REPUBLIC
OF NAMIBIA

 HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

SENTENCE

CASE
NO: CC 09/2013

DATE:
7 JUNE 2016

NOT
REPORTABLE

In
the matter between:

THE
STATE

Versus

PINIAS
KASHAWA................................................................................................................ACCUSED

Neutral
citation: S v Kashawa (CC 09/2013) [2016] NAHCMD 162 (07 June
2016)

CORAM
: SIBOLEKA J

Heard
on: 23 May 2016

Delivered
on: 07 June 2016

Flynote:
Criminal law: Sentence – multiple counts – cumulative
effect minimized by co-current serving order of sentences.

Summary:
The accused had earlier on broken into a house and stole a 7.65
mm pistol without being noticed by the sleeping occupants. He later
burgled two houses and used the weapon to rob the victims of several
valuables before he was shot and wounded in the leg by a police
officer. He was convicted on three counts of assault, two counts of
housebreaking with intent to steal and theft, two counts of rape,
pointing a firearm, two counts of attempted murder, illegal
possession of a firearm and ammunition.

SENTENCE

In
the result the accused is sentenced as follows:

WANAHEDA
– CR 539/04/2010

Count
9: Assault with intent to do grievous bodily harm:

Two
(2) years’ imprisonment;

Count
10: Housebreaking with intent to rob and robbery:

Six
(6) years’ imprisonment;

Count
12: Rape: Fifteen (15) years’ imprisonment;

Count
13: Rape: Fifteen (15) years’ imprisonment;

Count
14: Pointing a firearm: Two (2) years’ imprisonment;

Court
11 and 15: Assault by threat are taken together for purposes of
sentence: Four (4) months’ imprisonment.

WANAHEDA
– CR 540/04/2010

Count
16: Housebreaking with intent to rob and robbery:

Six
(6) years’ imprisonment;

Counts
17 and 18: Attempted murder taken together for purposes of sentence:

Six
(6) years’ imprisonment;

Count
19: Housebreaking with intent to steal and theft:

Four
(4) years’ imprisonment;

Counts
20 and 21: Possession of a firearm and Possession of ammunition are
taken together for purposes of sentence:

Six
(6) years’ imprisonment.

The
following order is made in terms of section 34(1)(b) of Act 51 of
1977 as amended: That the CZ 7.65 mm pistol serial no. 688194 with
magazine be returned to the rightful owner, Mr. Pius Heita.

In
terms of section 10(6) of the arms and ammunition Act 7 of 1996, the
accused is declared unfit to possess a firearm for a period of five
years which period will only take effect after he had finally served
the sentences imposed on him in this matter.

JUDGMENT
ON SENTENCE

SIBOLEKA
J

[1]
On 27 March 2016 I convicted the accused on the following counts of
the indictment: three counts of assault; two counts of housebreaking
with intent to rob and robbery; two counts of rape; pointing a
firearm; two counts of attempted murder; and illegal possession of a
firearm and ammunition.

[2]
It is now my duty to consider an appropriate sentence for him. In
doing that, I have to take into account his personal circumstances;
the crime itself and the interests of society. Closely associated to
the sentencing process are the objectives of punishment such as
prevention; retribution; reformative and deterrence. Caution must be
exercised so that one factor is not overemphasized at the expense of
the other. However, this result may sometimes be unavoidable due to
the circumstances of each case.

[3]
I will start with his personal circumstances.

[4]
The accused called his girlfriend, Suama Shikomba and his younger
brother Tobias Kashawa to give evidence in mitigation of sentence on
his behalf. He also mitigated under oath.

[4.1]
The accused is now 43 years old, he was 37 at the time of the
incident. He went up to Grade 7 in school at Ongolo in Ombalantu,
Omsati Region. Before his arrest he worked for a building contraction
company as well as putting interlocks for those who hired him. He
thereby maintained his four children and his girlfriend. His eldest
daughter with his girlfriend aged 16, other two girls aged 15, and a
boy aged 12 years respectively are from different ladies. Two
children resided with him and the other two with his mother in
Owambo.

[4.2]
The accused was arrested in April 2010 and has so far spent six years
one month and half in custody awaiting for the finalization of this
case. He urged the court to give him an option of a fine or a
suspended sentence. His erf in Havana is in arrears since nobody can
pay for it, that is why he is asking for a lighter sentence to enable
him to go back and look after his family.

[5]
Ms. Shipopyeni, the accused’s counsel urged the court to
consider the concurrent serving of various sentences and she
requested the following for the accused: Count 9: six (6) months
imprisonment; Counts 12 and 13 taken together for purposes of
sentence: Each N$4 000 or two (2) years imprisonment;

Count
14: N$4 000 or two (2) years imprisonment; Counts 20 and 21: one year
imprisonment each also made to run concurrently.

[6]
On his part Mr Kumalo, counsel for the prosecution described the
counts on which the accused has been convicted of as very serious.
His argument was based on the fact that the accused had a firearm
during the commission of all the offences. The homes of all the
victims were burgled and their privacy was exhibited, when he
sexually assaulted some of them.

[6.1]
He referred to several authorities in support of his contention that
the accused be sentenced as follows: fifteen (15) years on the counts
of rape without an order of concurrency; two (2) years for each
assault; five (5) years each for the aggravated robbery and
housebreaking charges; ten (10) years for the two attempted murder
charges; four (4) years each for the illegal possession of a firearm
and ammunition. Mr Kumalo further urged the court to declare the
accused unfit to possess a firearm for a period of ten (10) years.

[7]
On the crime the accused went on a housebreaking spree; burgling in
two houses during the night of the incident. He raped and robbed
others, others he only robbed, all at gun point. He narrowly missed
two of his victims, one of which was a police officer who came to the
rescue of the victims. These crimes were committed during the night,
the time the victims just like other people, were peacefully sleeping
in their homes.

[8]
On the interest of the community, it is common course that the
accused was intruding homes occupied by defenseless women and
children. The victims did not expect such disturbances from any
person during the middle of the night when everybody is supposed to
be asleep. It is here that the court must send a strong message to
would be offenders out there that breaking into people’s houses
and robbing them of their property would not be tolerated at all.

[8.1]
The first female victim did not even detect the breaking in. They
were alerted by the light of their house being switched on, and the
accused was standing there with a gun. He subjected them to his
directives which in the main entailed demanding for money which they
didn’t have.

[8.2]
Had it not been for the selfless brave police officer who went to
rescue the defenceless women victims by shooting at the accused in
the leg when he caught him in the act, his identity would have
remained an unresolved mystery to this day.

[9]
The accused did not show any remorse for what he has done. Although
he was caught in the act and the victims property found next to him
where he fell down and some in his pockets, he still testified during
mitigation that he has done nothing wrong. His last previous
conviction on housebreaking with intent to steal and theft was on 08
February 2006. In this incident, a firearm was also one of the items
he stole. This time around he stealthily broke into the first house
and took away a firearm undetected, which he later used to rob and
force his victims to submission and raped them.

[10]
In considering the appropriate sentence I have taken all the above
into consideration and in particular the six years he spent in
custody awaiting the finalization of the matter. However, the use of
the firearm during the robbery and sexual assault of some of the
victims as well as the number of the offences he committed on that
one night weigh heavily against him

[11]
In the result the accused is sentenced as follows:

WANAHEDA
– CR 539/04/2010

Count
9: Assault with intent to do grievous bodily harm:

Two
(2) years’ imprisonment;

Count
10: Housebreaking with intent to rob and robbery:

Six
(6) years’ imprisonment;

Count
12: Rape: Fifteen (15) years’ imprisonment;

Count
13: Rape: Fifteen (15) years’ imprisonment;

Count
14: Pointing a firearm: Two (2) years’ imprisonment;

Counts
11 and 15: Assault by threat are taken together for purposes of
sentence: Four (4) months’ imprisonment.

[12]
WANAHEDA – CR 540/04/2010

Count
16: Housebreaking with intent to rob and robbery:

Six
(6) years’ imprisonment;

Counts
17 and 18: Attempted murder taken together for purposes of sentence:

Six
(6) years’ imprisonment;

Count
19: Housebreaking with intent to steal and theft:

Four
(4) years’ imprisonment;

Counts
20 and 21: Possession of a firearm and Possession of ammunition are
taken together for purposes of sentence:

Six
(6) years’ imprisonment.

[13]
The following order is made in terms of section 34(1)(b) of Act 51 of
1977 as amended: That the CZ 7.65 mm pistol serial no. 688194 with
magazine be returned to the rightful owner, Mr. Pius Heita.

[14]
In terms of section 10(6) of the arms and ammunition Act 7 of 1996,
the accused is declared unfit to possess a firearm for a period of
five years which period will only take effect after he had finally
served the sentences imposed on him in this matter.

A
M SIBOLEKA

Judge

APPEARANCES

STATE
: Mr. P. S. Kumalo

Office
of the Prosecutor-General, Windhoek

ACCUSED
: Ms. F. K. Shipopyeni

Directorate
of Legal Aid