Court name
High Court
Case name
Gariseb v S
Media neutral citation
[2009] NAHC 71





REPUBLIC OF NAMIBIA







REPUBLIC OF NAMIBIA











CASE NO. CC5/2003







IN THE HIGH COURT OF NAMIBIA











In the matter between:











JOSEPH GERSON GARISEB
Applicant







and







THE STATE
Respondent











CORAM: VAN
NIEKERK, J







Heard: 15 June 2009



Delivered: 22 June 2009















JUDGMENT: APPLICATION FOR
LEAVE TO APPEAL







VAN NIEKERK, J: [1] This
is an application for leave to appeal against sentence. I convicted
the applicant and his co-accused on 16 October 2006 after a trial on
a count of murder, three counts of housebreaking with intent to rob
and robbery with aggravating circumstances and one count of robbery
with aggravating circumstances. On the count of murder I sentenced
applicant to a prison sentence of 40 years. On count 2 the Court
sentenced him to 16 years imprisonment and ordered that 11 years run
together with the sentence on count 1. All the other sentences of
14, 8 and 3 years respectively were ordered to run concurrently with
the sentence imposed on count 1. The effect is that the applicant
must serve 45 years in total.







[2] Applicant obtained the
assistance from another inmate to draw his application for leave to
appeal. Some of the seventeen or so grounds of appeal are impossible
to understand. When I asked applicant, who appeared in person,
whether he could explain their meaning or intention, he was also at a
loss to shed any light on them. I shall therefore confine myself to
those grounds of appeal that are comprehensible. Applicant further
stated during oral argument that his complaint is against the 40 year
sentence on count 1 and not against the other sentences imposed. The
result is that the grounds of appeal may be conveniently combined and
summarized to the following:








  1. The Court erred in not finding
    that the applicant committed the offence of murder with the absence
    of
    dolus directus.



  2. The Court erred in its
    assessment that there were aggravating circumstances present. More
    particularly, the Court erred in its findings that applicant wielded
    a dangerous weapon before, during or after the commission of the
    crimes, and/or inflicted grievous bodily harm and/or threatened to
    inflict grievous bodily harm.



  3. The Court erred in
    under-emphasising the mitigating factors and over-emphasising the
    aggravating factors, particularly the seriousness of the offence.



  4. The Court erred in
    under-emphasising the reformative purpose of punishment.



  5. The sentence of 40 years on
    the murder count is shockingly inappropriate.








[3] The first ground of appeal
is clearly erroneous. The finding of the Court was indeed that the
murder was committed with absence of
dolus
directus.




[4] The second ground of appeal
is strictly speaking only relevant in relation to counts 2-5 where
the indictment alleged (and the Court found) that aggravating
circumstances as meant in section 1 of the Criminal Procedure Act, 51
of 1977, were present. I deal with this aspect because it receives a
great deal of attention in the application for leave to appeal.
Furthermore during oral argument is appeared that applicant felt
aggrieved because he allegedly did not inflict the fatal blows with
any of the instruments used to assault the deceased.







[5] Applicant overlooks an
important aspect of the Court’s finding on the merits of this
matter. This is that he and the co-accused committed the murder and
the other offences with common purpose. It therefore does not matter
who dealt the fatal blows. I did find in their favour that the State
did not prove that they planned to murder the deceased. However,
they did plan to attack and overpower the deceased and they both
participated to about equal degree in carrying out this plan. They
each assaulted the deceased in various ways in the presence and to
the knowledge of the other in the execution of their common purpose,
which was to obtain the keys to the safes and shop and to lay their
hands on money and other valuables. In the process they repeatedly
assaulted and tortured the deceased in a cruel manner and tied him up
so that he could not defend himself or escape. Even if the home made
braai fork used during the assaults was not intended to be used as a
weapon when it was made by applicant’s co-accused, it was used very
effectively to cause pain and injury on several places on the
deceased’s body. The co-accused carried a large knife to the
knowledge of applicant when they left Kransneus that day. This knife
was also used in the attack upon deceased. Other items like a
knobkierie, a wooden dropper and a vehicle exhaust pipe were also
found close by the deceased’s body of which at least the latter was
indeed used to hit the deceased on the head. The main cause of death
was the head injuries. There is also evidence that applicant kicked
the deceased with a shod foot in the ribs. What is clear is that all
the items involved were used as weapons and clearly were used in a
dangerous manner. In my view there is no merit in this ground of
appeal.







[6] Regarding the third ground
of appeal applicant submitted that the mitigatory factors were
ignored or under-emphasised. The mitigatory factors were certainly
not ignored as the judgment on sentence clearly shows. However, the
problem for applicant is that the mitigatory factors are so few. The
Court had regard to his personal circumstances, upbringing and
education, but found that the aggravating factors far outweigh the
few mitigating factors. I specifically dealt with the reasons why I
considered his youthfulness not to be a factor which should incline
me towards a much lighter sentence. It is permissible to accord
different weights to the different relevant factors when considering
what sentence to impose, (
S
v De Kock
1997 (2)
SACR 171 (T) 197
g-h),
even to the extent that mitigating factors have no actual effect on
the sentence, especially if the crime is really serious. For
example, in
S v
Skenjana
1985 (3) SA
51 (A) 54A, the Appellate division agreed with the Court
a
quo
that the
personal circumstances of the appellant did not have a great deal of
weight when viewed against the enormity of the crime committed. In
this case the same approach was taken. The Namibian Supreme Court in
the case of
S v
Paulus Alexander

(Case No SA 5/1995 unreported judgment delivered 13/2/03) followed
the same approach having referred with approval to the case of
S
v Matolo
1998 (1)
SACR 206 (O) at 211D-F
,
where the following
was said (the quote is from the English headnote at 208G-I):







Held,
that in cases like the present the interests of society is a factor
which plays a material role and which requires serious consideration.
Our country at present suffers an unprecedented, uncontrolled and
unacceptable wave of violence, murder, homicide, robbery and rape. A
blatant and flagrant want of respect for the life and property of
fellow human beings has become prevalent. The vocabulary of our
courts to describe the barbaric and repulsive conduct of such
unscrupulous criminals is being exhausted. The community craves the
assistance of the courts: its members threaten,
inter
alia
,
to take the law into their own hands. The courts impose severe
sentences, but the momentum of violence continues unabated. A court
must be thoroughly aware of its responsibility to the community, and
by acting steadfastly, impartially and fearlessly, announce to the
world in unambiguous terms its utter repugnance and contempt of
such conduct.”







[7] I do not think that there
is any reasonable prospect that the Supreme Court will disagree with
the approach I followed or the manner in which I applied it to the
facts of this case.







[8] As far as the fourth ground
of appeal is concerned, there is no merit in it. Although I agree
with applicant’s submission that the long period of effective
imprisonment imposed in this case would not tend to his
rehabilitation, the aim of the punishment was to remove the applicant
from society for a very long time because of the danger he poses to
it. That this is a permissible approach in appropriate cases is
clear (see e.g.
S v
Nkambule
1993 (1)
SACR 136 (A) 147
f; S
v Mhlakaza
1997 (1)
SACR 515 (SCA) 519
h-i).
The applicant’s record of previous convictions does not fill me
with much hope that he will reform. He committed the offences in
this case while on the run from the police after having committed a
serious offence of housebreaking with intent to steal and theft for
which he served two years imprisonment and indicates a severe lack of
respect for society and the law. The violent and cruel nature of the
assaults upon the deceased showed the applicant to be a merciless
person who did not shirk from torturing the deceased in various ways
to extract information from him about the whereabouts of the keys in
order to lay his hands on deceased’s money and other valuables.







[9] The approach that
rehabilitation must take a backseat in the face of the overwhelming
seriousness of the crime committed has been followed also in this
jurisdiction, e.g. in
S
v Gerson Tjivela

(Supreme Court Case No. SA 14/2003 unreported judgment delivered
16/12/2004 at p5).







[10] I now turn to the last
ground of appeal. Ms
Verhoef
for the State submitted that the sentence imposed in this matter is
well within the usual limits for serious cases comparable with the
case under consideration and does not create a sense of shock. This
is indeed so. In the light of what I have already stated about this
particular case, both in the main judgments as well as in this
judgment above, I have no doubt that the sentence is appropriate.
Even if the Supreme Court might consider imposing a lesser sentence,
I am confident that there is no reasonable prospect that that Court
will be inclined to reduce that sentence to such an extent that it is
likely come to the conclusion that I failed to properly exercise my
discretion in determining the length of imprisonment on count 1.







[11] The result is therefore
that the application for leave to appeal against sentence is
dismissed.















_______________________



VAN NIEKERK, J















Appearance for the parties:







For applicant:
In person







For respondent:
Ms A Verhoef



Office of the
Prosecutor-General