CASE NO.: CC 40/2008
IN THE HIGH COURT OF NAMIBIA
HELD IN OSHAKATI
In the matter between:
THE STATE
and
MATHEUS AMBUNDA WILBARD
CORAM:
SHIVUTE, A.J.
Heard on: 15.06.2009 - 26.06.2009 &
27.07.2009 - 28.07.2009
Delivered on: 29 .07.2009
SENTENCE:
SHIVUTE, A.J.:
[1] The accused has been convicted of two counts namely: Culpable
homicide and Defeating or obstructing the course of justice. In
respect of the first count he killed his wife by stabbing her with a
walking stick on 10 June 2007 at Oshakati in the district of Oshakati
thereby causing her death unlawfully and negligently.
In respect of the second count the
accused on the 10 June 2007 at Oshakati in the district of Oshakati;
unlawful and with intent to defeat or obstruct the cause of justice
set alight the room in which the deceased was, causing her body to
become charred, whereas such act was perpetrated whilst accused knew
or foresaw the possibility that, his conduct may frustrate or
interfere with the investigations into the death of the deceased and
destroyed physical evidence of an assault perpetrated on the
deceased.
[2] Mr. Uirab from Legal aid
Directorate appears on behalf of the defence and Mr. Sibeya appears
on behalf of the State.
[3] The accused elected to give
evidence under oath in mitigation of sentence and called no
witnesses. His personal circumstances are the following:
The accused is 49 years old with a
previous conviction. He was formerly employed as a police; however,
when this offence was committed he had already seized to be a police
officer. He is a father of 9 children born by different mothers. Two
of the 9 children were born by the deceased. The age of the children
range from 18 to 5 years. He is not certain who is taking care of his
children since his incarceration. The accused worked as a bus
conductor before he was arrested and he maintained his children. It
is his desire that if he is released from custody he would look for
work and look after his children. The accused was arrested on 11 June
2007 and has been in custody for more than two years. His health is
deteriorating since he was diagnosed HIV positive. He is now on
medication and he visits the doctor every month for examination
purposes. The accused is tormented by the fact that his wife had
passed on; and disturbed by the fact that he is in custody. The
accused continues to be tormented everyday by the thought of his
wife’s death. He is willing to apologize to the mother of the
deceased and he feels sorry for what happened as he did not plan to
kill the deceased. The accused testified that he is remorseful and
prayed for the court to exercise mercy on him.
[4] The accused when confronted
through cross-examination when he last supported the two children he
has with the deceased, he could not recall with certainty. He stated
that he used to give things to his sister and the deceased to pass
them on to the children.
[5] The State called Mrs. Beata
Kandjeke the mother to the deceased to testify in respect of
sentence. She stated that she has been living with the deceased’s
children since one year after the accused and the deceased separated.
The deceased used to support the children and now that she had passed
on she is the only one who is looking after them. She disputed that
the accused supported the children since she has been living with
them. It is her testimony that the accused never apologized to her
and the children concerning the death of the deceased, however, there
is information that the accused wrote a letter to his congregation
apologizing about the death of the deceased. It is her further
testimony that she and the children are very much devastated by the
deceased’s death.
[6] It was submitted on behalf of the
accused that the accused showed remorse because he cooperated with
the police; that he pleaded guilty in the district court; although
the accused has previous convictions these were committed 10 years
ago. The accused acted out of extreme provocation, the offence was
not committed in a brutal or gruesome or horrific manner; the accused
is suffering from a terminal disease being HIV positive, and that the
accused regrets with regard to what happened, therefore the court
should exercise mercy on him.
[7] On the other hand counsel for the
state submitted that the accused has two previous convictions of
assault with intent to do grievous bodily harm committed 9 years ago
before these offences were committed, and not 10 years ago as
suggested by the defence. These offences involve violence. Again, on
the night preceding the death of the deceased, the accused had
threatened to kill two of the state witnesses. There is also evidence
that the accused used to fight with his wife, the deceased. It was
further submitted by the state that the offences committed are very
serious and prevalent, the actions of the accused clearly amount to
domestic violence; and call for a harsh sentence.
As far as the accused’s HIV
status is concerned Mr. Sibeya submitted that this claim is not
supported by medical evidence, even assuming that the claim is true,
“the courts have
established that prison authorities have the responsibility to see to
it that sick inmates receive appropriate medical attention and
medicines. Therefore the court should not put too much weight to this
circumstance”. S
v Emmanuel
Shapumba Mununga case no.
CC 08/2004 at p12 -13. Concerning the defence’s submission that
the actions of the accused were not gruesome, horrific or cruel, he
submitted that to assault a defenseless woman with a stick and
burning the house whilst her body was inside there is no other
description then describing them as barbaric, horrific, cruel and
inhuman.
[8] Both counsel referred the court to
theories pertaining to sentencing as set out in S
v Zinn 1969 (2) SA 537 (A)
to wit preventative, reformative, deterrent and retributive. The
court was also referred to other relevant authorities.
[9] In the process of determining an
appropriate sentence the court is guided by well established and
recognized principles as stated in the case of S
v Zinn (supra). The court
must consider the triad consisting of the crime, the offender and the
interests of the society.
“As
many cases of sentencing, the difficulty arises not so much from the
general principles, applicable but from the complicated task of
trying to harmonize and balance these principles and to apply them to
the facts. The duty to harmonize and balance does not imply that
equal weight or value must be given to different factors. Situations
can arise where it is necessary. Indeed, it is often unavoidable to
emphasize one at the expense of the other”.
As per Ackerman A J A in State
v Van wyk, 1992 (1) SACR at
p 174, at 165 (1) Namibian supreme court decision.
[10] I agree with both counsel by
submitting that the accused is convicted of serious offences,
especially the fact that there has been loss of life, I am also in
agreement with the authority cited by counsel for the state
concerning the approach in sentencing for culpable homicide in S
v Bohitile 2007 (1) NR 137
(HC) whereby the case of S v
Nxumalo 1982 (3) SA 856 (A)
was quoted with approval as per Corbelt J.A, (as he then was) at
861H-862B it was stated in the following terms:
“It
seems to me that in determining an appropriate sentence in such cases
the basic criterion to which the court must have regard is the degree
of culpability or blameworthiness exhibited by the accused in
committing the negligent act. Relevant to such culpability or
blameworthiness would be the extent of the accused’s deviation
from the norms of reasonable conduct in the circumstances and the
foreseeability of the consequences of the accused’s negligence.
At the same time the actual consequences of the accused’s
negligence cannot be disregarded. If they have been serious and
particularly if the accused’s negligence has resulted in
serious injury to others or loss of life, such consequences will
almost inevitable constitute an aggravating factor, warranting a more
severe sentence than might otherwise have been imposed. It is here
that the deterrent purpose in sentencing comes to the fore.
Nevertheless, this factor, though relevant and important, should not
be over-emphasized or be allowed to obscure the true nature and
extent of the accused’s culpability. As always in cases of
sentencing, where different and sometimes warring factors come into
play, it is necessary to strike a balance which will do justice to
both the accused himself and the interests of society”.
[11] The accused in this case was
married to the deceased; the culpable homicide arose from the assault
of the deceased in a domestic context. The accused assaulted the
deceased twice with a stick despite his knowledge that the deceased
was sick and that he would have foreseen the possibility that by
stabbing the deceased she might die, and would have guarded against
that possibility. After the accused killed the deceased, he proceeded
to take the grass from the hut, took a bottle of paraffin and sprayed
paraffin on the grass as well as inside the room; he set the grass
alight and threw it inside the room causing the whole room to be
completely destroyed and the body of the deceased to become charred.
The accused completely destroyed physical evidence and this resulted
in the police not conducting proper investigations regarding the
death of the deceased. The object used to assault the deceased was
also completely destroyed.
[12] Cases of violence against women
and children are on the increase especially domestic violence
committed against defenceless women. The defence claimed that the
accused was extremely provoked due to the fact that the deceased
failed to prepare food for him. How could the accused expect the
deceased to cook if she was sick as he stated? Again the accused is
crying foul that if he is sick it is the deceased who infected him.
How on earth could he put the blame on the deceased of infecting him,
if he himself, even during the subsistence of their marriage he had
been having extra-marital affairs with different women which resulted
in the birth of seven children.
[13] It is the opinion of this court
that the accused did not act under the spur of the moment or under
extreme provocation.
[14] Domestic violence is viewed in a
serious light in Namibia this is confirmed by the enactment of the
Combating of Domestic Violence Act, Act 4 of 2003. Therefore these
types of crimes warrant deterrent sentences. This court is alive to
the fact that each case must be decided on its own merit though.
[15] The court has considered all the
personal circumstances of the accused as placed before it including
the time he spent in custody before the finalization of this case.
However, these personal circumstances should be balanced with the
circumstances of the crimes which the accused committed and the
interests of society, in arriving at an appropriate sentence.
[16] The prevalence of violence
against women in domestic context and the interests of society
outweigh the personal circumstances of the accused. Therefore, a
deterrent sentence is called for, not only to deter the accused but
would be offenders as well.
[17] As far as the accused’s
state of health is concerned, this court is in agreement with the
submissions by counsel for the state that prison authorities see to
it that sick inmates receive appropriate medication and attention.
[18] Given all the circumstances
regarding this case, the court is of the opinion that the following
will be an appropriate sentence.
1st
count: 10 years imprisonment.
2nd
count: 3 years imprisonment.
The two sentences are to run
concurrently.
____________________________(Signed)
SHIVUTE, A.J.
ON BEHALF OF THE
STATE Adv.
O. Sibeya
Instructed
by: Office
of the Prosecutor-General
ON BEHALF OF
DEFENCE Mr.
B. Uirab
Instructed by:
Directorate:
Legal Aid
S v Wilbard (Sentence) (CC 40/2008) [2009] NAHC 78 (29 July 2009);