REPORTABLE
CASE
NO.: CC 18/2010
IN
THE HIGH COURT OF NAMIBIA
In
the matter between:
THE
STATE
AND
MUUAMUHONA
KARIRAO
CORAM:
SHIVUTE,
J
Heard
on: 2010
November 22
Delivered
on: 2010
December 08
SENTENCE
SHIVUTE,
J: [1]
The accused person was convicted of the crimes of murder with direct
intent, robbery with aggravating circumstances and attempting or
obstructing to defeat the course of justice. Mr Muluti represented
the Accused on the instructions of the Directorate of Legal Aid while
Mr Eixab appeared on behalf of the State.
[2]
The Accused acting in common purpose with one Steve Kaseraera on 21
June 2006, in the district of Gobabis killed the deceased by shooting
him with a firearm on the chest whereby the deceased died instantly.
After they shot him they stole his motor vehicle containing the goods
as stated in Annexure "A" to the indictment. The value of
the goods stolen from the deceased was N$161,000.00. Thereafter they
removed the deceased's body from the scene with the intention to
defeat or obstruct the course of justice and dumped it at a certain
cattle post which is some kilometers away from the place where the
deceased was killed.
[3]
The State submitted that the accused is convicted of serious offences
which are prevalent and that they were premeditated. Therefore, the
court should impose a stiffer sentence appropriate in the
circumstances.
[4]
On the other hand, the accused person's personal circumstances were
placed before this court by his legal representative from the bar as
follows:
The
accused is 25 years old. He is single and a father of two minor
children aged between 6 - 7 years. The mother of his children is
unemployed and the children are living with the accused person's
mother who is also unemployed. The accused went to school up to grade
6. At the time of his arrest he was staying with his stepfather at a
farm where he and Steve Kaseraera looked after livestock. The accused
is a first offender. He has been in custody for about 4 years and 5
months awaiting his trial. It was further submitted that the accused
regrets the consequences of his actions emanating from his
association with Steve. He therefore apologized and asked for
forgiveness from the deceased's family and society in general.
[5]
It was again the counsel for defence's submission that the accused
did not benefit from the crime because all the goods that were robbed
from the deceased were recovered.
[6]
As far as the murder of the deceased is concerned, it was argued that
the accused did not pull the trigger. It was Steve who shot the
deceased, therefore the accused's role was a minor one and this
should be taken as a mitigating factor in his favour, so counsel
further submitted.
[7]
In deciding what a proper sentence should be, the court will consider
a triad of factors namely the offender; the crime and the interests
of society. At the same time regard must also be had to the
objectives of punishment namely prevention, deterrence,
rehabilitation and retribution. Although the court must endeavour to
strike a balance between these factors the circumstances of a case
might dictate that one or more of the factors must be emphasized at
the expense of the others. (S
v Van Wyk 1993
NR 426 at 448).
[8]
The personal circumstances of the offender play an important role and
must not be overlooked because, it is ultimately the accused that
must be punished for the crime committed. Because the personal
circumstances of people differ as well as the facts of each case
being unique sentences for similar offences will differ. S v
Tjiho 1991
NR 361 (HC).
[9]
The Court is also enjoined to consider the element of mercy. As this
court pointed out in S v
Strauss 1990
NR 71and I quote from the headnote:
"The
requirement of mercy in imposing an appropriate sentence does not
mean that the courts must be too weak or must hesitate to impose a
heavy sentence where it is justified by the circumstances. Another
factor in the imposition of an appropriate sentence is that of
individualization. It is the principle that in imposing sentence all
the relevant facts and the personal circumstances of the accused
which may distinguish one case from another must be taken into
account..."
[10]
As mentioned before, the accused is a first offender. At the time he
committed this offence he was 21 years old. He is now aged about 25.
The accused has been in custody awaiting trial for over 4 years.
Although it was submitted from the Bar by counsel for the defence
that the accused person was remorseful and that he apologized to the
deceased's family and members of the society, I did not hear the
accused expressing himself on those sentiments; he did not testify in
mitigation of sentence. It is therefore difficult to determine the
sincerity and genuineness of the alleged contrition and apology.
[11]
For a Court to consider remorse as a valid consideration "penitence
must be sincere and the accused must take the Court fully into his
confidence. Unless that happens the genuineness of contrition cannot
be determined". S v Seegers 1970
(2) SA
506
(A) at 511G-H.
[12]
The offences of murder, robbery with aggravating circumstances and
attempting to defeat or obstruct the course of justice for which the
accused stands convicted are undoubtedly very serious and fall in the
category of cases for which a lengthy term of imprisonment is called
for.
[13]
Although the accused may not have pulled the trigger of the gun that
killed the deceased, as it was found in the judgment on conviction,
he acted in concert with Steve Kaseraera. After the two had killed
the deceased they loaded the deceased's body in the motor vehicle,
drove together and dumped the body in a bush. The accused later on
drove the deceased's motor vehicle alone for about 145 kilometers and
abandoned it.
[14]
After giving due consideration to all the facts in this case and
principles regarding sentencing as stated above, it is my opinion
that the interests of society in this case outweigh the personal
circumstances of the accused. The deceased was apparently a lover of
nature who was killed in cold blood whilst minding his own business.
He was also providing a useful service that of mapping routes leading
to places of interest in our country, a service that is vital to the
tourist community. To say that his untimely demise is a big loss to
his family and the tourism sector is probably an understatement.
[15]
In the result the accused is sentenced as follows:
Count
1: Thirty (30) years imprisonment.
Count
2: Twenty (20) years imprisonment six (6) years of which are
suspended for five (5) years on condition that the accused is not
convicted of robbery with aggravating circumstances or any offence of
which violence is an element committed during the period of
suspension.
Count
3: One (1) year imprisonment.
The
sentence on count 3 is to run concurrently with the sentence on count
1.
SHIVUTE, J
ON
BEHALF OF THE STATE
Adv.
Eixab
Instructed
by: Office
of the Prosecutor-General
ON
BEHALF OF DEFENCE
Mr
Muluti
Instructed
by:
Directorate:
Legal Aid
S v Karirao (CC 18/2010) [2010] NAHC 199 (08 December 2010);