Court name
High Court Main Division
Case number
CC 1 of 2012
Title

S v Somseb (CC 1 of 2012) [2013] NAHCMD 174 (21 June 2013);

Media neutral citation
[2013] NAHCMD 174
Coram
Shivute J



















REPORTABLE








REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA MAIN
DIVISION, WINDHOEK








Case No: CC 01/2012













THE STATE








versus








OTNIEL SOMSEB








Neutral
citation:
S
v Somseb
(CC
1/2012) [2013] NAHCMD 174 (21 June 2013)








Coram:
SHIVUTE, J








Heard:
29
April, 15 May 2013



Delivered:
21
June 2013








Fly note: Criminal
procedure - Sentence – Murder – Accused first offender
who pleaded guilty – Youth of 22 years – Killed the
deceased by assaulting him with an arrow – Set alight his body
– Crushed his bones and hid them in a cave – Although
accused youthful offender – His actions – not consistent
with actions of a person of his age – His actions more
consistent with those of a calculating mature criminal mind –
Accordingly accused sentenced to 30 years’ imprisonment.








Summary: Criminal procedure
– Sentence - The accused a youthful first offender of 22 years,
who pleaded guilty, was convicted of murder with direct intent - He
killed the deceased by assaulting him with an arrow - He set his body
alight, crushed his bones and hid them in a cave - Although the
accused was undoubtedly a youthful offender, who pleaded guilty, his
actions were evidently not consistent with actions of a person of his
age - On the contrary his actions were more consistent with those of
a calculating mature criminal mind- The accused is accordingly
sentenced to 32 years’ imprisonment.













SENTENCE













1st
Count:
Murder with direct intent – 30 years’ imprisonment.








2nd
Count:
Defeating or obstructing the course of justice – 12 months’
imprisonment.








3rd
Count:
Housebreaking with intent to steal and theft – 18 months’
imprisonment, suspended in
toto
for 5 years
on condition that the accused is not convicted of housebreaking with
intent to steal and theft, or theft committed during the period of
suspension.








4th
Count:
Theft read with the provision of the Stock Theft Act 12 of 1990 as
amended – 2 years’ imprisonment, of which 1 year is
suspended for 5 years on condition that the accused is not convicted
of theft of stock or theft under the common law committed during the
period of suspension.








SENTENCE













SHIVUTE J:








[1] The accused person was
convicted on four counts, namely:



1st
Count :
Murder with direct intent.



2nd
Count :
Defeating or obstructing the course of justice.



3rd
Count :
Housebreaking with intent to steal and theft.



4th
Count :
Theft of one goat read with the provisions of ss 1, 11 (1) (a) 14 and
17 of the Stock Theft Act 12 of 1990 as amended.



[2] The accused was jointly
charged with another person. The accused pleaded guilty to all the
charges and was convicted accordingly. A separation of trial was
ordered and his co-accused stood down. The accused is represented by
Mr Isaacks on the instructions of Legal Aid Directorate. The State is
represented by Ms Ndlovu.



[3] Mr Isaacks prepared a plea
statement in terms of s 112 (2) of the Criminal Procedure Act 51 of
1977.



[4] I now proceed to summarise
the accused’s plea to all the charges as follows:



During February 2007, the
accused and his then co-accused went to Farm De Rest situated in
Khorixas district. They were instructed to clean the house of the
grandmother of his co-accused that was situated on the farm. When
they reached the house, the accused became thirsty and he went with
his co-accused to the water point on the farm. Whilst there, the
accused saw goats belonging to the deceased Mr August Soreb Thaniseb.
The accused, assisted by his co-accused, caught one of the goats and
slaughtered it in order to eat it. The accused carried the carcass
and his co-accused carried the intestines and they both went to the
house of the grandmother of his co-accused. The accused knew that at
the time he slaughtered the goat his actions were wrong and against
the law and if caught he could be punished.



[5] At the house he made fire
and cooked liver which he shared with his co-accused both of them ate
their shares. The deceased arrived looking for his goats. He found
the accused and his co-accused busy cutting the meat. The deceased
got into an argument with the accused. The accused threw stones at
the deceased; the deceased threw them back to him and accused fought
the deceased. When he realised that the deceased was stronger than
him, he sent his co-accused to bring the arrow. When his co-accused
brought an arrow the accused assaulted the deceased on the head with
the arrow until he died. The accused was aware that by assaulting the
deceased with an arrow he could cause his death. He admitted that it
was wrong to assault the deceased. The accused had no legal
justification to kill the deceased. He knew that what he was doing
was wrong and that he could be punished if caught.



[6] After the accused killed
the deceased, he and his co-accused dragged the deceased’s body
into the veld and left it there. They proceeded to the deceased’s
house. The accused broke the glass of a window of the deceased’s
house and gained entry to the house. His intention for entering the
house was to steal and he indeed, stole two tyre tubes, a pair of
boots, a saw, pump, radio, solar panel, a pot, some clothing and a
mattress. All the items belonged to the deceased and the accused had
no right to take them. The items were removed through the window,
through which the accused had gained entry into the house. The stolen
goods were taken to the house of the grandmother of his co-accused.
Later on the items were confiscated by the police.



[7] The following day the
accused and his co-accused went back to the place where they had left
the deceased’s body. They put grass on the deceased’s
body, set it alight and crushed the bones of the deceased and the
accused hid the crushed bones in a cave. The reason why he crushed
the deceased’s bones and hid them was to make sure that the
police did not discover the death of the deceased and he was not
connected to the deceased’s death. The accused was aware that
by setting the deceased’s body alight, crushing his bones and
hiding them in a cave his actions were wrong and against the law. The
accused stated that he was sorry for what he did and begged for the
court to be merciful to him.



[8] The accused testified in
mitigation of sentence and called no witnesses. He was born on a farm
in the district of Outjo on 6 June 1985. His father is now deceased.
His mother is residing in Outjo district. He has six siblings three
sisters and three brothers. He grew up with his grandfather looking
after the livestock. His level of education is Grade 2. He is
illiterate. The accused moved from one place to another. He had no
fixed job but he used to sell sculptures which he made himself from
which he earned an income. At the time of the commission of the
offence, the accused was staying at Farm De Rest. Although the
accused stated that he had been incarcerated for four years before he
was released on bail. This is not correct because the record from the
District Court shows that the accused was arrested on 15 March 2007
and when he appeared before court on 29 July 2008 he was on bail. He
stated that the reason he broke into the deceased’s house and
took the goods was because he wanted them to become his property. He
felt sorry for committing the offence of murder and he would not
repeat it. He knew the deceased personally and he regretted killing
him; and he is sad for what he did and asked for forgiveness. He
asked for mercy and stated that he is willing to testify against his
co-accused if called upon to do so. As mentioned before, the goods he
stole from the deceased’s house were recovered by the police.



[9] The accused was aware that
the offences he committed were very serious. It was obvious to him
that the Court would impose a lengthy custodial sentence and he asked
the Court to exercise leniency on him. It was further his testimony
that he did not enjoy his mother’s love since he only came to
know her when he was already grown up. He again wished to be
re-united with his mother. The accused is a father of a minor boy. He
promised to behave himself in future. At the time the accused
committed these offences he was 22 years old. The accused was crying
at the time he was giving his testimony.



[10] Counsel for the State
called two witnesses in respect of sentence. The first one was Mr
Isaskar Thourob, a nephew of the deceased. He testified that the
deceased had goats which he used to sell to a lodge owner and at
auctions. Each goat was sold for between N$400 and N$500. He sold a
breed of goats known as “Boer Bokke”. If a goat was small
he could sell it for between N$350 and N$400.



[11] The second witness was Ms
Julia Huses, a young sister of the deceased. She testified that the
deceased left four children. He was the one who was maintaining them
before he died. He also maintained some of his siblings, including
the witness. Since the deceased’s death the farm had not been
attended to. Some of his livestock got lost. The fact that the
deceased’s remains were not buried had an adverse effect on the
family. The deceased’s death had also made their life difficult
since they depended on him. They searched for the deceased from
February 2007 and his remains were only discovered during March 2007.
The witness further stated that since the Almighty God said we should
forgive and forget, she has forgiven the accused.



[12] Counsel for the accused
argued that the accused is a first offender who pleaded guilty;
therefore the Court should exercise mercy on him. Counsel further
referred the Court to well-known principles of sentencing and cited
several authorities which I have read and considered when deciding on
the appropriate sentence to impose. It was counsel for the accused’s
argument that the murder committed by the accused was not
premeditated. Counsel contended that it was committed in the heat of
the moment. Concerning the housebreaking with intent to steal and
theft, he submitted that all the goods were recovered. With regard to
the crime of defeating or obstructing the course of justice, counsel
argued that the deceased’s remains were recovered because of
the assistance of the accused. It was counsel’s further
argument that as far as the crime of stock theft was concerned the
accused stole because he was hungry. He again argued that there were
substantial and compelling circumstances, namely that the accused is
a first offender who was relatively youthful at the time of the
commission of the offences, the motive of theft was hunger and not
greed; the lack of maturity at the time of the commission of the
offences, the theft was not pre-planned and the fact that part of the
meat has been recovered. Taking these factors cumulatively, so
counsel argued, this would amount to substantial and compelling
circumstances.



[13] Counsel further submitted
that the accused expressed a genuine remorse when he took the Court
into its confidence and testified under oath to express his remorse.
Concerning the time the accused spent in custody, it appears from the
record that the accused was released on bail and thereafter bail was
withdrawn because the depositor wanted to get his money back.
Thereafter the accused stayed in custody for about three to four
years before he was granted bail again. I deem it necessary to
mention at the outset that although the accused has been in custody
for a relatively lengthy period awaiting trial, this was partly due
to the fact that after he was released on bail, the accused absconded
and a warrant of arrest was issued against him. This prompted the
depositor to withdraw the bail money.



[14] Counsel for the accused
submitted further that the Court should consider imposing a
concurrent sentence. He urged that the sentence on the housebreaking
count should run concurrently with the sentence imposed on the counts
of stock theft and defeating the course of justice because these
offences were closely connected in terms of the time and space.








[15] On the other hand,
counsel for the State argued that at the time the accused committed
the offences, he was 22 years old and a father of a child. He was
earning an income from the sculptures he was making. Therefore, so
counsel contended, he was not really a person that could be said to
be youthful. The issue of youthfulness does not really become
relevant in situations where a person is already self-supportive. The
behaviour of the accused when he committed these offences showed
maturity. The State submitted further that the offences committed are
prevalent and the Court should impose deterrent sentences. The
deceased was a person who was providing for his family's upkeep.
Because the accused burned the deceased’s body and crushed his
bones, the deceased’s body could not be recognised and as a
result the deceased’s remains were taken to the National
Forensic Institute for identification purposes. This also led to the
delay of the deceased’s burial. Therefore the Court should
consider it as an aggravating factor.








[16] Concerning theft of the
goat; counsel for the State argued that the fact that the accused was
hungry should not be considered as a mitigating factor as this would
lead to lawlessness: anyone who is hungry will take upon themselves
to steal other people’s stock wherever they are available
because they say they are hungry. With regard to whether there are
substantial and compelling circumstances, counsel argued that what
has been advanced before this Court were the usual mitigation
factors. The fact that the accused was hungry should not be used to
condone theft. Therefore there was nothing substantial and compelling
about the case. The accused had time to reflect on what he was doing.
He first stole the goat, killed the deceased, went to burn his
remains and thereafter proceeded to break into the deceased’s
house and take the goods. These offences were committed at different
times. Therefore, they should be treated as separate and distinct
offences. Counsel again referred the Court to several well-known
authorities in support of her argument. Needleless to say, I have
perused and considered those authorities in arriving at the
appropriate sentences imposed herein.



[17] Having heard all the
arguments placed before me by both counsel and the testimonies of the
accused and witnesses for the State in respect of sentence, I will
now proceed to consider the appropriate sentences in the
circumstances and on the facts of the case.








[18] That the accused is a
first offender who pleaded guilty to the crimes preferred against him
is a factor in his favour. The accused had showed remorse. This is
reflected by him when he gave his testimony that he was sorry and
saddened by what he did. He has asked for forgiveness from the
deceased’s family. The accused also showed apparently genuine
physical emotion in respect of his remorse during his testimony.








[19] That notwithstanding, the
Court should not lose sight of the fact that the offences committed
by the accused are serious and prevalent. The accused killed the
deceased by assaulting him with an arrow on his head several times
until he died. This was undoubtedly a ferocious attack on the
deceased. After the accused had killed the deceased he burned his
remains, crushed the bones and hid them away to ensure that they are
not discovered so as to link him to the commission of the crimes.








[20] Although the accused was
undoubtedly a youthful offender, his actions were evidently not
consistent with the actions of a person of his age. On the contrary,
the actions were more consistent with those of a calculating mature
criminal mind.








[21] The accused claimed that
he was hungry when he slaughtered the deceased’s goat. The fact
that the accused was hungry in the circumstances that he had
relatively steady income should not be condoned because this would
lead to an untenable situation of lawlessness. There is evidence
before me that the accused had a source of income as he was making
sculptures and selling them. Although the accused may not have had
everything at his disposal, the evidence shows that he was not a
destitute and his claim that he slaughtered the goat because of
hunger cannot be accepted.








[22] Concerning the issue
whether there are substantial and compelling circumstances, as
already stated, counsel for the accused argued that the accused, a
youthful first offender, committed the offence of stock theft because
he was hungry; that the offence was not pre-planned and that part of
the meat has been recovered. And for Counsel, these factors taken
cumulatively amount to substantial and compelling circumstances.
Clearly, there can be no merit in this argument. What was placed
before me in this connection was nothing but the ordinary and usual
mitigatory factors. I, therefore, find no substantial and compelling
circumstances in respect of this offence and I am bound to impose the
mandatory sentence.








[23] The Court has considered
the period the accused has spent in custody and the fact that these
offences were not premeditated. The peculiar circumstances in which
they were committed have also been taken into account. I have also
considered the sequence in which these offences were committed. The
accused stole the goat the value of which was not more than N$500.
After he had slaughtered it and ate some of the meat, he was
confronted by the deceased whose only sin was to ask why the accused
had stolen his goat. The accused's response was to brutally kill the
deceased. He took his body from the scene to a place where he set it
on fire. As if that was not enough, he proceeded to the deceased’s
house and broke into it. The following day he returned to the
deceased’s remains and crushed the bones and hid them. As
Counsel for the State rightly pointed out, the accused had time to
reflect on his actions and form separate intentions for his separate
acts.








[24] I have considered the
personal circumstances of the accused as set out above. I am of the
view, however, that these have been by far outweighed by the interest
of society and the seriousness of the crimes. To argue, as counsel
for the defence did, that the mortal remains of the deceased were
recovered with the assistance of the accused should surely come as a
cold comfort to the deceased's family. They were not only robbed of
its dear bread winner, but after he had cruelly and callously been
taken away from them, the family was also deprived of the opportunity
to give the deceased a decent and dignified funeral. No human being
deserves such cruel and inhumane treatment. Doubtless, persons
convicted of crimes of violence in this country that seem to be a
daily occurrence need to be visited with robust sentences to curb the
high tide of this type of crime.








[25] In the result the accused
is sentenced as follows.








1st
Count:
Murder with direct intent – 30 years’ imprisonment.








2nd
Count:
Defeating or obstructing the course of justice – 12 months’
imprisonment.








3rd
Count:
Housebreaking with intent to steal and theft – 18 months’
imprisonment, suspended in
toto
for 5 years
on condition that the accused is not convicted of housebreaking with
intent to steal and theft, or theft committed during the period of
suspension.








4th
Count:
Theft read with the provision of the Stock Theft Act 12 of 1990 as
amended – 2 years’ imprisonment, of which 1 year is
suspended for 5 years on condition that the accused is not convicted
of theft of stock or theft under the common law committed during the
period of suspension.













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



N N Shivute



Judge


























































APPEARANCES








STATE : Ms Ndlovu



Office of the
Prosecutor-General








ACCUSED: Mr Isaacks



Instructed by Directorate of
Legal Aid