CASE NO.: CC 42/2008

IN THE HIGH COURT OF NAMIBIA

HELD IN OSHAKATI

In the matter between:

THE STATE

and

SHITAATALA VEIKO

CORAM:
LIEBENBERG, AJ

Heard on: 06
April 2009

Delivered on: 09
April 2009

SENTENCE

LIEBENBERG,
A.J.:

[1] The accused stands convicted of the offence of culpable
homicide in that he negligently caused the death of Wilbard
Ndeshipanda Angala on the 1^st
of July 2007 by firing a single shot with his 9 mm pistol into the
ground where after the bullet hit a corrugated iron; and from there
it ricocheted, hitting the deceased - being beyond that point. What
the exact position of the deceased was the time he was struck by the
bullet remains a mystery.

[2] In
considering what an appropriate sentence for the accused would be,
the Court takes into consideration those circumstances relating to
the offender; the crime committed and the interests of society,
coupled with a blend of mercy where appropriate. (S
v Zinn
1969 (2) SA 537 (A); S
v Rabie
1975 (4) SA 855 (A); S
v Tjiho
1991 NR 361; S
v Victor Musweu,
Case No.: CC 01/2007, an unreported judgment delivered on 17 October
2007)

[3] The Court at
the same time must endeavour through the sentence it imposes to
satisfy the objectives of punishment which are prevention,
deterrence, reformation and retribution. As it was stated in S
v Van Wyk
1993 NR 426 (HC) at 448 D-E, the difficulty in sentencing arises when
the court has to harmonise and balance these principles and apply
them to the facts; which does not imply that they are to be given
equal weight as situations can arise where it becomes necessary to
emphasise the one at the expense of the other. This obviously, will
depend on the circumstances of each case.

[4] The accused
testified in mitigation and his personal circumstances are the
following: Accused is 48 years old,
married and fathered three children whose ages are 20, 17 and 7 years
respectively. The mother of his children is not the person to whom
he is currently married and the two youngest children reside with
their biological mother while the eldest is a student at UNAM in
Oshakati. Accused makes financial contributions as per orders of
court towards the maintenance of the three children in the amount of
N$ 700 per month. Besides his own children the accused also
maintains his stepson aged 10 years; his sister and her child, the
latter staying at their parents’ house.

Accused since 2002
is employed with
the Namibian Defence Force (NDF) and is attached to the Presidential
Guard, earning a salary of N$ 3600 per month. It was submitted that
because of the accused’s specialised duties, the Court should not
declare the accused unfit to possess a firearm as this will have a
direct impact on his employment with the NDF.

Accused is also a
part time communal farmer and owns a total of 13 goats and 5 donkeys.
The deceased resided at the accused’s village home and amongst
other duties, also took care of his live stock.

Accused is a first
offender and told the Court that he felt very bad about what had
happened and accepts responsibility for his misdeed; which is evident
in his initial plea of guilty on the
same charge for which he was eventually convicted. Because he was
convicted it is custom that the family of the deceased will now claim
damages from the accused. This was confirmed by the accused’s wife
who testified in mitigation. She is unemployed and has two children
of her own, the oldest of school going age and she confirmed that the
accused was maintaining this child as the biological father had
passed away.

[5] The crime of
culpable homicide is indeed very serious in that the death of a
person, in this instance a boy aged 19 years, had been caused by the
accused. I respectfully agree, when sentencing for culpable
homicide, with the approach followed in Nxumalo
v The State,
1982 (3) SA 856 (A) at 861 H – 862 B where Corbett JA (as he then
was) said:

“It
seems to me that in determining an appropriate sentence in such cases
the basic criterion to which the Court must have regard is the degree
of culpability or blameworthiness exhibited by the accused in
committing the negligent act.
Relevant to such culpability or blameworthiness would be the extent
of the accused’s deviation from the norms of reasonable conduct in
the circumstances and the foreseeability of the consequences of the
accused’s negligence. At the same time the actual consequences of
the accused’s negligence cannot be disregarded. If they have been
serious and particularly if the accused’s negligence has resulted
in serious injury to others or loss of life, such consequences will
almost inevitably constitute an aggravating factor, warranting a more
severe sentence than might otherwise have been imposed.

It
is here that the deterrent purpose in sentencing comes to the fore.
Nevertheless, this factor, though relevant and important, should not
be over-emphasised or be allowed to obscure the true nature and
extent of the accused’s culpability. As always in cases of
sentencing, where different and sometimes warring factors come into
play, it is necessary to strike a balance which will do justice to
both the accused himself and the interests of society.”

I will adopt this
approach when considering
the present facts.

[6] Accused
testified that he was trained in the use of firearms years back and
being a member of the Namibian Defence Force he handles firearms on a
daily basis, albeit not being the same weapon he had used in the
commission of this crime. It then seems reasonable to accept that
the accused is not only familiar with the use of firearms, but also
with the standard safety measures applicable to the handling of
firearms. In view thereof the accused materially deviated from the
norms of reasonable conduct to be expected from a person with his
training and experience, by negligently discharging a firearm in
circumstances where other persons were present. As regards the
foreseeability of the consequences of his negligent conduct the Court
is satisfied that the accused in those circumstances simply did not
foresee that he would fatally wound another, least of all, that it
would be from a ricocheting bullet; hence his surprise when his wife
reported that he had shot a child. This, in my view, reduces the
degree of culpability or blameworthiness on the part of the accused
substantially. However, the Court should not lose sight of the
actual consequences of the accused’s negligent act where a young
man aged 19 years, who almost had his whole life still lying ahead of
him, had it taken away from him without him contributing thereto in
any way.

[7] The
seriousness of the crime dictates that the accused be punished for
the wrong he has done and although the element of retribution should
not be over-emphasised, it can neither be ignored. In S
v Ndlovu
1969 (2) SA 23 (R) it was said:

“The
object of punishment is to hurt him sufficiently to prevent him from
committing a similar offence.”

From the side of
the offender retribution amounts to the atonement for the crime he
has committed while from the side of the community, it amounts to an
“emphatic
denunciation”
of the offender and his crime and the infliction of pain to the
degree he deserves. What the “degree
of pain”
should be will obviously depend on the circumstances of each case and
it need not necessarily be in the form of a custodial sentence; just
as long as he pays his dues to society.

[8] Although this
case is distinguishable from the run-of-the-mill murder and culpable
homicide cases dealt with in our courts on a daily basis, it remains
necessary to impose a sentence that will deter the accused from again
committing a similar offence; while at the same time members of
society are made aware of the sentence imposed for this type of crime
and are thereby deterred.

[9] Ms. Ndalulilwa,
appearing for the accused, submitted that the circumstances of this
case is such that the Court should impose a fine while Mr. Shileka
for the State, submitted that the seriousness of the offence dictates
that a custodial sentence be imposed. The seriousness of the crime
indeed weighs heavily against the accused but the circumstances in
which the crime was committed cannot be ignored and as was stated
earlier, it substantially diminishes the moral blameworthiness of the
accused. Punishments in the form of lengthy custodial sentences were
imposed by our courts in the past where it was appropriate to do so,
but fines were equally imposed in many instances where the
circumstances did not require the offender to be sent to gaol. In
the latter instances the courts were satisfied that the objectives of
punishment could be achieved without having to resort to the
imposition of custodial sentences, while at the same time, satisfying
the interests of justice and society.

[10] In my view
the present case is such an instance where deterrence as an objective
of punishment, will sufficiently come to the fore by imposing a stiff
fine on the accused instead of sending him to prison. I do not find
it to be in the interest of society to send a productive citizen,
from whom a number of people are dependent to make a living, to
prison, where the circumstances surrounding the commission of the
crime, although serious, are mitigating and do not require such
action. The facts of this case simply do not justify the imposition
of a custodial sentence.

[11] Accused
testified on his financial means and other than his bail money

of N$
2000 he has nothing more to pay for a fine. He therefore urged the
Court to defer any fine to be imposed on him. Having decided to
afford the accused the opportunity to pay a fine, thereby escaping a
custodial sentence, it seems meaningless not to allow him time to
find sufficient funds to pay the court fine. There should however be
limitations thereto, otherwise the sentence will not sufficiently
punish the accused for the wrong he has done.

[12] Regarding
the State’s application to have the accused declared unfit to
possess a firearm under section 10 (6) of the Arms and Ammunition
Act, Act 7 of 1996 the Court after due consideration, has come to the
conclusion that given the personal circumstances of the accused, as
well as the circumstances in which the crime was committed, that the
Court should exercise its discretion and decline making an order
declaring the accused unfit to possess a firearm under the act.

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

1. 
   N$ 15 000 or 3
   years imprisonment plus 3 years imprisonment, which imprisonment is
   suspended for 5 years on condition that the accused is not convicted
   of murder or culpable homicide, involving an assault, committed
   during the period of suspension.

   
   

2. 
   Payment of the fine is deferred as
   follows:

   
   
   
   

   1. 
      N$ 2000 to be paid on or before 15
      April 2009;

      
      

   2. 
      The balance of N$ 13 000 to be paid
      on or before 01 June 2009.

      
      
   
   

3. 
   Accused to report himself today to
   the Registrar (Oshakati) and submit his personal particulars.

   
   

__________________________

LIEBENBERG, A.J.

ON BEHALF OF THE STATE
Adv. R. Shileka

Instructed by: Office
of the Prosecutor-General

ON BEHALF OF DEFENCE Ms.
E.T. Ndalulilwa

Instructed by:
Lorentz
Angula Inc.