S v Nkasi (CC 02/2010) [2010] NAHC 33 (12 April 2010);

Group

Full judgment




CASE NO.: CC 02/2010


IN THE HIGH COURT OF NAMIBIA

HELD IN OSHAKATI


In the matter between:



THE STATE



and



HERBERT CIMU NKASI



CORAM: LIEBENBERG, J.


Heard on: 29.03.2010

Delivered on: 12.04.2010


SENTENCE


LIEBENBERG, J.: [1] The accused stands convicted of six charges to wit, culpable homicide; murder; attempted murder; obstructing the course of justice; possession of a firearm without a licence; and the unlawful possession of ammunition. Because of the relationship of cohabitation between the accused and Sirkka, the mother of their two now deceased children, the provisions of the Combating of Domestic Violence Act, 2003 (Act No. 4 of 2003) find application and in terms of s.25 of the Act, Sirkka was called to give evidence regarding the circumstances she had been staying under with the accused and the type of person he was at the time he committed these heinous crimes.


[2] According to her she and the children were not cared for by the accused as she had been working the fields of others and for which she was given mahangu in return. She described the accused as a person who did not work; and when he went hunting, he would use the kill to buy liquor. She felt the loss of her children and repeatedly stated that she had no more children and seemed to have lost all interest in life. When asked in cross-examination whether she, being Christian, should not forgive the accused for what he has done, she replied that she will never forgive him for having killed her two children. This drew some criticism from defence counsel which I respectfully, find insensitive. I do not believe that anyone else could possibly know the pain and grief of this mother who has lost her only two children, one still a baby and the other six years of age, at the hands of their own father and then be criticised for being unforgiving. Her bitterness is understandable and her comments on the sentence to be imposed on the accused as one of either killing him or keeping him in prison, must be viewed against that background. She wants to see the accused being punished for what he has done which in legal terms is called retribution, one of the objectives of sentencing.

What the Court however must guard against, is for the emotions surrounding the case, to cloud its judgment.


[3] Through the years the courts have laid down guidelines which the court in sentencing should follow and although a trial court has a judicial discretion in sentencing an accused it has to be exercised in accordance with judicial principles. The main objectives of sentencing are prevention, deterrence, reformation and retribution and the sentencer must keep these in mind when he tries to strike a balance between the interests of the accused and the interests of society; in relation to the crime itself and in relation to the purposes of sentencing (S v Tjiho 1991 NR 361 (HC). This was generally summed up in S v Rabie 1975 (4) SA 855 (A.D.) at 862G-H to mean: “Punishment should fit the criminal as well as the crime, be fair to society, and be blended with a measure of mercy according to the circumstances.” It has often been said that it is no easy task to harmonise and balance these principles and to apply them to the facts of the case. Although each factor requires careful consideration, it does not imply that equal weight must be given to the different factors as, pending on the circumstances of each case, situations may arise where it would be necessary to emphasise the one at the expense of the other (S v Van Wyk 1993 NR 426 (HC).


[4] The accused’s personal circumstances are the following: He is 31 years of age and a first offender. He has no formal education and before his arrest made a living from hunting and doing odd jobs for others for which he would earn between N$20 – N$100 per month. He and Sirkka had been together for seven years and from their relationship two children were born (the deceased). During his cohabitation with Sirkka, he fathered two other children, aged 6 years and 3 years respectively, with different mothers. He said he, from time to time, maintained them from his meagre monthly earnings, which were clearly insufficient. Accused said that after the passing of his mother he also took care of his three minor siblings but this Sirkka denied. They have however in the meantime (2006) moved to their grandmother and are no longer the responsibility of the accused and thus, are of no relevance to sentencing. According to the accused he was the sole provider for Sirkka and the children as she was not interested in working. Bearing in mind that she had to provide for herself and the children in his absence, the accusation seems to be without merit.


[5] He further said that the liquor he consumed on the day he had beaten Nasira, could have been the cause of his actions and that he never intended killing any of his children. He said it was his first time to consume a brew called “kashibembe” and that it made him drunk. In cross-examination however it came out that it was not his first time to consume that type of liquor; furthermore, when he testified in his defence during the trial, he said that although he had been drinking earlier that day, he “walked home and felt fine.” Judging from the accused’s mobility that night i.e. walking home on his own from the drinking place; him picking twigs to hit the child with; his running after her in the dark and his apparent clear memory of the events taking place that evening, one does not gain the impression that his earlier consumption of liquor had affected his behaviour in any significant way, if at all. I find his attempt to paint a different picture in mitigation unconvincing and do not deem that to be a mitigating factor.


[6] Despite the accused being illiterate and following an unsophisticated life style, he by no means can be seen to be stupid. This was quite evident from the manner in which he had distorted the truth and fabricated evidence to favour him and give credence to his version. He persisted in this behaviour throughout and when caught out, was quick to blame someone else. It seems to me that he possesses a fair amount of natural cunning which he exerts to the detriment of others. This was also clear from the manner in which he obtained the firearm and keeping it out of sight from Sirkka during his visit to the mahangu field and upon their return.


[7] The accused’s expression of remorse over the loss of his children did not come across as sincere. After the death of his firstborn, for which he knew he was responsible, he thereafter intentionally fired one shot directly at his wife and child with the intention of killing them. At no stage before or after the trial did he say or do anything indicative of contrition on his part and even after his conviction he persists in his innocence. In these circumstances the factor of remorse certainly loses some of its weight due to the fact that to this day the accused remains unwilling to accept legal and moral responsibility for what he has done. It has been said that penitence must be sincere and that the accused must take the Court fully into his confidence before the genuineness of contrition can be determined (S v Seegers 1970 (2) SA 506 (A)). In the present case I am unable to find that the accused fully took the Court into his confidence and that the contrition he claims to exist, is sincere.


[8] The crimes the accused stands convicted of are indeed serious and regard must be had to the circumstances in which these were committed. The convictions of murder and culpable homicide involve his own children; whilst the attempted murder was directed against their mother, the accused’s lifelong companion (referred to during the trial as his “wife”). These children were aged about one and six years respectively and were the only children born from the relationship. As was pointed out in the judgement, these crimes squarely fall within the ambit of the Combating of Domestic Violence Act, 2003 and this Court has expressed itself strongly on crimes committed within a domestic relationship. I respectfully agree with the remarks made in S v Bohitile 2007 (1) NR 137 (HC) at 141D-F where Smuts AJ said:


[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.”


[9] Whereas the accused in this case on different occasions acted extremely violently against his “wife” and children who were completely defenceless against him during these attacks, his conduct is regarded as aggravating in sentencing and the Court will fail in its duty if it does not demonstrate its abhorrence and deprecation for the manner in which the accused had treated his own flesh and blood and his wife. Their protector had become their attacker; and even where the circumstances forced them to flee from him, he followed and gave effect to what he intended doing. The unconcerned and reprehensible attitude adopted by the accused after injuring Nasira during the first incident and after firing one shot at Sirkka and Sigcende on the second, demonstrates what type of person the Court is dealing with.

It seems to me that Eino can regard herself lucky that Risto appeared on the scene the moment the accused turned the firearm on her. It further seems evident that the accused by nature resorts to violence as a manner to make himself felt or when he experiences opposition; even if it results in death. To that end he is definitely a threat to society.


[10] As regards the incident involving Nasira, I will find in favour of the accused that he stood reckless in his actions (what he perceived to be chastisement) when beating the child. Although he started out hitting her with a thin stick (twig), the nature of the beating changed and it became more violent in that severe force was applied to the head of the deceased which eventually resulted in her death. It passes one’s understanding how a father could become só violent against his own child who was merely six years of age; and one shudders when trying to imagine what this child mentally had to endure during the assault. And all this took place in circumstances where, according to Sirkka, the child had done nothing wrong warranting such conduct by the accused.


[11] Culpable homicide is indeed a very serious crime; after all, the death of a person has been caused by the accused, more so, when the victim is a young innocent child who has lost her life at the hands of a person whom she could trust to protect her, not attack her. The callousness with which the accused had acted is evident from his remark afterwards that the child could die “because there are other good people who also die.” This was again apparent when he later fired at Sirkka holding his baby.

The sentence to be imposed for culpable homicide must be in relation to the culpability or blameworthiness exhibited by the accused when committing the crimes and I agree with the approach followed in Nxumalo v State 1982 (3) SA 856 (A) at 861H - 862B where Corbett JA, as he then was, said:


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.”


[12] In my view the degree of blameworthiness exhibited by the accused in this case and the death of his children as a result thereof are aggravating factors warranting severe punishment. Parents do not have carte blanche to punish their children in any manner they deem fit simply for the sake of being parents and therefore having the right to chastise their children as they please. There are limits to these rights and they are not absolute. We live in an orderly society which is governed by moral values and obligations and it is expected of all members of society to uphold and respect these values. It is therefore not in the interest of society when parents, like the accused in this case, trample on the values and rights of their children and others, only to make their authority felt. Unlike what many parents may think, children, even of tender age, also have rights which need to be respected. Here young children lost the most valuable right of all, namely, the right to life. When regard is had to the facts in casu the sentences to be imposed should not only serve as deterrence to the accused, but also to the public in general.


[13] Unlike the killing of Nasira, which came unexpectedly as a result of the accused’s negligence, the circumstances under which Sigcende was killed required some planning on the part of the accused. As mentioned in the judgment, the accused had first cunningly armed himself with the shotgun before he proceeded to Nkulivere village; and, judging from his actions and what he had said before turning the firearm on his wife and child, it explains why he had brought it along with him. Although the Court cannot beyond reasonable doubt infer from the facts that the accused had brought the firearm along in order to kill someone, it is clear that he at least foresaw the possibility of using it, as he did i.e. to shoot someone. It therefore required some degree of planning in advance, which is a another aggravating factor.


[14] When regard is had to the circumstances in which the shooting took place, it demonstrates the intent with which the accused had acted when firing one shot with a shotgun at short range aimed at his wife and child. He did so unperturbed and acted in cold blood. It is only by grace that Sirkka was not hit as well and that the full load of the pellets had actually missed both. It seems evident that the accused has no respect for the sanctity of human life and until such time that he appreciates that value, he will remain a threat to society. It would therefore not be in the interest of society to allow the accused to remain in their midst until such time that he has reformed. The requirements of society demand that a premeditated or anticipated callous murder should not be punished too leniently lest the administration of justice be brought in disrepute. The punishment should not only reflect the shock and indignation of interested persons and of the community at large and serve as a just retribution for the crimes committed, but should at the same time, serve as deterrence to others. It is particularly in cases involving serious crimes that society’s outrage and the element of deterrence individually and generally, deserve considerable weight.


[15] It has been said that in sentencing in these types of cases the emphasis should be on retribution and deterrence and that retribution may even be decisive (S v Nkwanyana and Others 1990 (4) SA 735 (A) at 749C-D. Where serious crimes were committed (as in the present case) and retribution and deterrence come to the fore, it will inevitably mean that the rehabilitation of the offender will play a smaller role. Retribution as a purpose of punishment is a concept that is premised on the understanding that once the balance of justice in the community is disturbed, then the offender must be punished because that punishment is a way of restoring justice within the community. On the other hand, it does not mean that the accused should be made the scapegoat of all those guilty of committing serious crime as the Court still has to strike a proper balance between the interests of the offender as well as that of society, whilst at the same time having due regard to the objectives of punishment.


[16] Weighty mitigating factors counting in favour of the accused are that he is a first offender and that he has been in custody now for the past three years. It is trite that a sentencing court must have regard to the period of time a trial awaiting accused has been in custody pending the finalisation of his case; and this normally leads to a reduction in sentence. (See: S v Banda and Others 1991 (2) SA 352 (BGD); Abuid Kauzuu v The State – Case No. CA 19/2004 (HC) unreported judgment delivered on 2 November 2005 at p.14). It is however evident that the accused’s personal circumstances are by far outweighed by the gravity of the crimes he stands convicted of and that the sentences to be imposed on each, should commensurate therewith. In my view, the only appropriate form of punishment would be one of imprisonment.


[17] Whereas each offence committed by the accused would individually attract severe punishment, the Court must be mindful of the cumulative effect of the respective sentences and as far as possible avoid the situation where the accused is sentenced to an unduly term of imprisonment. This approach will ensure that the total sentence is not disproportionate to the accused’s blameworthiness in relation to the offences he stands to be sentenced on. Ms. Kishi invited the Court to take some counts together for sentence as they are closely related and arose from one act. In the circumstances I rather prefer dealing with the cumulative effect of the sentences by making appropriate orders regarding the manner in which these sentences should be served; thereby ameliorating the total effect of the sentences imposed.


[18] In the result the accused is sentenced as follows:


Count 1: Culpable Homicide – 12 years imprisonment

Count 2: Murder – 27 years imprisonment

Count 3: Attempted Murder – 10 years imprisonment

Count 4: Defeating or Obstructing the Course of Justice – 5 years imprisonment

Count 5: Possession of a firearm without a licence – 5 years imprisonment

Count 6: Possession of ammunition without being in lawful possession of an arm capable of firing such ammunition – 2 years imprisonment.


In terms of s. 280 of Act 51 of 1977 it is ordered that (i) the sentence imposed on Count 3 be served concurrently with the sentence imposed on Count 2; (ii) that the sentence imposed on Count 4 be served concurrently with the sentence imposed on Count 1; and (iii) that the sentence imposed on Count 6 be served concurrently with the sentence imposed on Count 5. Accused to serve an effective term of 44 years imprisonment.


Furthermore, the following orders are made:


  1. In terms of s.10 (6) of Act 7 of 1996 the accused is declared unfit to possess a firearm for a period of 5 years, which period will commence only after the accused had finished serving the sentences imposed on him in this case.

  2. The Baikal Shotgun with Serial No. 96038565 (Exh. “1”) and Firearm Licence Identification Book (Exh. “G”) to be returned to J. Mpasi, the lawful owner.

  3. The knobkierie (Exh. “2”) to be destroyed.





_______________________________

LIEBENBERG, J


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