Court name
High Court Main Division
Case number
CC 13 of 2012
Title

S v Namweya (CC 13 of 2012) [2013] NAHCMD 341 (18 November 2013);

Media neutral citation
[2013] NAHCMD 341
Coram
Shivute J


















SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law and
SAFLII
Policy



REPUBLIC
OF NAMIBIA






HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK


 


                                                                                                             
Case
No.: CC 13/2012



 



THE
STATE                                                                                                                              


 


versus


 


TOBIAS
NAMWEYA


 





Neutral
citation:
 


S
v Namweya
(CC
13/2012) [2013] NAHCMD 341(18 November 2013)


 





Coram:         
SHIVUTE,
J


 


Heard:           
14
November 2013


                       


Delivered:    
18
November 2013


 



Fly note:       
Criminal Procedure – Sentence – Murder – Accused
first offender – Aggravating factor – Offence
premeditated – Interest of society outweighing personal
circumstances of accused – Society expecting long term
imprisonment – Court justified to impose lengthy sentence.    


 



Summary:    
Criminal Procedure – Sentence – Murder – The
accused who is a first offender killed the deceased by stabbing her 7
times with a knife.  The aggravating factor is that the offence
was premeditated – The interest of society has outweighed the
personal interest of the accused – Society expects Court to
impose long term of imprisonment – Court justified in imposing
a lengthy sentence.





SENTENCE








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



2nd
Count:      Assault with intent to do
grievous bodily harm read with the provisions of the Combating of
Domestic Violence Act 4 of 2003: 2 years’ imprisonment.


3rd
Count:      Assault with intent to do
grievous bodily harm: 2 years’ imprisonment.


It
is ordered that the sentence on the 3rd count is to run
concurrently with the sentence on the 2nd count.


 


SENTENCE





SHIVUTE
J:


 


[1]       
The accused has been convicted on one count of murder with direct
intent and two counts of assault with intent to do grievous bodily
harm.  One of the assault counts is read with the provisions of
the Combating of Domestic Violence Act 4 of 2003.






[2]       
The State was represented by Mr Eixab while Mr Mbaeva appeared on
behalf of the accused on the instructions of the Directorate of Legal
Aid.






[3]       
The three convictions referred to above are a sequel to incidents
that took place on 9 September and 20 September 2009.






[4]       
  The accused gave evidence in mitigation where he dealt with
his personal circumstances as follows:


He
is [….] years of age, single but has a son whose age he gave
as […..] years old and yet the accused stated that the son was
born in [...].  He claimed that the son's mother died in 1998. 
Since the death of the child's mother, the child was staying with his
paternal grandmother until 2009 when she also died.  From 2009
the child has been staying with her maternal family.  The
accused is a first offender who was arrested on 20 September 2009. 
He was admitted to bail until 27 November 2010 when his bail was
cancelled because he failed to appear before court and he has been in
custody since then.  Before the accused’s incarceration,
he was working and he used to maintain his son by buying essential
commodities and paying for his school fees.  At the moment he
does not know whether his son is still attending school or not. 
Apart from helping his son, he was also maintaining one of his
siblings who is now 60 years old and his siblings’ children. 
The accused has seven siblings, six sisters and a brother. He
testified that he felt bad because the deceased had died. However, he
qualified his statement in cross-examination by saying he was feeling
bad because he was being tried for the offences he did not commit,
including the killing of the deceased.  The accused stated that
he suffers from high blood pressure and also experiences some pain
because of the injuries he sustained in a car accident some years
back.






[5]       
  Counsel for the State argued that the accused was convicted of
serious offences which are prevalent.  The deceased was killed
in a gruesome manner.  She was stabbed with a knife seven
times.  The deceased had children and a husband and these
children were deprived of their mother.  The deceased was killed
because she tried to assist Ms Tobias who was in an abusive
relationship.  As far as the two counts of assault with intent
to do grievous bodily harm are concerned, the accused has been
stalking the two victims.  He assaulted them on 9 September 2009
and threatened to kill them.  The accused has a tendency of
violence and has no respect for the law. Therefore, so counsel
contended, the Court should impose a lengthy term of imprisonment as
there is little hope for him to be rehabilitated.  Concerning
the accused’s version that he maintained his son counsel argued
that it is highly unlikely that the accused was involved in the
upbringing of his son since he does not even know his son’s
age.  As for the accused’s illness, counsel submitted that
the accused is receiving treatment already whilst in custody. 
He suggested that the court should impose a custodial sentence of 40
years in respect of the first count and 2 years’ imprisonment
in respect of each count of assault with intent to do grievous bodily
harm. He further submitted that the sentence to be imposed in respect
of the third count should run concurrently with the sentence to be
imposed on the second count.






[6]       
Counsel for the accused on the other hand, argued that the court
should take into account the three years the accused spent in
custody.      






[7]       
In considering what an appropriate sentence should be, I will
consider a triad of factors namely:  The offender; the crime and
the interest of society.  At the same time, regard must also be
had to the objectives of punishment which are prevention, deterrence,
rehabilitation and retribution.  Although the court must
endeavour to strike a balance between these factors, the
circumstances of a case might dictate that one or more of the factors
must be emphasised at the expense of the others.


S
v Van Wyk
1993
NR 426 at 448.






[8]       
Although the accused is a first offender who has spent three years in
custody awaiting his trial, factors which are in his favour, he did
not show any remorse whatsoever.  As already noted, the accused
testified that he was supporting his son including his other members
of his family. It may well be that his family has to suffer due to
the accused’s actions. This unfortunately is a consequence of
crime and if this were to happen, the accused has himself entirely to
blame.






[9]       
As far as the nature of the crimes the accused has committed, they
are undoubtedly serious and prevalent in this country.  It is an
aggravating factor that the deceased’s death was premeditated. 
The accused carefully planned to kill the deceased by arming himself
with a lethal weapon, hid it under his jacket and walked to the
deceased’s house.  He told her that he was going to kill
her and executed his intention by viciously attacking the deceased
and inflicted 7 stab wounds on her body for no apparent reason. 
This all happened when the deceased and her friend had met to
celebrate the deceased's birthday. The accused is undoubtedly a
heartless man who has shown scant regard for human life. He went
around [……] Park subjecting the two innocent women to
terror and intimidation. He succeeded to carry out the threat to
murder the deceased.






[10]     
Although the accused testified that he suffers from high blood
pressure and also experiences some pain, at the same time he told the
court that he is receiving medical attention whilst in custody.
Therefore, not much weight should be attached to this circumstance.
The court can also take judicial notice of the fact that inmates are
provided with medical care and treated for their ailments whilst in
prison.  I have weighed the personal interest of the accused in
relation with the interest of society. I find that the interest of
accused is by far outweighed by the interest of society. 
Society expects offenders like the accused who abuse women and have
no regard for human life to be removed from society for a long time
as they pose a clear danger to it.






[11]     
In the result, the accused is sentenced as follows:






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



2nd
Count:      Assault with intent to do
grievous bodily harm read with the provisions of the Combating of
Domestic Violence Act 4 of 2003: 2 years’ imprisonment.


3rd
Count:      Assault with intent to do
grievous bodily harm: 2 years’ imprisonment.


It
is ordered that the sentence on the 3rd count is to run
concurrently with the sentence on the 2nd count.


 


 


 



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



N N Shivute



Judge


 


 


 


 


 


 


 


 


APPEARANCES


 


STATE          
:                                        Mr
Eixab


                                                                      Office
of the Prosecutor-General



 


ACCUSED:                                             Mr
Mbaeva


                                                                       Instructed
by Directorate of Legal Aid