Court name
High Court Main Division
Case number
CA 32 of 2012
Title

S v Appolus (CA 32 of 2012) [2013] NAHCMD 37 (12 February 2013);

Media neutral citation
[2013] NAHCMD 37
Coram
Smuts J
Geier J













REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








JUDGMENT



Case no: CA 32/2012








In the matter between:








JACOBUS QUIDO APPOLUS
....................................................................APPELLANT



and








THE STATE
..............................................................................................RESPONDENT








Neutral citation:
Appolus v The State (CA 32/2012) [2013] NAHCMD 37 (12
February 2013)



Coram: SMUTS J et
GEIER J



Heard: 19
November 2012



Delivered: 12
February 2013








Flynote: Appeal
against conviction and sentence – Ad the conviction - Court
concluding that findings of magistrate not wrong – Appeal
against conviction dismissed - Ad sentence – Court finding that
the aspect of deterrence was over-emphasised, whereas the strong
personal mitigating factors in favour of the appellant were under –
Emphasized - That the learned magistrate therefore got the
complicated task of trying to harmonise and balance the principles
applicable to sentencing and to apply them to the facts wrong in
these respects – In any event the sentence imposed by the court
a quo also inducing a sense of shock in the sense that there was a
startling disparity between the sentence imposed by the trial court
and the sentence deemed appropriate by the appeal court –
Sentence set aside -








Summary: Appellant
– aged 71 - Was arraigned on the charge of murdering his own
son Patricio David Apollus in the Regional Court held at
Keetmanshoop. He pleaded not guilty and in his defence only submitted
a statement in terms of section 115 of the Criminal Procedure Act 51
of 1977, in which he claimed that he had acted in self-defence and
that the shot which had been fired, which had admittedly killed his
son, had meant to be a warning shot, intended to go over the
deceased. The deceased, who had bent down, allegedly rose
unexpectedly and got into the path of the shot and was thus killed
almost instantly - He was subsequently found guilty and convicted of
murder and sentenced to 15 years imprisonment, of which 5 years were
suspended. The appellant subsequently noted an appeal against this
conviction and sentence -
Ad the conviction - Court concluding
that findings of magistrate not wrong – Appeal against
conviction dismissed - Ad sentence – Court finding that the
aspect of deterrence was over-emphasised, whereas the strong personal
mitigating factors in favour of the appellant were under –
Emphasized - That the learned magistrate therefore got the
complicated task of trying to harmonise and balance the principles
applicable to sentencing and to apply them to the facts wrong in
these respects – In any event the sentence imposed by the court
a quo also inducing a sense of shock in the sense that there was a
startling disparity between the sentence imposed by the trial court
and the sentence deemed appropriate by the appeal court –
Sentence set aside – And replaced.










ORDER











  1. The appeal against the
    appellant’s conviction is dismissed;










  1. The appeal against
    sentence succeeds and is replaced with the following sentence:









TEN
(10) YEARS IMPRISONMENT of which FIVE (5) YEARS ARE SUSPENDED FOR
FIVE (5) YEARS on condition that Appellant is not convicted of murder
or attempted murder committed during the period of suspension.















JUDGMENT















GEIER J (SMUTS J
concurring):








[1] The
appellant was arraigned on the charge of murdering his own son
Patricio David Apollus in the Regional Court held at Keetmanshoop. He
pleaded not guilty and in his defence submitted a statement in terms
of section 115 of the Criminal Procedure Act 51 of 1977, in which he
claimed that he had acted in self-defence and that the shot which had
been fired, which had admittedly killed his son, had meant to be a
warning shot, intended to go over the deceased. The deceased, who had
bent down, allegedly rose unexpectedly and got into the path of the
shot and was thus killed almost instantly.








[2] In support of its
case, the State called three witnesses, the first being the
investigating officer in the case whose evidence was mainly of a
formal nature. The second witness was present at the scene but did
not witness the actual shooting. The third witness, although also
having been in the vicinity of the incident, could also not shed any
greater light onto what had exactly transpired at the material time.








[3] The appellant closed
his case without giving evidence.








[4] He was subsequently
found guilty and convicted of murder on 8 April 2010 and sentenced to
15 years imprisonment, of which 5 years were suspended. The appellant
subsequently noted an appeal against this conviction and sentence.








The background facts








[5] On the 2nd
of February 2008 the deceased and the appellant had an altercation at
the appellant’s house. There was an initial altercation and a
subsequent stand-off between the two after the deceased and appellant
had been separated and the deceased had left the yard, to which he
later returned. After the appellant attempted to evict the deceased
from the yard with the aid of a kierie the deceased went to
pick up some stones. In response the appellant apparently stated ‘if
you are going to pick up stones, I am going to get my gun’. The
appellant then went into his house and indeed armed himself with a
rifle. The deceased went and stood some four metres from the kitchen
door – a stable door, with the lower part closed and the upper
part open. The appellant remained inside the house the deceased being
on the outside in the yard. While in these respective positions they
then challenged each other – the deceased inciting the
appellant to shoot him, and the appellant telling the deceased to
throw his stones. The appellant then shot the deceased.








The state’s
evidence








Sergeant Dierstaan








[6]
He informed the court that he received information on the 3
rd
of February 2008 that there had been a shooting incident
at Tses. He was instructed to investigate the case, he thus drove to
Tses. On arrival he learnt that the appellant had already been
arrested. He subsequently charged the appellant and returned on the
5
thfor further
investigation. A photo plan was compiled and the firearm in question
was already booked in as an exhibit as well as five live rounds and
one discharged round - these were taken to the forensic laboratory
for tests. The results were positive and corroborated that the
confiscated firearm that had been used in the crime. In court Sgt
Dierstaan identified the exhibits being a Musgrave rifle, one empty
cartridge and a box containing 9 live rounds of ammunition. The
appellant’s firearm licence was handed in as an exhibit
together with the results of the forensic test and a copy of the
post-mortem report and the said photo plan. All these exhibits were
handed in without objection from the defence.








Ms Laurentia Kangootui








[7] Ms L Kangootui, a
retired teacher by profession, firstly identified the appellant as
she knew him well. She confirmed further that she was at the
appellant’s residence on the day in question. She told the
court that she was sitting in front of the buildings which were close
to the appellant’s home. She noticed 2 persons emerging from
the appellant’s house who were followed by the deceased who
then picked up stones, the two other persons walked in the direction
of a police van which happened to stand in the vicinity and when the
deceased saw this he dropped the stones and followed them. After a
while she noticed that the two persons came back but passed the yard
and that the deceased also came back but went into the yard. At this
stage the appellant told him not to enter but this warning was not
heeded by the deceased, who then went to sit at the corner of the
garage. The appellant apparently went back into the house and when he
emerged he had kierie with which he pushed the deceased around
his shoulders and chest in order to persuade him to leave the yard.
The deceased apparently then stood up in order to pick up the stones
in response to which the appellant apparently said ‘… if
you are picking stones I am going to get my gun.’ He then went
into the house. Ms Kangootui apparently tried to persuade the
deceased to rather leave and go to his friends but the deceased
refused to listen. Importantly she then testified that the deceased
then went with the stones and stood in front of the kitchen door. The
appellant who had entered the house stayed in it for some time and
remained inside. She then heard the two challenging each other. As
she had been sitting in an awkward position and was only able to
observe all this by turning her head, and as she got tired of turning
neck, she turned away at a certain stage. It was during this time
that she heard a shot. She also noticed that the residents of the
town immediately came to the scene. In response to certain additional
questions from the prosecutor she clarified that while the deceased
was still sitting and the appellant came to push him with a kierie
that the deceased had not object in his hands. She also could not
recall how many stones the deceased picked up later when he walked
armed with such stones and stood in front of the kitchen door. She
was probed on the distance that the deceased stood from the kitchen
door. She confirmed that it was some distance away. She also
described that it was a split door ie the type of door where one
could open and close the top part as well as the bottom part and that
the lower part could remain closed while the top part could remain
open. She testified that at the time that the deceased stood in front
of the door the upper part of the door was open and that the lower
part was closed and that the deceased while looking into the kitchen
made no movements or did anything else apart from was standing in
front of the door. She also confirmed that the deceased remained in
the house throughout. When questioned as to whether there was any
communication between the deceased and the appellant at the time, she
stated that








‘… all
I heard was like both parties were saying words to each other as to
say you shoot and throw you can throw or you can shoot those were the
words exchanged by the two parties



Court:
Repeat that again



Answer:
All I heard was that the one party told the accused person saying to
the deceased person one saying shoot the other one saying throw.



Prosecutor
Who was saying shoot or which of the two were saying shoot?



Answer:
The deceased person was the one who was saying shoot.



Prosecutor:
And which of the one was saying throw?



Answer:
That is the accused person’








[8] She reiterated that
she then turned and did not observe what happened next, but she
explained this regard that this was only for a very short time until
she heard the shot when she turned again and saw the deceased falling
while the appellant was still in the house. She repeated that she did
not see the deceased throwing any stones or bricks at the appellant.








[9] The initial part of
cross-examination of this witness focused on the preceding
altercation in which also the two other men were involved during
which the deceased was then aggravated to such extent that he wanted
to fight with the appellant. She also confirmed under
cross-examination that the appellant had pushed the deceased with a
kierie and that the deceased did not leave the yard. That it
was from there that he went to pick up the stones for a second time
that the appellant at that stage said he would fetch his gun and went
into said house. She denied that the deceased went to pick up any
bricks which he threw at the appellant, when this was put to her. She
also denied, as put by defence counsel, that she noticed the deceased
throwing stones at the appellant when the appellant ran towards the
back of the house into the kitchen and that there were two women who
as a result ran into the garage and that he picked up another stone,
one already being in the other hand, and chased the appellant. It was
then put to her that the appellant grabbed the rifle after he got
into the house and that he closed the lower part of the door of the
kitchen. The witness confirmed that she noticed that only the lower
part was closed and that she did not see the appellant physically
come back. It was then put to her that the appellant closed the lower
part of the door and put his firearm on the lower part of the door
pointing to the outside and that the deceased then dropping the
stones or half- bricks and grabbed the gun which rested on the lower
part of the door. Ms Kangootui denied that she saw any of this. Mrs
Kangootui also denied that she had seen the appellant come back and
that she noticed again when they were challenging each other,
exchanging the words ‘throw’ and ‘shoot’. Mr
Tjombe, who appeared on behalf of the appellant at the trial, then
put it to the witness that the deceased then let go of the ‘gun’
and went to pick up the stones that he had dropped earlier. Also this
was not noticed by her. He then put it to the witness that as the
deceased bent to pick up the stones that had been dropped there, the
appellant intended to fire a warning shot above the deceased, that
the deceased then lifted his head or his body, who had bent down in
order to pick up stones and that it was then that the deceased lifted
his head or his body, with stones, that the shot then went off. The
witness again stated that all she knows is that a shot was fired that
killed the deceased and that she did not see the deceased picking up
stones. She was then confronted with a statement which she made in
which she had stated that she had seen the barrel of the gun on the
lower part of the door and the witness explained that this was
something that she had stated heard and that she did not actually
see. She was then finally quizzed as to whether she could not
remember the incident fully or that she did not really see some of
the things that transpired to which she responded by stating that she
just knew what she had seen and stated that in respect of those
things that she did not see she did not know what to say. Mr Tjombe’s
parting shot was to then to put to her that if the appellant would
come and say that after the deceased had stopped pulling the
appellants ‘gun’ he went to pick up stones that she would
not be able to dispute his version. To this Mrs Kandootui replied:
‘That is correct. I have not seen that, so how can I argue
about that … ’.








[10] In re-examination,
she was asked to clarify whether it was possible - in the limited
time in which she turned her head away from the scene - for the
deceased to have dropped the stones, move closer towards the kitchen
door, get hold of the barrel of the gun, turn back, bend, pick up
stones which he had earlier thrown on the ground and then stand
upright? The witness responded that she did not think so, intimating
thereby that she thought that this was not possible.








[11] When questioned by
the court she also clarified that at the time that the appellant went
into the house (to fetch the rifle) she stood with the deceased and
talked to him. When questioned on the distance that the deceased
stood from the door (when he was shot), she replied that: ‘…
I did not measure it … It was not that far and also not that
close, but it was not much a long distance or a big distance …’.
She then also confirmed that when she heard the shot and turned again
she just saw the deceased falling.








Johannes Gabriel Koper








[12] This state witness
confirmed that he knew the appellant. He confirmed further that he
and one Kahuure went to the appellant’s home that day in order
to borrow some money. He explained how a quarrel arose in respect of
the money in respect of which the deceased was dissatisfied with his
share. The deceased demanded more and when appellant could not give
him more the quarrel ensued, that both he and Kahuure talked to the
deceased and after the deceased had run out of the house and picked
up stones they urged him not to go back. They also told him that they
would report the incident to the police and that they indeed went to
a police van which stood in the vicinity and reported the incident to
one Tsamareb who did however not intervene. Mr Koper and Kahuure then
left.








[13] When they returned
later they found the deceased person standing outside the appellant’s
house gesticulating into the appellant’s home. They could
however not hear what was being said. As they proceeded they heard
the discharge of the rifle.








[14] The initial part of
Mr Tjombe’s cross-examination focused on the initial quarrel
relating to the dissatisfaction of the deceased relating to the
payment he had received. Mr Koper confirmed that the deceased was
very angry at the time and that he even left the house in order to
get some stones. They then managed to shield the appellant and take
the deceased away from him and push him out of the house. Mr Koper
confirmed that if this had not been done that the deceased would have
used the stones to harm the appellant and that the deceased even
picked up more stones as they were leaving the yard. By that time
that they reached the police van the deceased was still threatening
him with the stones. The deceased then stopped while Koper spoke to
the police reservist Tsamareb. Although Koper was of the view that
the deceased should have been locked up Tsamareb did not do this. He
and Kahuure then left for the location. When they came back they
observed the deceased making movements with his arm and hands and
from which they deduced that the deceased was busy quarrelling with
the appellant. When questioned whether or not this looked dangerous
Koper said that he was looking all the time – and thus could
not say – and that he then commented ‘… there he
is busy again …’ after which they just proceeded further
.








[15] He also confirmed
that he knew the appellant very well as they worked together for many
years and that he also had seen the deceased grow up in front of him.
He confirmed that there had been quarrels between the deceased and
his parents but that the deceased had quarrelled mostly with
appellant in the past. He also stated that in his opinion the
appellant was not a violent person.








[16] Finally it should be
mentioned that in re-examination, Mr Alexander, who ran the
prosecution in the court a quo, had Mr Koper’s witness
statement confirmed for the purposes of having him declared a hostile
witness in order not to disclose certain inconsistent parts of his
statement. These parts related mainly to the first quarrel and did
not throw any new light on the material time that the deceased was
shot. The State then closed its case.








[17] The defence also
closed its case.








[18] As the appellant
thus gave no evidence in his defence the contents of his plea
explanation thus came to the fore.








The appellant’s
plea explanation








[19]
‘Explanation of plea of not guilty in terms of Section
115 of the Criminal Procedure Act, Act 51 of 1977:









  1. The
    Accused plead not guilty to the charge of murder, and provides the
    following explanation to the plea:










  1. The
    Accused deny that on 2 February 2008 and at Tses in the regional
    division of Keetmanshoop, Namibia, he unlawfully and intentionally
    killed PATRICIO DAVID APOLLUS (“the deceased”).










  1. The
    Accused admit that on 2 February 2008, and at Tses in the regional
    division of Keetmanshoop, Namibia he discharged a firearm of which
    bullet struck the deceased and which caused his death.










  1. The
    Accused discharged the firearm in the self-defence against the
    continuous and a further imminent attack by the deceased, who was
    throwing stones or bricks at the Accused and intended to throw
    stones or bricks at the Accused.










  1. When
    the deceased bent downwards to pick up the bricks or stones, the
    Accused intended to fire one shot above the deceased to ward off the
    continuous and further imminent attacks. The bricks or stones that
    the deceased intended to throw at the Accused were large and had the
    potential to cause serious harm or death.










  1. As
    the Accused fired the one shot, the deceased unexpectedly moved
    upwards and into the path of the bullet, which struck him in the
    head causing his death. The Accused did not foresee that the
    deceased will be struck by the bullet. Had the deceased not moved
    unexpectedly upwards, the bullet would have not struck the deceased,
    but would have harmlessly and safely passed the deceased. The
    intention was to scare him so that would cease his attacks on the
    Accused, which attacks were imminent and caused the Accused to fear
    for his life and safety.










  1. Accordingly,
    the Accused did not intend to strike the deceased, and therefore did
    not intend to kill the deceased, but fired the one shot with the
    intention to ward off the attack by the deceased.










  1. The
    deceased was a violent person throughout his life, which violence
    was mostly directed at the Accused (who is his father), his mother
    and other family members. At the relevant time of the incident
    referred in the charge sheet, the deceased was particularly violent
    and was attacking the Accused with stones or bricks, and the
    escalated the attack by intending to throw at least further two
    bricks or stones at the accused.










  1. The
    Accused’s striking the deceased was not intentional nor was it
    negligent, but the Accused’s actions were reasonable and
    necessary in the circumstances.










  1. The
    Accused therefore plead not guilty to the charge of murder, and this
    is therefore his explanation of his plea of not guilty.










  1. Any
    admissions made herein above may be recorded as formal admissions in
    terms of section 220 of the Criminal Procedure Act, Act 51 of 1977.’









Judgment of the court
a quo








[20] After summing up the
evidence and considering counsels’ submissions the learned
magistrate took some time out to differentiate some of the case law
which had been cited to him. He set out the applicable case law and
the applicable principles regarding private defence including that it
was clear that the appellant facing a prima face case had an
evidential burden to discharge or to refute such prima face case. He
remarked that although the appellant’s section 115 statement
was quite elaborate it left many questions unanswered and without the
appellant testifying it was impossible for the court to find what the
appellant’s state of mind was when he fired the shot. He
analysed the requirements of self-defence and concluded that the
state had made out a prima facie case which had cast an evidential
burden on the appellant. He proceeded to analyse the Section 115 plea
explanation of the appellant with reference to the evidence on record
which importantly also showed that the deceased ‘did not remain
attacking his father because he was afraid of the police’ –
and that by reason of the fact that the appellant and the deceased
were challenging each other immediately prior to the shooting and
because ‘the impression given by both witnesses, (that) they
are seeing the appellant in front of the house or the kitchen door
and the hearing of the shot was such that it was not possible to
accommodate the defence’s averments …’. He also
concluded that the situation in which the parties were challenging
each other rather ‘bordered on provocation and annoyance’
rather ‘than a real self-defence situation’. By firing a
lethal weapon at the deceased’s head or body the appellant
should have foreseen that he could kill the deceased or at risking
that. If it was intended as a warning shot it should have been aimed
in the air. He ultimately concluded that the appellant was not under
attack and even if he was that he exceeded the bounds of
self-defence. In the result he found the appellant guilty as charged.








Argument








[21]
During argument presented at the appeal hearing the court raised a
number of aspects pertinent to the issue of private-defence with the
appellant’s counsel, Mr McNally, who was alive to the
constraints placed on his task by the little probative value, if any,
that attaches to plea explanations made in terms of section 115 of
the Criminal Procedure Act 1977.
1








Ad the alleged use of
large bricks or stones








[22] The first aspect so
raised concerned the bricks or stones with which the deceased was
alleged to have had mounted the ‘continuous and further
imminent attack’ against appellant.








[23] In this regard it
should not be forgotten that the appellant had described the attack
he was facing in his statement made in terms of Section 115 as
follows:








4.
The Accused discharged the firearm in the self-defence against the
continuous and a further imminent attack by the deceased, who was
throwing stones or bricks at the Accused and intended to throw stones
or bricks at the Accused.



5.
When the deceased bend downwards to pick up the bricks or stones, the
Accused intended to fire one shot above the deceased to ward off the
continuous and further imminent attacks. The bricks or stones that
the. Deceased intended to throw at the accused were large and had the
potential to cause serious harm or death.’













[24]
Mr McNally readily conceded that there was absolutely no evidence of
any bricks or the use thereof nor was there any indication as to the
size of the stones that had been handled at any time and which
therefore could have had
the potential to
cause serious harm or death.’








[25] This concession was
correctly made given the evidence tendered by the state witnesses in
this regard which must be accepted.



Ad the alleged
grabbing of the rifle








[26] On this score it
will be recalled that defence counsel had put it to Mrs Kangootui
that:








And
then the Deceased who had the stones in his hand dropped the stones.
Can you confirm that? —- I, no I cannot tell as to how he
dropped the stones. I do not know whether he just dropped them
voluntarily or it was when he was shot. That I cannot tell.



And
after dropping the stones or these half bricks he grabbed the gun
which was on the, the lower part of the door. I did not see that.



You
did not see. That is correct I did not see



My
instructions are further that, to you, that the Deceased then pulled
the gun that was being hold on the other side of the door in the
kitchen by the Accused. What is your comment on that? I have not see,
I did not see that.



You
did not see that? No.



At
the time when he was pulling, when he grabbed he gun and pulling it
towards him he was shouting to the accused using all sorts of vulgar
words in between that the Accused should shoot him or he will throw
the Accused with the stones. And using vulgar language. — I did
not see and hear that.



The
instructions of the Accused are further that he then left the, the
gun, let go of the gun and went to pick up the stones that he dropped
earlier or went to bend to pick them up. … I did not see
that.’








[27] Here Mr McNally had
to agree that the appellant’s version, as put, was not
consonant with the plea explanation in which ‘a continuous and
further imminent attack by the deceased, who was allegedly throwing
stones or bricks’ had been sketched and were the deceased saw
fit to drop his stones, wrestle for the rifle and were the appellant
and the deceased actually took time out to threaten each other and
where the deceased had actually taken up a position some distance
away from the kitchen door, as was also corroborated by Point E
indicated on the photo plan, Exhibit ‘G’.








[28] There was also in
such circumstances no continuous and further imminent attack by the
deceased who was throwing stones of bricks or intended to throw
stones or bricks.








[29] It therefore emerged
that also in this regard the appellant’s version was not quite
borne out by the evidence.








Ad the warning shot



[30] Here the plea
explanation read:








5.
When the deceased bend
(t)
downwards to pick up the bricks or stones, the Accused intended to
fire one shot above the deceased to ward off the continuous and
further imminent attacks. The bricks or stones that the deceased
intended to throw at the accused were large and had the potential to
cause serious harm or death.



6.
As the Accused fired the one shot, the deceased unexpectedly moved
upwards and into the path of the bullet, which struck him in the head
causing his death. The Accused did not foresee that the deceased will
be struck by the bullet. Had the deceased not moved unexpectedly
upwards, the bullet would not have struck the deceased, but would
have harmlessly and safely passed the deceased. The intention was to
scare him so that (he) would cease his attacks on the Accused,
which attacks were imminent and caused the Accused to fear for his
life and safety.



7.
Accordingly, the Accused did not intent(d) to strike the
deceased, and therefore did not intent(d) to kill the
deceased, but fired the one shot with the intention to ward off the
attack by the deceased.’








[31] The immediate and
obvious problem posed by the alleged scenario is that it was common
cause between the prosecution and the defence that the lower part of
the kitchen door - which did also have a top part – and which
parts could independently be opened and closed – was shut at
the time that the appellant intended- and fired his ‘warning
shot ‘above the deceased’. The deceased was however at
the time bending down ‘to pick up bricks or stones’ when
the deceased ‘moved unexpectedly upwards’. According to
the photo plan the kitchen and thus the spot from which the appellant
fired his shot, was elevated. In addition the lower part of the door
would have impeded the aiming of the shot to an area situated ‘lower
down’ and were the deceased was bending down, making the
hitting of the target in a lower area even more difficult. In order
to hit a target lower down the appellant would have had to move
forward in order to overcome the barrier posed by the lower part of
the kitchen door in order to aim his rifle at the deceased and thus
to hit him. These objective facts do not gel with the appellant’s
version that he only hit the deceased by chance because he was in the
process of coming up again. If the appellant had really intended not
to strike the deceased and had really aimed to fire his rifle above
the deceased - so that the shot would pass him by ‘harmlessly
and safely’, it remains inexplicable why he was not able to
achieve this objective – after all it would have been an easy
matter to have fired a warning shot ‘safely’ into the air
well above the deceased’s head, as the top part of the kitchen
door was admittedly open and would not have impeded such manoevre.








[32] The objective facts
are thus rather indicative of a shot aimed at the deceased and the
intention to execute the verbal threats made immediately before the
shooting - at the very least the appellant’s actions amount to
a reckless disregard as to the consequences of his actions by the
aiming and firing of a shot, fairly low down, into the direction of
the deceased – who was admittedly bending down but who would
thus, foreseeably, come up again, with lethal consequences.








[33] It did therefore not
altogether come as a surprise that the learned magistrate, in the
court a quo, ultimately concluded his findings as follows:








By
aiming a lethal weapon such as a gun at the Deceased or by firing a
lethal weapon such as a gun at the Deceased’s head or body
Accused clearly foresaw that a bullet to that part of the head or of
the body would kill the Deceased or have, or would have fatal
consequences and thereby took the risking game. If it was intended to
be a warning shot it could and would have been made in the air. It is
clear that the requirements of the defence of self-defence do not
cover the Accused at all. Evidence before this Court does not suggest
that Accused person was under attack and even if he was under attack
the means he took to defend himself clearly exceeded the bounds of
self-defence. In the result this Court finds Accused guilty as
charged.’



[34] We cannot say that
such finding was wrong. On the contrary it would appear that such
finding is correct. Accordingly we do not uphold the appeal against
the appellant’s conviction.








Ad sentence








[35] During argument, Mr
Alexander for the prosecution, in the court a quo, submitted that a
five year term of imprisonment would be an appropriate sentence for
the appellant in the circumstances. He also requested the court to
order the forfeiture of the rifle, which had been used and its
silencer.








[36] Mr Tjombe on the
other hand urged the court to impose a wholly suspended sentence
coupled with community service.








[37] The court a quo
however imposed a sentence of fifteen years of which five years were
suspended on the usual conditions. In addition the rifle and silencer
were declared forfeit to the State and the appellant declared unfit
to possess a firearm.








[38] Given this
divergence it does not take much that the resultant sentence imposed
for murder became the central focus of this appeal.








Mitigation








[39] From the evidence on
record it emerges that he appellant is presently seventy-three years
old. He is married with children. He was involved in farming through
which he provided for his wife and family. He had no previous
convictions. He has been a law abiding citizen for most his life and
has even occupied a board position on the board of directors of the
National Development Corporation. He is still a respected leader in
the ‘Blouwes’ traditional community, which community he
also served by being on the traditional authority in Tses and beyond.








[40] Both the appellant
and his wife are no longer in perfect health.








[41] The appellant has to
continue to live for the rest of his life with the fact that he has
killed his own son a deed that obviously hurt him deeply and for
which he has expressed regret according to the evidence of family
members, the Reverend Bever and a social worker who testified in
mitigation.








[42] Extensive evidence
was offered in regard to the provocation that the appellant would
have to endure on many occasions from the deceased over the years.








[43] In the course of the
testimonials given by a number of witnesses in favour of the
appellant they all agreed that the appellant should not be sent to
prison.








[44] It was submitted
further that the killing was not pre-meditated and that there was no
necessity to remove the appellant from society and that imprisonment,
given the appellant’s age would not serve its rehabilitative
purpose and that it was rather a suspended sentence that would
effectively serve as a deterrent. It was pointed out in this regard
that the likelihood that the appellant would become a repeat-offender
was virtually nil.








[45] The court was urged
to consider the option of community service as a realistic
alternative to imprisonment.








[46] The prosecution
reminded the court that the offence of which the appellant was
convicted called for a long custodial sentence. It was conceded that
the circumstances which prevailed at the time, the appellant’s
age, the role which he still played in the community justified a
substantial reduction in the sentence which would otherwise be
appropriate – the prosecutions point of departure having been a
sentence of between fifteen to twenty years imprisonment. It was
suggested that a totally suspended sentence would only have been
fitting in the event of a conviction of culpable homicide of murder
on the basis of dolus eventualis.








[47] Mr Alexander
submitted further that the degree of provocation was not such as
could be regarded by a reasonable person as an excusable reaction. He
conceded that the past acrimonious relationship between father and
son must have got the appellant to the point where he lost control
and a young life was lost.








[48] He also pointed out
that adequate medical and hospital facilities were also available in
prisons and that it was rather the exception than the rule that
medical grounds constituted a good reason for not sending a convicted
person to jail for a serious offence.








[49] It was also argued
that there was authority for not sending first offenders to prison
but that it also went without saying that were a serious crime was
committed this principle would not apply.








[50] He conceded also
that the appellant’s conduct was less reprehensible as it was
committed under circumstances of diminished responsibility but that
on the other hand perpetrators of domestic violence should be
severely punished and that the sentences imposed should send out a
strong deterrent message.








[51] He nevertheless
considered a sentence of eight years imprisonment as unjust and
submitted that a term of five years would appropriately do justice to
all applicable factors.








Reason’s for
sentence








[52] The learned
magistrate initially considered the various competing factors
relevant to sentencing with reference to the applicable authorities.








[53] He acknowledged the
compelling personal circumstances of the appellant and even was
prepared to accept the appellant’s medical condition in the
absence of ‘proof’.








[54] The court also
accepted that the appellant was remorseful and that he regretted the
death of his son. He was mindful that the social worker who had
testified had called for a non-custodial sentence and that the
appellant was a useful member of the community who was mindful of his
responsibilities towards his wife.








[55] The focus then
shifted as follows:








‘… It
is always in the interest of the community and society at large that
the right to life is jealously protected. The upsurge of crimes of
violence and the rise of the tendency to take the law into one’s
own hands and exact extraditial resolution is very harmful to society
as a whole. People in society can only have respect for the rule of
law and the criminal justice delivery system if crimes are seen to be
adequately and generally as far as possible uniformly punished …



Generally
Accused appears to have more sympathisers sympathizing with him that
with the Deceased. Perhaps it is because of the Accused person’s
position in the community, maybe it is because of his reputation and
the fact that the Deceased was probably a nuisance or simply because
the Deceased has already been lost anyway. … One must point
out that from the nature in which the investigations were carried out
by the social worker and the time she says she had with the Accused
person and the areas she covered her report is clearly inadequate.
She concentrated only on the current state of the Accused person, …It
must be noted that society or the community’s definition goes
beyond and is not limited to the Accused person’s immediate
family, peers and his immediate locality or community. A sentence
must only make sense to a particular section of society or a
particular community…



A
clear message must be sent that crime. especially murder cannot be
condoned, no matter how popular (indistinct) the offender is or how
harmful and unpopular the victim is in a particular community. In
other words life is life and it is important no matter who carries it
Likewise the interest of the community are not necessarily synonymous
with the immediate benefits the particular section of the community
stands to derive from a particular Accused person. Thus the Courts
must be careful to apply the (indistinct) of the community or focus
of interest. If that were to be the order of the day then some
well-placed people in society, especially in small remote communities
will be tempted to execute social outcasts and rely on the support of
their communities which communities (indistinct) their beneficiary to
escape due punishment (indistinct) …



Although
the Court is under a duty to serve the public interest it must be
mindful that public expectation is not synonymous with public
interest and the Courts must, the Courts should not give in to
expectations of society and impose sentences which society deems
just. The Courts must safeguard their independence and have to
consider sentences in accordance with the well-established principles
applicable to sentencing and of which public interest is but one
factor to be taken into account.” The same Court in the
Nakapawa Johannes case quoted above on page 6, paragraph 14 remarked
as follows and I quote: ‘The Court on the other hand is mindful
of the fact that people in society on a daily basis encounter
situations in which they are angered, humiliated or provoked, but
have to control their emotions without yielding to the urge of taking
the law into their own hands and punish (indistinct). Having said
that the question is what sentence is applicable in this specific
case. I have already alluded to the Defence suggested a wholly
suspended sentence. The State on the other raised diminished
responsibility into Accused person’s actions and urged the
Court to follow the case of The State versus Munisi cited above and
sentence the Accused person to an effective prison term of five
years…



however
the Munisi case is distinguishable …It is not clear at what
stage Accused person was (indistinct) with that anger. Was it when he
went into the house to get the key or he went to collect his gun or
at the point of pulling the trigger. ... One obviously sympathises
with the plight of the Accused person’s wife and children, but
especially the wife. They will definitely suffer with the Accused
person incarcerated. Unfortunately such is the natural consequence of
crime. An adequate sentence is called for in this particular case.
While there may be some mitigatory features present in this case they
are not as adequately strong as to justify complete departure from
the norm of sentencing in murder cases. Both the State and the
Defence could not refer this Court to any Namibian authority in
support of their respective suggestions for sentence. A totally
suspended sentence as suggest by the I Defence is totally out of the
question. The State as mentioned above also suggested five years
imprisonment, but this Court was not provided with any binding
authority in support obviously as demonstrated above not on all fours
with the present case. While the cases of S v Steenkamp …(35
years) … S v Ronnie Noabeb … (35 years) … S v
Samotwane CC29/06 … (30 years) … S v Gerald Kashamba …
(20years) … may not be on all fours with the present case in
that the ‘victims were either spouses or girlfriends of the
Accused persons. There can be no denying that by these cases a clear
highway has been graded by the Higher Courts for the lower courts to
follow in the case of sentencing in murder cases. This Court has
already mentioned and agrees with the Defence and the Accused that
the Deceased had provoked the Accused person and that we heard the
Deceased was generally a nuisance. The Deceased may have been a
spoilt brat as his sister testified, but it is only the law of the
jungle which calls for such people to be exterminated. ..



From
the cases cited and the circumstances favourable to the Accused one
not a find a (indistinct) to depart from general trends in sentencing
murder cases. As already mentioned having taken that into account and
the nature of the offence tied together with the real interest of
society and weighing them against the interest of the Accused person
this Court unfortunately finds itself unable to agree with both the
State and the Defence on the sentence, sentences proposed. While the
Court may sympathise with the Accused person impartial and apply the
law as it is. In fact our criminal justice delivery system remains
both respectable, reliable. (indistinct) predictable, because Courts
of law must and do operate on sound principles and above personal
feelings In my view that is the golden rule that cannot be lightly
departed from. In the result the Court taking into account Accused
person’s interest and (indistinct) set by the superior courts,
especially in the cases cited above and also the Nakapawa Johannes
case supra which by all standards is far less serious than this one
in that the Accused was a female offender and who was committed of
murder with legal intent this Court is of the belief that the maximum
of twenty years will still be just and equitable, however given
Accused person’s advanced age and perhaps that there are strong
and mitigatory features which both the State and the Defence find to
be present, but which still remain a bit elusive the Accused person
will be sentenced as follows:…. FIFTEEN (15) YEARS
IMPRISONMENT of which FIVE (5) YEARS IS SUSPENDED FOR FIVE (5) YEARS
on condition Accused is not convicted of murder or attempted murder
committed during the period of suspension. Secondly the gun and the
silencer produced as Exhibits are forfeited to the State (indistinct)
in terms of Section 10(6) of Act 7 of 1996, the Accused person is
declared unfit to possess a firearm for a period of ten years which
period shall run from the time Accused person completes his sentence.
… ̕








[56] Interestingly enough
the learned magistrate chose to add that: ‘… This
sentence and conviction are very much appealable … ̕








The applicable
principles








[57]
Mr McNally referred the court to the Supreme Court decision of S v
van Wyk
2
where Ackerman AJA
formulated the applicable approach on appeal as follows:








Punishment
being pre-eminently a matter for the discretion of the trial Court,
the powers of a Court on appeal to interfere with sentence are
limited. Such interference is only permissible where the trial Court
has not exercised its discretion judicially or properly. This occurs
when it has misdirected itself on facts material to sentencing or on
legal principles relevant to sentencing. It will also be inferred
that the trial Court acted unreasonably if (t)here exists such a
striking disparity between the sentences passed by the learned trial
Judge and the sentences which this Court would have passed
(Berliner's case supra at 200) - or, to pose the enquiry in the
phraseology employed in other cases, whether the sentences appealed
against appear to this Court to be so startlingly (
S
v Ivanisevic and Another

(supra at 575)) or disturbingly (
S
v Letsolo

I 1970 (3) SA 476 (A) at 477) inappropriate - as to warrant
interference with the exercise of the learned Judge's discretion
regarding sentence'.



S
v Whitehead
1970 (4) SA 424 (A) at 436D-E. Compare also S v
Anderson
1964 (3) SA 494 (A); S v Letsoko and Others 1964
(4) SA 768 (A) at 777D-H; S v Ivanisevic and Another 1967 (4)
SA 572 (A) at 575G-H and S v Rabie 1975 (4) SA 855 (A) at
857D-F.








A
Court of appeal will not readily differ from a trial Court in its
assessment either of the factors to be had regard to or as to the
value to be attached to them;
S
v Fazzie
and Others 1964
(4) SA 673 (A) at 684;
S v
Berliner
1967 (2) SA 193
(A) at 200D.’
3








[58]
Counsel also referred the court to
S
v Tjiho
4
where Levy J stated:








In
terms of the guidelines to which I referred above, the appeal Court
is entitled to interfere with a sentence if:



(i)
the trial court misdirected itself on the facts or on the law;



(ii)
an irregularity which was material occurred during the sentence
proceedings;



(iii)
the trial court failed to take into account material facts or
over-emphasised the importance of other facts;



(iv)
the sentence imposed is startlingly inappropriate, induces a sense of
shock and there is a striking disparity between the sentence imposed
by the trial court and that which would have been imposed by the
court of appeal.



(Straf
in Suid-Afrika Du Toit; cases cited by him.)’
5








[59]
It appears from the judgment of the Court a quo that it correctly
considered the main principles applicable to sentencing as expounded
in
S v
Zinn
1969
(2) SA 537 (A) and the triad of factors which had to be considered,
consisting of the crime, the offender and the interests of society.
The court also did not omit to consider the main purposes of
punishment as referred to in
S
v Khumalo and Others
1984
(3) SA 327 (A), namely, deterrence, prevention, reformation and
retribution.








[60]
In our view the same cardinal question, as posed by the learned judge
of appeal, in
S
v van Wyk
6,
also arises in this instance:








As
in many cases of sentencing, the difficulty arises, not so much from
the general principles applicable, but from the complicated task of
trying to harmonise and balance these principles and to apply them to
the facts. The duty to harmonise and balance does not imply that
equal weight or value must be given to the different factors.
Situations can arise where it is necessary (indeed it is often
unavoidable) to emphasise one at the expense of the other. It is
more, although not exclusively, in this context that it was submitted
that the Court a quo had wrongly overemphasised the retributive and
deterrent aspects of punishment at the expense of the accused's
personal circumstances, his psychological background, and his mental
state (in broad sense) at the time of the murder… ̕.
7








[61] If one then
considers the submissions on sentence made by Mr McNally on appeal:








‘… In
casu, the Learned Judge ignored the principle of individualisation in
sentencing, in his quest to keep up with the trend of sentencing in
murder cases. In so doing, it is respectfully submitted, he erred. …



In
casu, it would be submitted the chances of Appellant re offending is
nil. To send a 71 year old man who has led a blameless life all his
life, serves no purpose other than to break him. …



It
is respectfully submitted that the circumstances of the case does not
require for Appellant to be broken.



The
Appellant, has learnt his lesson.



One
is tempted to ask rhetorically what purpose would be served to sent a
71 year old man to prison for 10 years. To deter him?; To reform
him?; Because he is a danger to society? Because an example need to
be made of him? …



The
undisputed evidence adduced before the Learned Magistrate was that
the Appellant was not violent. He was not a danger to the Namibian
Society in general, and the society of Tses in particular. …



He
has shown genuine remorse.



In
casu, the Learned Magistrate went out of his way to emphasize the
seriousness of the offence, and in his view this took an overriding
importance over the other factors to be considered in imposing an
appropriate sentence. In so doing, it is respectfully submitted the
Learned Magistrate erred. …



General
deterrence should not take overriding importance over and above
specific deterrence. …



The
public interest is not served by sending 71 year old exemplary member
of society to prison. …








The
Learned Magistrate lost sight of the unique facts of the matter
before him. There was no need to send out a general message, within
the context of the facts of the particular case. …



The
Learned Magistrate, payed lip service to the strong mitigatory
factors advanced on behalf of Appellant. It will be submitted that
the strong mitigatory factors, by far exceeded the need to remove
Appellant from society, and especially for such a lengthy period of
time.’








It does indeed appear
that the learned magistrate in the court a quo could not quite
divorce himself from the severe sentences imposed in the S v
Steenkamp
…(35 years) … S v Ronnie Noabeb
(35 years) … S v Samotwane CC29/06 … (30 years)
S v Gerald Kashamba … (20years) …
matters. These sentences obviously also contain - as a predominant
element - the element of general deterrence. Mr McNally is correct in
his submissions that this element cannot and should not have played a
prominent role in the sentencing equation of the appellant, given the
circumstances of this case, as ‘ … there was no need
to send out a general message, within the context of the facts of the
particular case
‘ … were the appellant - now a 73
year old man – who was a first offender at the age of 71 and
otherwise had also led a blameless life - had learnt his lesson - had
shown genuine remorse - was not violent – and was no danger to
the Namibian society in general – and were the questions could
legitimately be posed : what purpose would be served to send such a
person to prison for 10 years. – and where the related
questions: ‘to deter him?; to reform him?; because he is a
danger to society? or because an example needs to be made of him? –
all should be answered in the negative.



[62] We accordingly find
that the aspect of deterrence was over-emphasised, whereas the strong
personal mitigating factors in favour of the appellant were under -
emphasised.








[63] In our view the
learned magistrate got the complicated task - of trying to harmonise
and balance the principles applicable to sentencing and to apply them
to the facts - wrong in these respects.








[64] Even if we are wrong
on this, and in any event, the sentence imposed by the court a quo
also induces a sense of shock in the sense that there is a startling
disparity between the sentence imposed by the trial court and the
sentence which we deem appropriate, as will appear below.








[65] Having considered
all the facts relevant to sentence in this case we are persuaded that
the imposed sentence is so severe that it warrants interference from
this court.








[66] In the result:









  1. The appeal against the
    appellant’s conviction is dismissed.










  1. The appeal against
    sentence succeeds and is replaced with the following sentence:









TEN
(10) YEARS IMPRISONMENT of which FIVE (5) YEARS ARE SUSPENDED FOR
FIVE (5) YEARS on condition that Appellant is not convicted of murder
or attempted murder committed during the period of suspension.































































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



H GEIER



Judge













I agree


















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



DF SMUTS



Judge


































































































APPEARANCES








APPELLANT: P McNally



LorentzAngula Inc.,
Windhoek








RESPONDENT: EN Ndlovu



Office of the Prosecutor General,



Windhoek





























1See
for instance :
S v Tjiho (2) 1990
NR 266 (HC) at 270 - 271,
S v Maans
1991 NR 119 (HC) at p 120, S v
Teek
2009 (1) NR 127 (SC) at 133 para [15].





21993
NR 426 (SC)





3at
ps 447 - 448





41991
NR 361 (HC)





5at
p 366





6Op
cit





7At
448