CASE
NO.: CC 05/2011

IN THE HIGH COURT OF NAMIBIA

HELD AT OSHAKATI

In the matter between:

THE STATE

and

NAHUM DANIEL

CORAM: LIEBENBERG,
J.

Heard on: 23 November 2011

Delivered on: 25 November 2011

SENTENCE

LIEBENBERG,
J.:
[1] The accused is an forty-eight year old male and stands
convicted of the offence of murder, read with the provisions of the
Combating of Domestic Violence Act¹
in that he on 24 November 2008 killed his customary wife Hileni
Soodaha Thomas, by stabbing her with a knife. Despite pleading not
guilty to the charge the accused, at the end of a trial, was
convicted of murder on the basis of having acted with intent in the
form of dolus
eventualis.
The Court now has to pass sentence.

[2] It is trite
that in sentencing the courts have regard to the personal
circumstances of the offender, the crime committed and the
circumstances under which it took place, and the interests of
society. These factors are generally referred to as the triad.
The courts are simultaneously enjoined to consider the objectives of
punishment being prevention, deterrence, reformation and retribution
and must decide what punishment would best serve the interests of
justice. When coming to that conclusion, a balance must be struck
between the interests of the accused person and that of society. It
is a well-established principle that these factors need not be given
equal weight and one may be emphasised at the expense of the other.
This would usually be the case when it involves serious offences and
where the interests of justice dictate that in the circumstances of a
particular case, specific punishment must be meted out. The rule is
that: “Punishment
should fit the criminal as well as the crime, be fair to society, and
be blended with a measure of mercy according to the circumstances”.²
In determining an appropriate sentence the Court should not be
over-influenced by the seriousness of the type of sentence under
consideration and fail to properly consider other factors relevant to
sentence.³

[3] The accused’s
personal circumstances were placed before the Court from the Bar. He
was forty-five years of age when committing the offence and is a
first offender. The accused had no formal education and managed to
maintain the deceased and their six children of the proceeds he
generated from part-time work he did in their village repairing
fences and cultivation. Two of the children are deceased whilst the
eldest maintains herself financially. The one son has since dropped
out of school and now remains at home; whilst another has been taken
in by the neighbours who care for her. The youngest is currently
staying with the grandparents. These changes were necessitated by
the death of the deceased followed by the accused’s arrest and
subsequent incarceration for a period of fifteen months before he was
released on bail.

[4] The accused
committed the offence against his own wife whom he attacked with a
knife and stabbed her once on the external genitalia. According to
the medical evidence contained in the post-mortem report handed in,
it was a deep penetrating wound which ended up in the bladder. The
seriousness of the injury is evident from the deceased’s death
which ensued shortly after she sustained the injury. Whereas the
Court rejected the accused’s version of events which led to the
stabbing incident, it is not known what happened between the accused
and the deceased that culminated in her being stabbed and her
subsequent death. From the evidence it would appear that the
deceased was not armed as no weapon, other than that of the accused,
was found at or near the scene. It then seems reasonable to infer
that the deceased was a defenceless and vulnerable person making her
way home when attacked by her husband for reasons unknown. It was
submitted that it would appear that there was no motive for the
murder, however, there must have been a reason why the accused acted
in the manner he did. Had he taken the Court into his confidence,
there would not have been any uncertainty as to what circumstances
gave rise to the killing of the deceased. The accused was the
husband of the deceased and although the accused is unable to tell
for how long they had been together, he said it was for a
considerable period of time. Against this background the accused’s
behaviour that night becomes even more reprehensible; for instead of
being her protector, he became her attacker. Not only is he
responsible for ending an innocent and productive life, but he also
deprived their children – especially the young ones – of
the affection and care of their mother.

[5] These
factors, when considered together with the provisions of the
Combating of Domestic Violence Act, are indeed aggravating and must
reflect in the punishment to be imposed on the accused today. This
Court, in various judgments, have said that it views crime committed
in a domestic relationship in a serious light and would increasingly
impose heavier sentences in order to try and bring an end thereto.⁴
Unfortunately this trend in society seems to continue unabated. I
believe that the message to would-be offenders, who simply disregard
the rights of others and who treat their spouses or partners like
property belonging to them, must get the message loud and clear: That
the Courts will not shy from its duty to impose severe punishment in
deserving cases; and will not hesitate to remove from society, for
considerable periods of time, those persons making themselves guilty
of committing heinous crimes against others – more so when
these offences are committed within the family structure or what is
considered to be a domestic relationship.

[6] Murder in itself is considered
by the courts to be a serious offence and one which would normally
attract severe punishment. It is only in exceptional circumstances
that a custodial sentence would not be imposed. I do not consider
this case to fall in the latter category. Whereas the accused and
the deceased had been visiting the cuca shops since early that day
and enjoyed themselves in the drinking of tombo until late, there
seems to be a possibility that intoxication could have played a role
in the accused’s commission of the crime – despite his
denial of that possibility. Although it would, in the absence of
reliable evidence, be difficult to determine the extent it might have
impacted on the accused and lessened his moral blameworthiness, the
Court cannot ignore this possibility and therefore, should take it
into consideration as a mitigating factor when sentencing. However,
I do not think, in the circumstances of this case, that too much
weight can be given thereto as the accused, during his testimony
claimed that in his view he could walk properly and was not drunk.
Hence, limited weight should be given thereto.

[7] The circumstances under which
the crime was committed are relevant and in this instance a knife was
used against a defenceless person. The deceased was stabbed only
once on the genitalia and in order to inflict a penetrating wound as
described in the post-mortem report, undoubtedly would require
moderate force. Unfortunately there is no evidence before the Court
as to whether or not the deceased was stabbed through her clothes –
as one would expect to find in the circumstances – for that
would have required substantial force. Be that as it may, although
the assault was not directed to those parts of the body which
normally would be considered to be exceptionally vulnerable (such as
the head and upper body), the nature of the injury i.e. a penetrating
stab wound, is indeed such that it resulted in death shortly
thereafter. There could not have been any justifiable or acceptable
reason for the accused to use a knife against his wife – let
alone killing her. Any disagreement that may have arisen between the
two on their way home could have been sorted out amicably and the use
of a lethal weapon against a defenceless spouse/partner in these
circumstances bears testimony of disrespect and cowardice on the part
of the accused.

[8] The Court takes a serious view
of people resorting to the use of lethal weapons to settle scores –
more so in a domestic relationship – and in this case and many
others, lives are consequently lost unnecessarily. Unfortunately
that practice is prevalent all over Namibia and it must be
discouraged and the only way the courts can do that is by means of
passing stiff sentences. There can be no doubt that the minor
children of the accused and the deceased have already suffered
tremendously as a result of the deceased’s death; unfortunately
this situation will not improve in the near future due to the
punishment to be imposed on the accused today. These children have
to forgo the care and support they used to get from their parents –
not as a result of their doing. One cannot but feel deeply for the
children who now live apart and with different families under
different circumstances; regrettably, one cannot allow one’s
sympathy for them to deter one from imposing the kind of sentence
dictated by the interests of justice and society.

[9] Society justifiably expects that
the accused be punished for the crime he committed and in the
circumstances of this case a lengthy custodial sentence seems
inevitable. The accused is a first offender and had an unblemished
record for forty-five years before committing this offence. This is
indeed an important factor weighing in his favour in sentencing. It
does not appear to me that the accused is a threat to society and the
incident was clearly an isolated one. In these circumstances the
emphasis should fall on deterrence rather than prevention. I am
further of the view that this is a case where the Court should show
mercy in sentencing the accused and afford him the opportunity to
reform and again become part of society once he has served his
sentence.

[10] The period of about fifteen
months the accused has stayed in custody during the pre-trial stages
is taken into account when considering sentence and would lead to a
reduction in his sentence.

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

Twenty-three (23) years’
imprisonment of which five (5) years’ imprisonment is
suspended for a period of five (5) years on condition that the
accused is not convicted of the offences of murder or culpable
homicide (involving an assault), committed during the period of
suspension.

__________________________

LIEBENBERG, J

ON BEHALF OF THE ACCUSED
Mr. G. F. Bondai

Instructed by: Directorate:
Legal Aid

ON BEHALF OF THE STATE
Mr. D. M. Lisulo

Instructed by: Office of the
Prosecutor-General