REPORTABLE

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK

SENTENCE

Case No: CC 21/2010

In the matter between:

THE STATE

and

HANGULA SIMSON
MWANYANGAPO

Neutral citation:
State v Mwanyangapo (CC 21/2010) [2012]

NAHCMD 96 (05 December
2012)

Coram: SHIVUTE, J

Heard: 14
November 2012

Delivered: 05
December 2012

Fly note: Conviction –
culpable homicide – no sentence can compensate –
deceased’s family - no prescribed sentence for culpable
homicide – sentences differ – depending on circumstances
– of each case – accused led clean record for 41 years –
had caused deceased’s death negligently – life not cheap

Summary: The accused
was convicted of culpable homicide for causing the death of Clarence
Aubrey Jash negligently by shooting him with a gun. The circumstances
of the case were that the accused was driving along the road at
Tseiblaagte, Keetmanshoop, when the accused met with the deceased.
The deceased wanted to attack the accused with a stone. Before the
deceased threw a stone the accused fired at him. The deceased was
struck on the leg. The deceased threw a stone at the accused and he
ducked. The accused hit the deceased on the head with a barrel of the
gun. The gun was cocked and his finger was in the trigger. The shot
went off and struck the deceased on the head. The accused thought
when the shot is fired it would go off in the air. The basis of the
accused’s defence was that he was acting in self defence, but
he had no intention to kill the deceased.

I am conscious that no
sentence will be imposed can compensate the deceased’s family
for the loss of their beloved one. No prescribed sentence for the
offence of culpable homicide. Sentences can differ depending on the
circumstances of each case. Although the accused had led a clean
record for 41 years, he had caused the death of the deceased
negligently and life is not cheap.

Sentence: 7 years’
imprisonment, 2 years of which is suspended for 5 years on condition
that the accused is not convicted of culpable homicide or any other
offence where violence is an element committed during the period of
suspension.

SENTENCE

SHIVUTE J:

[1] The accused was
convicted of culpable homicide for causing the death of Clarence
Aubrey Jash negligently by shooting him with a gun.

[2] The circumstances of
the case were that the accused was driving along the road at
Tseiblaagte, Keetmanshoop, when the accused met with the deceased.
The deceased wanted to attack the accused with a stone. Before the
deceased threw a stone the accused fired at him. The deceased was
struck on the leg. The deceased threw a stone at the accused and he
ducked. The accused hit the deceased on the head with a barrel of the
gun. The gun was cocked and his finger was in the trigger. The shot
went off and struck the deceased on the head. The accused thought
when the shot is fired it would go off in the air. The basis of the
accused’s defence was that he was acting in self defence, but
he had no intention to kill the deceased.

[3] I have listened to
what has been said on the accused’s behalf. The accused is 41
years old. He is unmarried with four children aged 21, 20, 14 years
and 1 month respectively. The accused was gainfully employed as a
heavy machine operator. He is the sole breadwinner who supports his
children and his extended family. He earns N$3000.00 per month. He is
able to pay a fine, the offence he committed was not premeditated. It
was submitted on behalf of the accused that he is remorseful. Counsel
for the state rightly pointed out that the court should not accept
the remorse to be genuine because the accused did not take the court
into confidence and express remorse himself.

[4] I have taken into
account all that was said on behalf of the accused. I am conscious
that no sentence will be imposed on the accused can compensate the
deceased’s family for the loss of their beloved one. There is
also no prescriped sentence for the offence of culpable homicide and
I am tasked to impose an appropriate sentence. Sentences can differ
depending on the circumstances of each case.

[5] In considering an
appropriate sentence I have to consider that the deceased was only
armed with a stone and he was in a drunken state. The accused shot
the deceased twice. Although the accused had led a clean record for
41 years, he had caused the death of the deceased negligently and
life is not cheap. Furthermore, counsel for the accused had asked for
a fine, but, I am of the view that a fine will not be appropriate in
the circumstances.

[6] In view of this, I
have decided to impose a sentence of 7 years’ imprisonment, 2
years of which is suspended for 5 years on condition that the accused
is not convicted of culpable homicide or any other offence where
violence is an element committed during the period of suspension.

----------------------------------

N N Shivute

Judge

APPEARANCES

STATE : Ms Ndlovu

Of Office of the
Prosecutor-General

Windhoek

ACCUSED: Mr Mcnally

Of Lentin, Botma &
Van den Heever

Keetmanshoop