REPUBLIC
OF NAMIBIA
CASE NO. CC
27/2010
IN THE HIGH
COURT OF NAMIBIA
In the matter
between:
THE STATE
and
AXAROB
BASSON
CORAM: SHIVUTE,
J
Heard on:
2011 February 24, March 02
Delivered on: 2011
April 12
___________________________________________________________________________
SENTENCE
SHIVUTE, J:
[1] The accused was arraigned on an indictment containing two
counts, being count 1: murder with direct intent and count 2:
housebreaking with intent to contravene section 2(1) (a) – Rape
and contravening section 2(1) (a), read with sections 1, 2, (2) and 3
of the Combating of Rape Act, 2000 (Act 8 of 2000) – Rape.
Upon his own plea of guilty, he was convicted accordingly.
[2] Ms Wantenaar
appears for the State and Mr Tjituri appears for the accused on the
instructions of the Directorate of Legal Aid.
[3] In order to
understand this matter fully, I deem it necessary to summarise the
facts as contained in the accused’s statement made pursuant to
the provisions of section 112 (2) of the Criminal Procedure Act, 1977
(Act 51 of 1977).
[4] The accused
was in the company of the deceased together with other two persons at
a farm house during the early night of the date of the incident.
Whilst at the farm house, he propositioned the deceased which
proposal she declined. The accused left the farm house but returned
at a later stage. He stripped naked to blend
in with the darkness of the night. He broke into the house where the
deceased was sleeping by passing through a partially open window
which he opened widely to enable him to enter. The accused walked to
the deceased’s room and tried to open the door but it was
locked. The deceased was awoken by the accused’s movements and
so she emerged from the room to investigate. The accused went to
hide in the kitchen to avoid detection. As the deceased came closer
to the place where the accused was hiding, the accused pulled a
pocket knife and stabbed her on the back for about seven times. The
deceased fell down and bled profusely. The accused started to have
sexual intercourse with her and when he had finished, he left her to
die. He went to the bush where he spent a few nights before he was
arrested.
[5] The accused
did not testify in mitigation of sentence. However, his personal
circumstances were placed before this Court by his legal
representative. The accused is 47 years old. He is a first offender
who was employed for 8 years at the farm where the offences were
committed. He is unmarried without children. No previous
convictions were proved against him.
[6] It was
submitted on behalf of the accused that, the accused is remorseful of
his actions and this could be supported by the fact that he pleaded
guilty to both charges. Therefore, so it was further submitted, the
Court should consider it as a mitigating factor in his favour. As
for the sentence in connection with the 2nd count, counsel
for the accused fairly submitted that there were no compelling and
substantial circumstances for the Court to deviate from imposing a
mandatory sentence as prescribed by the Combating of the Rape Act.
Counsel, however, prayed that the Court should impose a sentence on
the 2nd Count which would run concurrently with the
sentence to be imposed on the 1st count. The reason for
this proposition being that if the accused was sentenced to a
mandatory sentence of 15 years’ imprisonment on the 2nd
Count and if he is sentenced to 30 or more years’ imprisonment
on the 1st Count the cumulative sentence would amount to
about 50 years’ imprisonment. The South African case of S v
M 1993 (1) SACR 126 at 129 was further cited in this respect.
[7] The facts of
the S v M (supra) are that, the Appellant was convicted in the
Cape Provincial Division of housebreaking with intent to rob (count
1), robbery with aggravating circumstances (count 2) and two Counts
of rape (counts 3 and 4). The trial Judge took the counts of
housebreaking and robbery together for the purposes of sentence and
imposed a sentence of 7 years’ imprisonment. On the counts of
rape he was sentenced to 15 years on count 3 and 23 years’
imprisonment on count 4. The sentence on counts 1, 2 and 4 were
ordered to run concurrently with the sentence on count 3. He further
ordered that three years of the 23 years’ imprisonment should
run concurrently with the sentence of 5 years’ imprisonment the
accused was already serving. On appeal it was argued on behalf of
the Appellant that the total cumulative sentence of 29 years and half
imprisonment imposed on the Appellant were excessively severe and
inappropriate in the circumstances. The appellate court held that
the sentence of 23 years’ imprisonment imposed on counts 3 was
excessive for various reasons namely; that the complainant in that
count did not sustain physical injuries, she was to some extent
coping with the trauma; the rape in count 3 was not much worse than
the rape in count 4 committed in respect of the daughter of the
complainant on count 3 committed in similar circumstances. The Court
was further of the opinion that a sentence of 15 years’
imprisonment would be sufficed in respect of each count of rape.
[8] Counsel for
the State argued that the accused was convicted of serious offences.
The accused broke into the house where he knew that the deceased
would spend the night alone with a young child. The accused planned
to carry out his actions and he succeeded to achieve his objectives.
He did not have any mercy on the deceased despite the fact that the
deceased grew up with him at the farm. The deceased was 20 years old
at the time she met her death. The mere fact that he pleaded guilty
does not in itself mean that the accused was remorseful. He might
have been influenced by other factors such as the overwhelming
strength of the State case. She urged the Court to take cognisance
of escalating crime rate involving violence against women and the
Court not to lose sight of the fact that two separate crimes were
committed. Counsel for the State further argued against the sentence
to run concurrently. She referred the Court to the matter of Gerson
Tjivera v The State SA 14/2003 at 6 (unreported) delivered on
16/12/2004.
[9] I have
considered the personal circumstances of the accused. Although the
accused pleaded guilty to the two counts contained in the indictment,
the offences he committed are very serious indeed. I have further
considered the matter of S v M supra referred to by counsel
for the defence. The case referred to is distinguishable from the
present case. Its facts should be confined to it. In the instant
case the deceased was not only raped, but she was also deprived of
her precious life. The deceased was brutally killed as the accused
has described in graphic detail. The post mortem report shows that
the deceased was stabbed 7 times. The weapon was directed to the
chest and abdomen where it was bound to cause serious injury at these
sensitive parts of the body as it has indeed done so, resulting in
the deceased’s untimely demise. The accused’s conduct
was premeditated as it was calculated. The deceased who was still in
the prime of her life, met a terrible death at the hands of the
person who knew her well. Although it was submitted that the accused
was remorseful for his actions, the Court could only attach weight to
that submission if the accused himself had expressed the sentiment
from the witness stand where his sincerity and conviction in the
making of that claim could be tested through cross-examination. I
have further considered the matter of Gerson Tjivera v The State
(supra) referred to me by the State when counsel rightly, in
my view, argued against the sentence to be imposed on the 2nd
count to run concurrently with the sentence on the 1st
count.
[10] Having
considered the personal circumstances of the accused; the seriousness
of crimes; the circumstances under which the offences were committed;
the fact that the accused pleaded guilty to the charges and that he
was a first offender, I am of the opinion that the accused’s
personal circumstances are by far outweighed by the magnitude of the
crimes committed. I am accordingly of the firm view that the
interests of society demand that he be removed from society for a
long time.
[11] In the
result, I consider the following sentence to be appropriate in the
circumstances:
1st
Count : Thirty (30) years’ imprisonment.
2nd
Count : Fifteen (15) years’ imprisonment.
________________________
SHIVUTE, J
Appearance for
the parties:
For the State:
Mrs B Wantenaar
Instructed by:
Office of the
Prosecutor-General
For the accused:
Mr Tjituri
Instructed by:
Directorate of Legal Aid
S v Basson (CC 27/2010) [2011] NAHC 113 (12 April 2011);