“SPECIAL INTEREST”

CASE NO.: CA 111/2008

SUMMARY

AINACKEY SHIKESHO versus THE STATE

DAMASEB, JP et MANYARARA, AJ

13/10/2008

SENTENCING:

• Provocation and youthfulness are weighty mitigating factors. Trial Court’s over-emphasis of seriousness of offence at the expense of the youthfulness of the accused aggravated by the provocation by the complainant, a misdirection. Accused 20 years old when found guilty and sentenced for attempted murder. Sentence of 30 months partially suspended on conditions reversed and replaced with wholly suspended sentence.

• If trial Court inappropriately fails to take into account a factor relevant to sentencing, appeal Court entitled to interfere with sentence.

CASE NO: CA 111/2008

IN THE HIGH COURT OF NAMIBIA

In the matter between:

AINACKEY SHIKESHO APPELLANT

and

THE STATE RESPONDENT

CORAM: DAMASEB, JP et MANYARARA, AJ

Heard on: 13 October 2008

Delivered on: 13 October 2008

APPEAL JUDGMENT

DAMASEB, JP [1] This is an appeal against sentence only. The appellant was charged, and after trial, convicted in the district Court, Outapi, with attempted murder:

“In that upon or on the 25^th day of April 2007 and at or near Oyamuku Combined School … [she] did wrongfully and unlawfully assault Magano Uzombala by stabbing her with a knife with intent to murder her.”

[2] The learned magistrate had the following to say in his judgment on conviction about the severity of the stab wound:

“The medical report showed that the complainant sustained a stab wound which was about 3 centimetres on the right side of the chest.”

[3] When considering sentence, the learned magistrate said:

“In this case the accused used an okapi knife and directed it to the sensitive part of the complainant’s body, that is the chest. If the knife had gone deeper enough into the body, the complainant would have lost her life. The case is also serious because it was pre-planned. The accused brought the knife from home and hid in the trouser’s pocket and later stabbed the complainant.”

[4] The learned magistrate then sentenced the appellant to thirty months imprisonment of which eighteen (18) months were suspended on conditions for a period of 5 years. The Court also declared the okapi knife forfeited to the State. In imposing the sentence that he did the magistrate said:

“In this case … the interests of the community and the seriousness of the crime overshadow the personal circumstances of the accused.”

[5] Although it is true that the appellant took the conscious decision to carry a knife to school it is important to bear in mind that the use of the knife on the complainant was precipitated by the violent and provocative actions of the complainant. The complainant admitted that on the fateful day, she approached the appellant and when the latter refused to apologise, assaulted the appellant. The complainant in her evidence gave the impression that she had the right to assault the appellant and that those who tried to stop her were wrong in so doing. It is also clear that on an earlier occasion when the two had also fought, the complainant had told the appellant that she would fight the appellant again. The following exchange between the complainant and the appellant (when the appellant was cross-examining the complainant) is very telling about the attitude of the complainant:

Q: I stabbed you with a knife because the first day that you assaulted me you told me that the fight will not end up there and that is why I brought a knife because I did not know what you were going to bring from your house?

A: Yes, I said the fight will proceed because I was prevented from assaulting you by people from your house, they were supposed to leave me assaulting you until I felt satisfied.

Q: How do you feel as you are there?

A: Myself I was not satisfied because if I had been left by those people to continue assaulting you I could have satisfied myself and my anger could have ended there and you would not have had that chance to stab me.” (My underlining)

[6] That the appellant was under the apprehension that violence would be perpetrated on her by the complainant in the future was clear. One would of course have expected her to report the matter to the school authorities to see if the conduct of the complainant and her threat to fight the appellant, could have been arrested. That did not happen, but there can be no denying that the actions and words of the complainant were most reprehensible, provocative and threatening. The appellant certainly expected to be physically harmed in future by the complainant: The complainant initiated the assault on the appellant and was aggressive towards her. The appellant had the right to defend herself in a manner proportionate to the attack on her. The use of the knife was most disproportionate and the magistrate correctly rejected her defence of private defence.

[7] The magistrate in imposing sentence placed very little if no weight at all on the provocative actions of the complainant which led to the knife attack on her by the appellant. That young people react with less maturity and restraint of an adult is generally accepted and is a factor that ought to have weighed heavily in favour of the appellant. As DP van der Merwe correctly puts it in his book Sentencing (1998) at 5-20.

“…youth usually has the effect of lessening the quantum of punishment, because it is felt that the young offender does not have the same insights and powers of resistance to temptation which a more experienced person might have.’’

[8] An appeal court can interfere with a sentence imposed by the trial court “Where… the dictates of justice are such as clearly to make it appear to this Court that the trial Court ought to have had regard to certain factors and that it failed to do so, or that it ought to have assessed the value of these factors differently from what he did, then such action by the trial court will be regarded as a misdirection on its part entitling this court to consider the sentence afresh”: S v Fazzie 1964(4) SA 673 (A) at 684B-C.

[9] The magistrate’s over-emphasis of the seriousness of the offence at the expense of the youthfulness of the offender which was aggravated by the provocation of the complainant, in my view amounts to a misdirection which leaves this Court at large as to sentence.

[10] The appellant was 20 years old at the time she was found guilty and sentenced. She was repeating grade 10 at the time. Taking into account all the factors and circumstances in this case and without in any way detracting from the seriousness of the offence, a wholly suspended sentence would serve as a sufficient deterrent.

[11] The appeal against sentence succeeds and I accordingly make the following order:

(i) The sentence is set aside and is to be substituted as follows:

“The accused is sentenced to 30 months imprisonment, wholly suspended for 5 years on condition the accused is not found guilty of any of the following offences: assault, assault with intent to cause grievous bodily harm, or attempted murder committed during the period of suspension. The okapi knife is declared forfeited to the State.”

___________________

DAMASEB, JP

I agree

__________________

MANYARARA, AJ

ON BEHALF OF THE APPELLANT: MS F KISHI

INSTRUCTED BY: KISHI LEGAL PRACTITIONERS

ON BEHALF OF THE RESPONDENT: MR O SIBEYA

INSTRUCTED BY: OFFICE OF THE PROSECUTOR-GENERAL