S v Wilbard (5) (Sentence) (CC 40 of 2008)  NAHC 78 (29 July 2009);
 The accused has been convicted of two counts namely: Culpable homicide and Defeating or obstructing the course of justice. In respect of the first count he killed his wife by stabbing her with a walking stick on 10 June 2007 at Oshakati in the district of Oshakati thereby causing her death unlawfully and negligently.
In respect of the second count the accused on the 10 June 2007 at Oshakati in the district of Oshakati; unlawful and with intent to defeat or obstruct the cause of justice set alight the room in which the deceased was, causing her body to become charred, whereas such act was perpetrated whilst accused knew or foresaw the possibility that, his conduct may frustrate or interfere with the investigations into the death of the deceased and destroyed physical evidence of an assault perpetrated on the deceased.
 Mr. Uirab from Legal aid Directorate appears on behalf of the defence and Mr. Sibeya appears on behalf of the State.
 The accused elected to give evidence under oath in mitigation of sentence and called no witnesses. His personal circumstances are the following:
The accused is 49 years old with a previous conviction. He was formerly employed as a police; however, when this offence was committed he had already seized to be a police officer. He is a father of 9 children born by different mothers. Two of the 9 children were born by the deceased. The age of the children range from 18 to 5 years. He is not certain who is taking care of his children since his incarceration. The accused worked as a bus conductor before he was arrested and he maintained his children. It is his desire that if he is released from custody he would look for work and look after his children. The accused was arrested on 11 June 2007 and has been in custody for more than two years. His health is deteriorating since he was diagnosed HIV positive. He is now on medication and he visits the doctor every month for examination purposes. The accused is tormented by the fact that his wife had passed on; and disturbed by the fact that he is in custody. The accused continues to be tormented everyday by the thought of his wife’s death. He is willing to apologize to the mother of the deceased and he feels sorry for what happened as he did not plan to kill the deceased. The accused testified that he is remorseful and prayed for the court to exercise mercy on him.
 The accused when confronted through cross-examination when he last supported the two children he has with the deceased, he could not recall with certainty. He stated that he used to give things to his sister and the deceased to pass them on to the children.
 The State called Mrs. Beata Kandjeke the mother to the deceased to testify in respect of sentence. She stated that she has been living with the deceased’s children since one year after the accused and the deceased separated. The deceased used to support the children and now that she had passed on she is the only one who is looking after them. She disputed that the accused supported the children since she has been living with them. It is her testimony that the accused never apologized to her and the children concerning the death of the deceased, however, there is information that the accused wrote a letter to his congregation apologizing about the death of the deceased. It is her further testimony that she and the children are very much devastated by the deceased’s death.
 It was submitted on behalf of the accused that the accused showed remorse because he cooperated with the police; that he pleaded guilty in the district court; although the accused has previous convictions these were committed 10 years ago. The accused acted out of extreme provocation, the offence was not committed in a brutal or gruesome or horrific manner; the accused is suffering from a terminal disease being HIV positive, and that the accused regrets with regard to what happened, therefore the court should exercise mercy on him.
 On the other hand counsel for the state submitted that the accused has two previous convictions of assault with intent to do grievous bodily harm committed 9 years ago before these offences were committed, and not 10 years ago as suggested by the defence. These offences involve violence. Again, on the night preceding the death of the deceased, the accused had threatened to kill two of the state witnesses. There is also evidence that the accused used to fight with his wife, the deceased. It was further submitted by the state that the offences committed are very serious and prevalent, the actions of the accused clearly amount to domestic violence; and call for a harsh sentence.
As far as the accused’s HIV status is concerned Mr. Sibeya submitted that this claim is not supported by medical evidence, even assuming that the claim is true, “the courts have established that prison authorities have the responsibility to see to it that sick inmates receive appropriate medical attention and medicines. Therefore the court should not put too much weight to this circumstance”. S v Emmanuel Shapumba Mununga case no. CC 08/2004 at p12 -13. Concerning the defence’s submission that the actions of the accused were not gruesome, horrific or cruel, he submitted that to assault a defenseless woman with a stick and burning the house whilst her body was inside there is no other description then describing them as barbaric, horrific, cruel and inhuman.
 Both counsel referred the court to theories pertaining to sentencing as set out in S v Zinn 1969 (2) SA 537 (A) to wit preventative, reformative, deterrent and retributive. The court was also referred to other relevant authorities.
 In the process of determining an appropriate sentence the court is guided by well established and recognized principles as stated in the case of S v Zinn (supra). The court must consider the triad consisting of the crime, the offender and the interests of the society.
“As many cases of sentencing, the difficulty arises not so much from the general principles, applicable but from the complicated task of trying to harmonize and balance these principles and to apply them to the facts. The duty to harmonize and balance does not imply that equal weight or value must be given to different factors. Situations can arise where it is necessary. Indeed, it is often unavoidable to emphasize one at the expense of the other”. As per Ackerman A J A in State v Van wyk, 1992 (1) SACR at p 174, at 165 (1) Namibian supreme court decision.
 I agree with both counsel by submitting that the accused is convicted of serious offences, especially the fact that there has been loss of life, I am also in agreement with the authority cited by counsel for the state concerning the approach in sentencing for culpable homicide in S v Bohitile 2007 (1) NR 137 (HC) whereby the case of S v Nxumalo 1982 (3) SA 856 (A) was quoted with approval as per Corbelt J.A, (as he then was) at 861H-862B it was stated in the following terms:
“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 inevitable 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-emphasized 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”.
 The accused in this case was married to the deceased; the culpable homicide arose from the assault of the deceased in a domestic context. The accused assaulted the deceased twice with a stick despite his knowledge that the deceased was sick and that he would have foreseen the possibility that by stabbing the deceased she might die, and would have guarded against that possibility. After the accused killed the deceased, he proceeded to take the grass from the hut, took a bottle of paraffin and sprayed paraffin on the grass as well as inside the room; he set the grass alight and threw it inside the room causing the whole room to be completely destroyed and the body of the deceased to become charred. The accused completely destroyed physical evidence and this resulted in the police not conducting proper investigations regarding the death of the deceased. The object used to assault the deceased was also completely destroyed.
 Cases of violence against women and children are on the increase especially domestic violence committed against defenceless women. The defence claimed that the accused was extremely provoked due to the fact that the deceased failed to prepare food for him. How could the accused expect the deceased to cook if she was sick as he stated? Again the accused is crying foul that if he is sick it is the deceased who infected him. How on earth could he put the blame on the deceased of infecting him, if he himself, even during the subsistence of their marriage he had been having extra-marital affairs with different women which resulted in the birth of seven children.
 It is the opinion of this court that the accused did not act under the spur of the moment or under extreme provocation.
 Domestic violence is viewed in a serious light in Namibia this is confirmed by the enactment of the Combating of Domestic Violence Act, Act 4 of 2003. Therefore these types of crimes warrant deterrent sentences. This court is alive to the fact that each case must be decided on its own merit though.
 The court has considered all the personal circumstances of the accused as placed before it including the time he spent in custody before the finalization of this case. However, these personal circumstances should be balanced with the circumstances of the crimes which the accused committed and the interests of society, in arriving at an appropriate sentence.
 The prevalence of violence against women in domestic context and the interests of society outweigh the personal circumstances of the accused. Therefore, a deterrent sentence is called for, not only to deter the accused but would be offenders as well.
 As far as the accused’s state of health is concerned, this court is in agreement with the submissions by counsel for the state that prison authorities see to it that sick inmates receive appropriate medication and attention.
 Given all the circumstances regarding this case, the court is of the opinion that the following will be an appropriate sentence.
1st count: 10 years imprisonment.
2nd count: 3 years imprisonment.
The two sentences are to run concurrently.
ON BEHALF OF THE STATE Adv. O. Sibeya
Instructed by: Office of the Prosecutor-General
ON BEHALF OF DEFENCE Mr. B. Uirab
Instructed by: Directorate: Legal Aid