NOT
REPORTABLE

CASE NO.: CC 06/2012

IN
THE NORTHERN DIVISION OF THE HIGH COURT OF NAMIBIA

HELD
AT OSHAKATI

In
the matter between:

THE
STATE

And

JOHANNES
PANDULENI EINO
....................................................................ACCUSED

CORAM:
TOMMASI
J

Heard
on: 1 & 7 August 2012

Delivered
on: 09 August 2012

SENTENCE

TOMMASI
J: [1]
The accused was convicted of assault and murder after having pleaded
guilty. For purpose of sentencing of both the counts were considered
in terms of the provisions of the Domestic Violence Act, 4 of 2003.
The Court now has to determine what would be a just sentence based on
the well established principles of considering the offender, the
nature of the offence and the interest of society whilst harmonizing
and balancing the aims and objectives of punishment.

[2]
The facts gleaned from the plea explanation and the warning statement
of the is accused are the following: The accused on 4 August 2011 at
around 10H00 visited a cuca
shop and drank tombo,
a traditional beer, until approximately 14H00. He then went to his
sister’s cuca
shop and
found his sister’s daughter serving drinks. He reprimanded his
niece for serving patrons drinks who had open wounds. When he wanted
to help himself to tombo,
his niece tried to stop him
and a struggle ensued. He put her between his legs and assaulted her
all over her body with open hands. His step brother came to the aid
of his niece and hit the accused to the ground. The accused got up
and walked home.

[3]
When he arrived at home he found his mother lying down at her resting
place. He told her what had happened at his sister’s cuca
shop. His mother was
unsympathetic and he retired to his room. In his room the accused
became angry and hurt by his mother’s stance. He went to fetch
an axe and returned to where she was resting. He hit her on her head
with the blunt part of an axe and left her lying there. He went to
another location where he was later arrested by the police. He made a
statement to the police and pointed out the weapon he had used in the
commission of the offence. His mother died as a result of the blow to
her head. Her temporal bone was fractured. The blunt force applied
clearly must have been severe to have caused an injury of this
magnitude.

[4]
The State called Johanna Kambonde, the sister of the accused, to
testify in aggravation. She testified that the accused caused trouble
in the household and in the surrounding area. Her mother was unable
to control the accused and was frequently called upon to pay
compensation to other members in the community for damages caused by
the accused. She testified that the accused was in the habit of
helping himself to the liquor in her cuca
shop and nobody could stop
him. Her mother had reported the conduct of the accused to the police
but nothing came of it. Her father had passed away and her mother was
the one who took care of them. Her siblings including the accused and
their children lived with the deceased who had provided for the
household from her meager pension allowance. The siblings contributed
to the household expenses whilst the accused who was unemployed, did
not contribute financially. Not only did they lose a mother who had
kept the household going with a pension allowance but the
grandchildren had lost their caretaker. She requested the Court to
send the accused to prison for life. She testified that the family
would be unable to forgive the accused and they feared for their own
lives.

[5]
The accused did not testify and his legal representative placed his
personal details before the Court. The accused was 35 years old at
the time of the commission of the offence. He completed grade 4 but
had to leave school due to lack of financial resources after his
father death. He worked as a labourer in Walvisbay and he financially
assisted his mother during that time. He lost his employment and
returned to his parental home. He was unemployed at the time the
incident occurred. The accused is not married and do not have any
children.

[6]
The accused’s actions on 4 August at his sister’s cuca
shop fit the
general description of his behavior given by his sister. The accused
who was under the influence of tombo,
went to his sister’s cuca
shop and caused his usual
trouble. When his niece resisted he used force to beat her into
submission in order to take the liquor. He was however unable to
access the liquor due to the beating he received at the hands of his
step brother. Having suffered a defeat at the hands of his step
brother, the accused went to look for sympathy from his mother. When
same was not forthcoming the accused felt sorry for himself and
decided to take out his frustration and anger on his 73 year old
mother who was defenseless against the fury of the accused who had
decided to end her life. She was in the safety of her own home and
had no reason to believe that her son posed a dangerous threat to her
life. She was completely at the mercy of her son who showed none and
who brutally bashed her head with an axe. The attack was cowardly and
savage.

[7]
The violence perpetrated against people within a domestic
relationship has taken on alarming proportions. Society is at a loss
to understand why family values have broken down to the extent that
the lives of vulnerable women and children are considered
meaningless. The Courts are left to deal with the aftermath of broken
down relationships. This Court on a regular basis view pictures
depicting the most horrendous murders committed by persons who are
supposed to love and care for one another. Women and children expect
the Courts to protect them as is the case herein. The strained
relationship that had already existed between the accused and his
family was exacerbated by the consumption of alcohol. It is not an
unknown or new fact that alcohol abuse is at the heart of almost all
the brutal crimes and abuse committed within a domestic relationship.
Perhaps the time has come to review the policy around the
unrestricted sale of alcohol in the area of this Court’s
jurisdiction. The reason for the accused to have assaulted his niece
and for him to have killed his mother is so trivial. As was correctly
pointed out by counsel for the State, it all centered on the
accused’s feelings of pity for himself and he had showed no
regard for the bodily integrity of his niece nor for life of his
mother and those who depend on her.

[8]
The accused is a first offender who had spent a year in custody
awaiting trial. It is generally accepted that time spent in custody
awaiting trial leads to a reduction of the sentence. The Court may
infer from the accused’s conduct after he was arrested that he
had shown some remorse for his actions as he had co-operated fully
with the police, admitted his guilt from the outset and pleaded
guilty before the Court. The Court takes cognizance of these
mitigating factors. The evidence presented in aggravation before the
Court however shows that the accused is by nature an aggressive and
self centered person. His personal circumstances have to be weighed
against the violent and brutal nature of the crime he committed and
the interest of society. Given the specific request by the family for
Court to protect them and the brutality of the crime, the Court has
to give less weight to considerations of reform and the personal
circumstances of the accused and place more emphasis on prevention,
deterrence and retribution in order to effectively discharge it’s
duty to protect vulnerable women against violence perpetrated by men
who live with them in a domestic relationship.

[9]
The Court was reminded by counsel for the defense that it should take
into consideration the human fallibility and he urged the Court to
show mercy. This I would do. I would however in conclusion refer to
the State v
Frans Basson,
an unreported judgement; Case no CC23/2010, delivered on 1 July 2011
where the Judge president stated that:

“Just as it is a judge’s duty
to show mercy to a convicted prisoner, it is equally important duty
of judges to protect society from the scourge of violence. The fact
that sentences we impose do not seem to deter would-be criminals
should not make us shirk from that responsibility. In my view, in
order to maintain a balance between the high violence against the
vulnerable, especially women and children, and society’s demand
for justice, very long terms of imprisonment for such crimes must be
the norm – only to be deviated from in exceptional
circumstances. If that were not the case, there is, I apprehend, a
real risk of vigilantism and lynch-justice if one listens to the
chorus of public despair at the incidence of violent crime in
Namibia.”

[10]
Having carefully weighed the mitigating factors against the
aggravating circumstances, having considered the accused, the offence
and the interest of society and having had regard to the aims and
objectives of punishment I am of the view that the following would be
a just sentence:

Count
1: Assault – 6 months imprisonment;

Count
2: Murder – 30 years imprisonment.

______________________

TOMMASI
J