Court name
High Court Main Division
Case number
CC 9 of 2013
Title

S v Lebeus (CC 9 of 2013) [2015] NAHCMD 39 (08 May 2015);

Media neutral citation
[2015] NAHCMD 39
Coram
January J











REPUBLIC
OF NAMIBIA


HIGH
COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI


SENTENCE



Case no:
CC 09/2013


DATE:
05 AUGUST 2015


NOT
REPORTABLE


In
the matter between:


THE
STATE


And


LAMEK
LEBEUS..................................................................................................................ACCUSED


Neutral
citation:
S v Lebeus
(CC09-2013) [2015] NAHCNLD 39 (05 August 2015)


Coram:
JANUARY J


Heard:
12 MAY 2015, 4 JUNE 2015, 28 JULY 2015


Delivered:
05 AUGUST 2015


Flynote:


Sentence
Competent verdict to murder ─
Culpable homicide ─ Guidelines of principles and factors to be
considered ─ Mitigating and aggravating circumstances.


Summary:
Accused was indicted for murder but
convicted for culpable homicide. He assaulted the deceased by
inflicting one fatal stab wound on the back of the deceased.


ORDER


The
accused is sentenced as follows;


9
(nine) years’ imprisonment of which 4 (four) years’ are
suspended for 5 (five) years on condition that the accused is not
convicted for culpable homicide or assault with intent to do grievous
bodily harm committed within the period of 5 (five) years of
suspension.


JUDGMENT
ON SENTENCE


JANUARY,
J


[1]
The accused in this matter stands convicted for Culpable Homicide. He
was indicted for Murder but this court found that the intention to
murder was not proven beyond reasonable doubt. The deceased died as a
result of a single stab wound that was inflicted to the chest from
the back, “posterior side
.


[2]
The Post-Mortem report reads as follow:


a.
Corpse of an African female adult, with
shirt and jean trouser soaked with blood. We noticed dried blood over
the face and forearm.


b.
One fatal stab wound to the chest
(posterior side). See report and photography.


c.
No defense wound was present


d.
Severe visceral pallor.


e.
The cause of death was a stab wound to the
chest.


[3]
The State called 2 (two) witnesses in aggravation and the accused
testified in mitigation. Mr. Linus Shanghilifa is 79 years of age and
a pensioner. He is the father of the deceased and was a pastor at
ELCIN church before his pensioning. The deceased was his third born
child. The deceased was the only child who was employed as a nurse
and business women. The deceased used to sell cool drinks, food and
groceries and she opened a bar shortly before she passed away. This
witness retired in 2007 and the deceased was the only one assisting
him, the father and his three other children who are unemployed. She
was the breadwinner of the family, bought food for the family and
assisted with their medical aid. After her death the family is
suffering.


[4]
The witness only heard about a possibility that the relatives of the
accused wanted to compensate the family of the deceased. The deceased
business was in the meantime closed.


[5]
In cross-examination the witness testified that his wife also
receives pension money. He heard that compensation was taken to the
Traditional Authority at Ohangwena. The witness does not know what
happened to this money. He never talked to the accused and/or the
family of the accused. The witness is not willing to forgive the
accused unless he could first talk to him. The deceased did not have
any children but was assisting with the education of other children
in the family.


[6]
The husband of the deceased testified that he is employed as a
cameraman at NBC (Namibian Broadcasting Corporation). This witness
and the deceased had family businesses, five mini markets that they
operated. She was responsible for the financial management. It is a
big loss to the family that the deceased passed away. The deceased
assisted in supporting her two brothers who are unemployed, she
supported children in the family, her parents and other persons in
the family as she was the only one with education in the family. The
husband also lost a lot of things. They gave credit to people,
selling things on credit. People who made use of these benefits
alleged that they have settled their debts with the deceased for
instance. The accused did not apologize to him and neither did his
family. The accused’s family offered N$2000.00 for the funeral
which was refused. The husband expects a stiff sentence to be meted
out.


[7]
In cross-examination the witness testified that he heard about
compensation money and two cattle that were handed to the Traditional
Authority at Ohangwena but the family refused it. The husband refused
the apology extended in court by the accused.


[8]
In re-examination the husband said that he regards 40 years
imprisonment or more as appropriate. He stated that it is appropriate
because the deceased was a qualified nurse and she assisted the
community, she created job opportunities and she was a defenceless
woman.


[9]
The accused testified that he is 23 years old. He is in custody for
two years and five months now. He was unemployed at the time of the
commission of the crime. He attended school up to grade 12. He
attempted to register at NAMCOL thereafter but was unsuccessful.
Before his arrest he was supposed to register at VTC (a training
college) but was arrested. He intends to continue with his education
at VTC. He said that he feels bad about the incident because he
committed an offense. He requested the court to sentence him with a
fine. He is prepared to assist the family if he gets the chance. He
is not married but has one child of two years old who is staying with
the mother. Both his parents are deceased.


[10]
I have considered the main objectives of punishment i.e. prevention,
deterrence, reformation and retribution with reference to the case of
S
v
Rabi 1975 (4) SA 855

at 862 referred to with approval in
S
v Tjiho 1991 NR (HC) 361

and numerous other cases following. In meting out a sentence I have a
judicial discretion to exercise in accordance with judicial
principles.[1]


[11]
I bear in mind the factors of the nature of the crime, the interests
of society and the interests of the accused referred to in
S
v Zinn 1969 (2) SA 537 (A)
and referred
to with approval also in
S v Tjiho
(supra)
and many other cases in
Namibia. I must strive to affect a balance between the interest of
the accused and the interest of society in relation to the crime.


[12]
The mitigating factors are that the accused is a first offender and
he is relatively young at the age of 23 years old. The accused
testified that he is remorseful and apologized in open court to the
family and relatives of the deceased. The accused is in custody from
05 January 2013 calculating to 2 years and 7 months trial awaiting
until today. This court found that the accused was attacked by the
deceased and he was in the circumstances entitled to defend himself
to ward off the attack.


[13]
This aspect needs to be put in its correct perspective. The evidence
indicates that the accused was previously prohibited and warned not
to visit or come to the cuca-shop of the deceased. Despite the
warning, the accused went to the deceased’s cuca-shop armed
with two open knifes. I could not and did not find that he
premeditated the assault on the deceased because his version and
reasons why he had the two open knifes are reasonably possibly true.
He stated that he had the Okapi knife and used it to peel a lemon and
the knife with a fix blade he had because he cut sausages at a
cuca-shop where he assisted in sales of things.


[14]
I take into account the mitigating factors, personal circumstances of
the accused, the fact that he pleaded not guilty and testified that
he is remorseful of what he did. Accused is a first offender at the
age of 23 years. The evidence established that the accused did not
apologize to family and relatives of the deceased previously. I
accept that he was in custody since his arrest. I do not attach any
weight to his
ipse dixit that
he is remorseful. Soon after the stabbing took place, the accused
referred to the deceased as a bitch saying to some State witnesses;
“take this bitch to hospital, I stabbed her.” This is
certainly no indication of remorse.


[15]
I am mindful that the sentence should be blended with the element of
mercy.


[3]
It has also been recognised by our courts that punishment should be
'blended with a measure of mercy according to the circumstances'. S v
Rabie 1975 (4) SA 855 (A) at 862G.[2]


[16]
In considering the aforementioned factors of the accused's personal
circumstances, the crimes committed and the interests of society, I
am mindful that the court needs not give equal weight to each factor,
as situations may arise where it is necessary to emphasize one at the
expense of the other. This will largely depend on the particular
circumstances of the accused person as well as the seriousness of the
crime and the circumstances surrounding it. [3]


[17]
I agree with Damaseb JP where he remarked in S v Kaanjuka 2005 NR
201 (HC) at 206 F-I;


Brutality
against the vulnerable in our society, especially women and children,
has reached a crisis point. Small children have become the target of
men who are unable to control their base sexual desires. What once
may have been unthinkable had now become a quotidian occurrence - a
fact which the learned magistrate, as he did, was entitled to take
judicial notice of. These crimes against the vulnerable in our
society evoke a sense of helplessness in the national character. The
courts are doing their utmost, through very stiff sentences, to deter
men from raping women and small children, but, apparently, without
much effect. Rehabilitation and general deterrence should therefore
have very little relevance when it comes to considering sentences for
these kinds of sexual offenders. I am sure that laws do not make
people moral, but the courts as custodian of our laws must exact
vengeance for people's actions, when those threaten the fabric of our
society, lest the general populace lose faith in the legal system and
resort to means not concordant with our Constitution. Those who
commit despicable and heinous crimes against women and children,
crimes that we have, shamefully, now become accustomed to as a
community, should expect harsh sentences from the courts of this
land.”


[18]
There is a public outcry against this kind of senseless violence
against vulnerable women and children and that it is met with lengthy
custodial sentences. This court also strives toward eradicating
senseless violence against women and children.


[19]
After having considered the abovementioned factors, the nature of the
crime committed, the personal circumstances of the accused and the
interest of society, I am convinced that this court should emphasize
retribution and deterrence. I also take into account the cumulative
effect of the sentence and strive towards blending it with the
element of mercy taking into consideration the time he was trail
awaiting. I have to mention that in accordance with the law, a
difference has to be made between culpable homicide in motor vehicle
accidents and incidents where negligence in relation to bodily
integrity towards victims is perpetrated.[4]


I
did observe the accused in court and am of the view, considering his
demeanour and age that he has the potential of reform, and
rehabilitation. I find, however that he has to serve a custodial
sentence at least in part.


[20]
In accordance with what I have considered, the accused is sentenced
to:


9
(nine) years’, imprisonment of which 4 (four) years are
suspended for 5 (five) years on condition the accused is not
convicted for culpable homicide or assault with intent to do grievous
bodily harm committed within the period of 5 (five) years of
suspension.


H
C JANUARY


JUDGE


APPEARANCES:


FOR
THE STATE Mr. Matota


Office
of The Prosecutor-General


FOR
ACCUSED: Mr. Aingura


Director
of Legal Aid, Oshakati



[1]
S
v Tjiho 1991 NR (HC) 361 at 364




[2]
S
v AUALA (No 2) 2008 (1) NR 240 (HC) at




[3]S
v Van Wyk 1993 NR 426 (SC) (1992 (1) SACR 147) at 448D - E.




[4]
See: Sentencing, DP Van der Merwe 1991 7-4: and [17] This
pronouncement was made in the context of the culpable homicide
caused by negligent driving. As is stressed in the work Sentencing
by DP van der Merwe (1991) at 7-4, culpable homicide caused by an
assault as opposed to being caused by negligent driving is correctly
generally treated with a heavier hand. There are clearly sound
reasons for doing so.