that the accused is not convicted of an offence of which violence is an element committed during the period of suspension

SENTENCE

TOMMASI J:

[1] The accused is convicted of murder with dolus eventualis as the form of intent and it is now the court’s duty to determine an appropriate sentence.

[2] The accused stabbed the deceased twice outside a bar after they had a fight (verbally and physical) over money placed in a slot machine. The deceased was the initial aggressor and the court found that the accused, although he defended himself, exceeded the boundaries of self-defence.

[3] The deceased’s aunt testified in aggravation and informed the court that she raised him from the age of three as his biological mother (her sister) is not mentally stable and is living in Windhoek.  According to her he was employed at a crop-farming project, was not married and had no children. He supported her and she testified that his death left a big gap. She testified that the family of the accused paid compensation in the sum of N$10 000 to the deceased’s family in accordance with tradition, and they also contributed N$1000 toward the funeral costs. This, she explained, was paid traditionally in order to keep the peace between families. She admitted during cross-examination that the apology (compensation) was accepted. She however felt that the accused should be kept in custody and not be allowed to come out of prison. The post mortem report reflects that the deceased was 24 years old at the time.

[4] The accused is 33 years old and a first offender. He used to do casual labour such as building huts and clearing fields. He has a child who was just 3 months old when he was arrested on 4 October 2011. He has been in custody since. When asked how he felt about causing the death of the deceased he indicated that he did not want to talk about it. He knew nothing about the compensation which his family paid as his family members do not visit him in prison. During cross examination he indicated that he wanted to ask for forgiveness but in re-examination insisted that he did not do anything wrong.

[5] It is trite that the court, when considering an appropriate sentence, consider the crime, the offender and the interest of society. The court must bear in mind the objectives of punishment. This is no easy task to balance the various interests. The aunt’s plea to the court to avenge the death of her nephew by keeping the accused locked up indefinitely must be considered against the circumstances und which the offence was committed and the personal circumstances of the accused. It is important that the court considers retribution but at the same time the court must endeavour to individualise sentence and be fair to the accused whilst at the same time protect the interest of society. I was reminded by Ms Amupolo of the following citation in S v V 1972 (3) SA 611 (A) by Homes JA, Page614, D-E : “The element of mercy, a hallmark of civilised and enlightened administration, should not be overlooked, lest the Court be in danger of reducing itself to the plane  of the criminal; … True mercy has nothing in common with soft weakness, or maudlin sympathy for the criminal, or permissive tolerance. It is an element of justice itself. As was said by this Court in S v Harrison,  1970 (3) SA 684 (AD) at p. 686A:

'Justice must be done; but mercy, not a sledge-hammer, is its concomitant.'”

[6] It is common cause that the accused has been in custody for a period of almost five years and that ought to lead to a reduction in the sentence which the court intend to impose. “It is trite that the period an accused spends in custody, especially if it is lengthy, is a factor which normally leads to a reduction in sentence.”[1] In this case the pre-trial incarceration can be considered as lengthy.

[7] The accused was productive member of society who is required to maintain his minor child. He does not appear to be well educated. He however has shown no remorse for having cut short the life of a young man in the prime of his life. The personal circumstances of the accused are not extraordinary save for the fact that he is a first offender which factor carries considerable weight in mitigation.

[8] The court must look at the circumstances of the offence to determine the moral blameworthiness of the accused. It is indeed so that the deceased was the initial aggressor and that the accused and the deceased were involved in a fight. The accused drew his knife on an unarmed deceased and stabbed the deceased twice on vulnerable areas of the deceased’s body. This led the court to conclude that he had exceeded the boundaries of self-defence. The accused was playing on the slot machines when the deceased inserted his coin into the slot machine. The deceased was the first to resort to violence in response to the accused’s verbal insults. The fact however that the deceased was to some extent the author of his own misfortune, lessens the moral blameworthiness of the accused. Whilst it is indeed so that the accused started out defending himself, he exceed the boundaries by stabbing the deceased not only once but twice. The court cannot ignore his violent response to a fist fight.

[9] The use of knives and pangas to inflict fatal injuries are commonplace in this jurisdiction. Small and insignificant disputes are settled with knives, pangas and knobkieries and the community has grown weary of senseless violence. The court in S v Shipanga[2] referred to the following citation in S v Msimanga en 'n Ander[3]:

'Violent conduct in any form is no longer to be tolerated, and courts, by imposing heavier sentences, convey the message, on the one hand, to prospective criminals that such conduct is unacceptable and, on the other hand, to the public that the courts take seriously the restoration and maintenance of safe living conditions. Deterrence is the over-arching and general purpose of punishment. Since no civilised community should have to tolerate barbaric conduct, in cases of crime in particular the deterrence and retribution aims of punishment are to be preferred over those of prevention and rehabilitation which in such cases play a subordinate role.' Society expects the courts to protect them do deal harshly with perpetrators of violence”

I must hasten to add that in both these cases the accused carefully planned robberies and executed it under aggravating circumstances. It differs from the circumstances under which this offence was committed but the sentiments expressed therein finds application in all cases of senseless violence. The community expects the courts to send a strong message for violent conduct perpetrated at cuca shops and bars will not be tolerated.

[10] Having considered all the mitigating and aggravating factors, the circumstances under which the offence was committed and the objectives of punishment I am of the view that the following would be an appropriate sentence:

1. The accused is sentenced to 15 years’ imprisonment of which three years are suspended for a period of five years on condition that the accused is not convicted of an offence of which violence is an element committed during the period of suspension.

MA TOMMASI

Judge

APPEARANCES

The State: Adv Wamambo

Office of the Prosecutor-General

Accused: Ms Amupolo

Legal Aid- Magistrate Oshakati

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