NOT
REPORTABLE

CASE NO.: CC 09/2011

IN
THE NORTHERN LOCAL DIVISION OF THE HIGH COURT OF NAMIBIA

HELD
AT OSHAKATI

In
the matter between:

THE
STATE

and

NDAWEDWA
IMMANUEL SHUUDENI ACCUSED

CORAM:
TOMMASI
J

Heard
on: 25 -26 July 2012; 3 & 7 August 2012

Delivered
on: 07 August 2012

SENTENCE

TOMMASI
J: [1] Mr
Shuudeni – the Court convicted you of two counts of murder,
attempted murder, contravening section 2 of Act 7 of 1996
(possessions of a fire-arm without a license); and contravening
section 33 of Act 7 of 1996 (possession of ammunition). The Court is
now called upon to impose a sentence. In doing so the Court has to
consider you, the offender, the nature of the crimes you have
committed; the interest of the society and the various objectives of
sentencing. It is the invidious task of this Court to try and
harmonize and balance these principles and apply them to the facts of
this case.¹

[2] You
have informed this Court that you are 45 years old. I have seen from
the records that you were 42 years at the time of your arrest and
that you have been in custody for two years and a little over 9
months. You confirmed that you are a first offender. You are able
to read and write a little bit and you attended school up to grade
two. You have worked at the farm Sihetekera for 17 years and were
made the foreman. This leadership position must have been entrusted
to you for good reasons. Your family resided with you on the farm.
It was not clear whether your family still resides at the farm or
whether they moved from the farm after your arrest.

[3] You
are married and your wife is 35 years old. You are the father of 9
children who are all still attending school. Your wife is unemployed
and you were the sole breadwinner. In addition to your own family
you also took care of your two siblings and their children. One of
your brothers who took care of your children died in a motor vehicle
accident. The Court takes cognizance of the fact that your family is
currently experiencing financial hardship and will continue to do so
if this Court imposes a custodial sentence. Your children are now
raised by a single parent who is unemployed and life must be very
hard for them and your wife. The financial hardship you family
suffers comes about not only because of your absence but also due to
the fact that your family had to compensate the victims’
families to the tune of N$16000.00. Your family members are as much
victims of the crimes you have committed as the families of the
deceased.

[4] As
much as I have empathy for the plight of your family and your concern
for their future, I cannot lose sight of the nature of the crime you
have committed and the interest of society. You have killed two men
execution style by shooting them in their chests. Hausiku’s
whose estimated age was 33 years was married to Maria Eino Cuse who
you attempted to kill but miraculously only wounded her on her elbow.
This was done for no apparent reason and the victims were unarmed.
You simply went to your room, collected the rifle and ammunition and
started shooting everyone who paid patronage to you informal beer
selling enterprise. Maria described the terror she felt when she was
shot. Hausiku was killed instantly whilst Angula succumbed to his
injury not far from where he was shot. This was cold blooded
killing.

[5] I
am not persuaded that you have genuine remorse for your actions. You
have indicated that you have remorse but in the same breath informed
the Court that the cause of all this was Hausiku. You failed to
accept that you were the one who had fired not only one but at least
three shots whereas Haufiku and Angula were unarmed. Maria was
standing right in front of you and you could not care less whether
the bullet struck her or not. You furthermore violated the trust the
owner of farm had placed in you to take care of her property in her
absence by removing the rifle and ammunition from the safety of her
house to your room.

[6] The
nature of the offences you have committed is indeed serious. Murder
has become common place. There is growing concern amongst members
of society that violent crimes are escalating and society feels
hopeless and vulnerable against the onslaught.

[7] I
take into consideration that you are a first offender. The fact that
you have offended for the first time in the 45 years is a factor
which weighs in your favour as does the fact that you have spent time
in custody awaiting trial. However the nature of the offence you have
now committed is so serious that your personal circumstances and
considerations of reform must give way for considerations of
deterrence and retribution. It would serve no purpose under these
circumstances to consider suspending a portion of the sentence. I
have not ignored some of your redeemable qualities as a human being
but I would be failing in my duty if the wrong message is sent by
imposing a sentence that is too lenient. The families of the
deceased and society have a legitimate expectation that the Courts
would exact retribution on their behalf and that a clear message must
be sent to those who contemplate resorting to violent crimes.

[8] Like
you, Hausiku was the sole breadwinner of his family and his wife
testified to this Court that his death has caused her and the
children to become destitute. Angula’s mother testified that
her son left her house to earn a living and to supported her and his
sisters. She still grieves the loss of her only son and I can
understand that she finds it hard to forgive you. Both Hausiku and
Angula were young productive members of this society taking care of
their families. What I do find quite surprising is that you under
these circumstances requested this Court to impose a fine. The only
appropriate sentence would be a lengthy custodial sentence.

[9]
In the premises you are sentenced as follow;

1. Count
1: Murder – 30 years imprisonment

2. Count 2: Murder - 30 years
imprisonment. It is ordered that 15 years of this sentence is to run
concurrently with the sentence imposed in count 1

3. Count 3: Attempted murder –
5 years imprisonment which is to run concurrently with the sentence
imposed in count 1

4. Count 4 and 5 are taken
together for purpose of sentence – 2 years imprisonment which
is to run concurrently with the sentence imposed in count 1.

5. In terms of section 10 (6)
of the Arms and Ammunition Act, Act 7 of 1996 the accused is declared
unfit to possess a firearm for a period of 5 years, which period will
only take effect after the accused had served the sentence imposed in
this case.

6. It is further ordered that
the fire-arm, the holster and 1 live bullet be returned to the lawful
owner and that the spent cartridges be forfeited to the State.

________________

Tommasi
J