S v Bohitile (CA 43/2006) [2007] NAHC 207 (14 November 2007); 2007 (1) NR 137 (HC)

Group

Headnote and flynote
Flynote: 

Criminal procedure - Sentence - Domestic violence - Should be aggravating factor in sentencing - Such violence prevalent in Namibian society - In sentencing courts must reflect intolerance of violence against women - personal circumstances of accused important - However, courts wanting to send clear message to society - Protection of human dignity and equality between men and women under Constitution important.

 

Headnote and Holding: 

The prevalence of domestic violence and the compelling interest of society to combat it, evidenced by the recent legislation to that effect, required that domestic violence should be regarded as an aggravating factor when it came to imposing punishment. Sentences imposed in this context, whilst taking into account the personal circumstances of the accused and the crime,  should also take into account the important need of society to root out the evil of domestic violence and violence against women. In doing so, these sentences should reflect the determination of courts in Namibia to give effect to and protect the constitutional values of the inviolability of human dignity and equality between men and women. The clear and unequivocal message which should resonate from the courts in Namibia was that crimes involving domestic violence would not be tolerated and that sentences would be appropriately severe.

 

Law Report Citation: 
2007 (1) NR 137 (HC)
Full judgment

Case No

CA 43/2006

Court

High Court

Judge

Smuts AJ

Heard

November 13, 2007

Judgment

November 14, 2007

Counsel

L Mokhatu as amicus curiae for the appellant.
A Muvirimi for the State.

Judgment

Smuts AJ:

[1] The appellant has appealed to this court against the sentence of five years' imprisonment with one year suspended imposed on him in the regional court on a count of culpable homicide. He pleaded guilty on the charge and was convicted and sentenced on 21 July 2004.

[2] On perusing the record of the proceedings of the trial, I formed the impression, prima facie, that the sentence imposed by the regional magistrate might be considered to have been inadequate in the circumstances of the case. I accordingly caused notice to be given by the I registrar to the appellant's amicus curiae counsel as well as to the Prosecutor-General, and with a copy forwarded to the clerk of the magistrates' court, to the effect that this court required to hear argument as to why the sentence imposed by the regional magistrate should not be increased.

[3] The circumstances which gave rise to the notice are these.

[4] The appellant was the intimate partner of the deceased. They were engaged in a long-term relationship. They had been living together in this way since 1997 until the death of the deceased in March 2003. The record however contains a paucity of evidence concerning the commission of the crime and the factors relevant to sentencing.

[5] The appellant pleaded guilty to a charge of culpable homicide on the basis of assaulting the deceased, causing wounds and injury to her which then caused her death. There was a short statement made by the appellant under s 112 of the Criminal Procedure Act 51 of 1977 explaining his plea. In this statement he admitted unlawfully and wrongfully assaulting the deceased and inflicting a mortal wound or injury as a result of which she died on 14 March 2003. He expressly admitted that the deceased died as a result of the injuries inflicted upon her which would have been foreseen by a reasonable man in the circumstances and that he was negligent in causing her death. The regional magistrate then duly convicted the appellant of culpable homicide.

[6] The prosecutor then handed up the postmortem report, which was received by agreement and placed certain facts before the court which were confirmed by the appellant's legal representative. These facts included that the appellant had been away for about a week and returned to his home and the deceased on 13 March 2003. Upon his return the deceased informed the appellant that she had been raped. In his representative's address in mitigation of sentence, it was stated that the appellant argued with the deceased and that she was suspected of unfaithfulness to the appellant.

[7] What is however clear from both addresses, is that the appellant then set about assaulting the deceased with a sjambok. The postmortem report refers to the effect of these blows as multiple abrasions all over the body, with most of these located on the left side of the body with bruising around those abrasions.

[8] As is described in the postmortem report, the abrasions were linear in nature. There were however several. On the mid- and upper back, the report refers to eight large abrasions in a criss-cross direction, providing their large measurements. There were seven further large abrasions counted on the deceased's buttocks. Their measurements are likewise provided. In addition, there were two large abrasions on her left arm, eight large abrasions on her left leg, widespread bruising on the right thigh, five large abrasions on the right arm, and five large abrasions on the right leg are also counted. There was thus evidence of at least 35 linear abrasions and further bruising on the right thigh not indicating specific linear abrasions. In addition to these injuries, there was a small I bruise on the deceased's nose. There was also a large abrasion on the right-hand side of the deceased's neck. These injuries thus show repeated and sustained blows.

[9] Despite the massive beating which the appellant inflicted upon the deceased, he did not take her to hospital that night. It is conceded by his legal representative at the trial that this could possibly have saved her life.

The appellant however took her to hospital the next morning and, according to his representative, the deceased died on the way to hospital. The cause of death as indicated in the postmortem report was neurogenic shock due to blunt trauma all over her body. The appellant thereafter reported the matter to the police. He was taken into custody and remained in custody until his conviction and sentencing more than a year later on 24 July 2004.

[10] In mitigation of sentence, it was stated on his behalf that the appellant was a first offender, then 43 years old. Although unmarried, it was pointed out that he is the father of 16 children born from seven different relationships. It was also pointed out that as a businessman and musician, he provided employment to others and that he had shown remorse by paying all the expenses of the deceased's funeral. The appellant did not however give any evidence himself. This court is confined to what is stated on his behalf by his representative as to his personal circumstances.

[11] The regional court then proceeded to impose the sentence I have already set out. In doing so, the court rejected the plea for a fine and a suspended sentence but imposed a custodial sentence with a portion suspended. The condition of suspension is that the appellant is not convicted of the crime of culpable homicide during the period of suspension.

[12] On appeal, amicus curiae counsel on behalf of the appellant, Mr Mokhatu, submitted that the regional magistrate committed irregularities and failed to exercise a discretion judicially in passing the sentence on the appellant. In particular, it is contended that the magistrate misdirected herself in failing to consider the possibility of imposing a wholly suspended sentence upon the appellant. I find myself unable to agree with these submissions.

[13] In her judgment, the regional magistrate referred to the prevalence of crimes involving violence against women in the district in question. Indeed, she recorded that it was common cause that violence against women is on the increase within that region. She also pointed out that it was common cause that there is an outcry from members of the public and society concerning levels of violence against women.

[14] The regional magistrate also referred to the extensive nature of the injuries inflicted upon the deceased and that it would appear that the appellant did not bother whether the deceased would die or survive the attack. The appellant's counsel submitted that her latter comment constituted a misdirection. I disagree. In the explanation of plea, it is expressly admitted that the deceased died of injuries inflicted upon her I by the appellant and that this would have been foreseen by a reasonable man in the specific circumstances and that he was negligent. His negligence and the failure on his part to exercise a duty of care of a reasonable person in the circumstances would include the failure to have taken the deceased to hospital on the night of assault. 

[15] I have referred to the extensive nature of the beating which the appellant handed out to the deceased. The evidence evinces an act of brutality of grave proportions.

[16] I agree with Mr Muvirimi, counsel for the State, that culpable homicide is a very serious crime. After all, the death of a person has been B caused by the perpetrator. I agree that the approach in sentencing for culpable homicide was, with respect, succinctly set out in S v Nxumalo 1982 (3) SA 856 (A) (by Corbett JA, as he then was) at 861H - 862B in the following way:

It seems to me that in determining an appropriate sentence in such cases the basic criterion to which the Court must have regard is the degree of culpability or blameworthiness exhibited by the accused in committing the negligent act. Relevant to such culpability or blameworthiness would be the extent of the accused's deviation from the norms of reasonable conduct in the circumstances and the foreseeability of the consequences of the accused's negligence. At the same time the actual consequences of the accused's negligence cannot be disregarded. If they have been serious and particularly if the accused's negligence has resulted in serious injury to others or loss of life, such consequences will almost inevitably constitute an aggravating factor, warranting a more severe sentence than might otherwise have been imposed. It is here that the deterrent purpose in sentencing comes to the fore. Nevertheless, this factor, though relevant and important, should not be over-emphasised or be allowed to obscure the true nature and extent of the accused's culpability. As always in cases of sentencing, where different and sometimes warring factors come into play, it is necessary to strike a balance which will do justice to both the accused himself and the interests of society.

[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.

[18] In this case the culpable homicide arose from the violent assaulting of the deceased in a domestic context. The regional magistrate pointed out that crimes of that nature are on the increase in the district in question. She also referred to the public outcry against crimes involving domestic violence. It is indeed a notorious fact and one which I can take judicial notice of, that domestic violence and in particular violence against women, is widespread throughout Namibia. Mr Mokhatu correctly conceded this. This important factor, in my view, gives cause for appropriate deterrent sentencing. The prevalence of and the social problems connected with domestic violence have given rise to specific I legislation passed by Parliament in 2003 in the form of the Combating of Domestic Violence Act 4 of 2003.

[19] In his argument Mr Mokhatu stressed the importance of the appellant's personal circumstances and in particular being a first offender. Whilst this is undoubtedly an important factor and should be borne in mind, this is but one factor in sentencing. Arriving at an appropriate sentence involves balancing this with the other factors, such as the circumstances of the crime the appellant committed and the interests of society.

[20] It would seem to me that the learned regional magistrate misdirected herself by not sufficiently or adequately taking into account the aggravating factors of the crime itself and its context being one of domestic violence, even though these factors are referred to in her judgment. Given the seriousness of the crime committed by the appellant and its domestic context, I find that the sentence imposed is wholly inadequate and warrants interference. In reaching this conclusion, I am mindful that punishment is pre-eminently a matter within the discretion of a trial court and of the principles which underpin this approach and the interference of a court of appeal with regard to sentencing. (S v Van Wyk 1993 NR 426 (SC); S v Whitehead 1970 (4) SA 424 (A).)

[21] The prevalence of domestic violence and the compelling interest of society to combat it, evidenced by the recent legislation to that effect, require that domestic violence should be regarded as an aggravating factor when it comes to imposing punishment. Sentences imposed in this context, whilst taking into account the personal circumstances of the accused and the crime, should also take into account the important need of society to root out the evil of domestic violence and violence against  women. In doing so, these sentences should reflect the determination of courts in Namibia to give effect to and protect the constitutional values of the inviolability of human dignity and equality between men and women. The clear and unequivocal message which should resonate from the courts in Namibia is that crimes involving domestic violence will not  be tolerated and that sentences will be appropriately severe.

[22] In this case the deceased died as a consequence of the terrible assault perpetrated upon her by the appellant, her domestic partner.

[23] The sentence of the regional magistrate does not sufficiently take this into account and must be increased to do so. 

[24] A term of imprisonment of eight years with two suspended would in my view be more appropriate for this instance of culpable homicide with its aggravating features. The term of suspension by the regional magistrate is in my view also inappropriate and should rather relate to the commission of assault during the period of suspension where a custodial sentence is imposed without the option of a fine, rather than culpable homicide.

[25] In the result, I make the following order:

   (a)   The sentence is set aside and substituted with eight years' I imprisonment of which two years are suspended for a period of five years on condition that the appellant does not commit the crime of assault during the period of suspension for which a sentence of imprisonment without the option of a fine is imposed.

   (b)   The sentence is antedated to 21 July 2004.