S v Kazondjou (CC 03/2009) [2010] NAHC 72 (09 April 2010);

Group

Full judgment



CASE NO.: CC 03/2009

IN THE HIGH COURT OF NAMIBIA

In the matter between:

THE STATE


versus


MATHEUS KAZONDJOU


CORAM: SIBOLEKA, J


Heard on: 2010 March 17; 19; 23; 26; 31 &

2010 April 01;

Delivered on: 2010 April 09

________________________________________________________________________

SENTENCE:

SIBOLEKA, J

[1] After his plea of guilty, the accused has been convicted on the following six crimes: Murder, Robbery with aggravating circumstances, Housebreaking with intent to steal and theft, Possession of a firearm without a license, Possession of ammunition without being in possession of an arm capable of firing such ammunition, and Malicious damage to property.


[2] It is now the task of this Court to impose a sentence which is suitable in the circumstances. In this endeavor I am alive to what has become known as the triad, consisting of the crime, the offender, and the interests of society. (See State v Zinn 1969 (2) SA 537).


[3] I will first start with the personal circumstances of the accused.


[4] In mitigation of sentence submitted by his counsel, the accused is now 34 years old. He was 27 years at the time of the incident, not married, no children and has no formal education.


[5] His father passed away while he was still a young boy and as a result he grew up without a father figure. His mother and elder sister are still alive. As a result of difficult living conditions, he left his home village in 1996 to look for work. His first job was that of a herdboy at Aminus where he earned N$150,00. Between 1997 and 2003 the accused worked as a mechanic at Gobabis earning N$200,00 per month.


[6] The accused does not have any earthly possessions of any kind, and is therefore not in a position to compensate Gabriel Katuuo for the one cow he has shot and killed.


[7] Accused pleaded guilty to all six counts, a conduct generally seen as remorseful of what had happened. He is a first offender and has spent four years and two months in custody awaiting for trial and finalization of this matter. He regrets his actions and is continuously asking for forgiveness for the grief he has caused to the family of the deceased.


[8] The circumstances leading to the death of the deceased are as follows:


[9] The accused was looking for work in Otjinene when he met Gabriel Katuuo, the grandson of the deceased. They went together to the latter’s home at Hamutuue Village. It was during the opening of schools and Gabriel Katuuo was busy preparing for the departure of his school children. There was no time to discuss the details of the work the accused was looking for.

[10] Gabriel transported his children to far away places such as Gobabis, Windhoek and Drimiopsis. Before he left, he assigned the accused to look after the homestead, all animals, cattle, goats and sheep. This request also included looking after the deceased, an 80 year old lady.


[11] Accused and the deceased were the only two people that Gabriel Katuuo left at his homestead.


[12] The deceased owned most of the cattle at this homestead ± 280 to 300 in number. She helped to manage the homestead and to sell some of the animals in the absence of Gabriel Katuuo, for the upkeep and maintenance of the homestead.


[13] Although the deceased was Gabriel Katuuo’s grandmother he called her his mother, because from infanthood (babyhood) she was the only one who attended to him round the clock like his biological mother would have done. The deceased grew him up till adulthood.


[14] During the period he was looking after the homestead, the accused broke into Gabriel Katuuo’s house. While inside the house he forced the gun cabinet open, took out an 8.57 mauser rifle with ammunition. He then proceeded to the deceased’s house. He found her in the sitting room seated on the sofa. He shot her once in the chest as a result of which she died. At the time of the shooting the deceased was unarmed and did not provoke the accused in any way. Accused dragged the deceased’s body into the bedroom, placed it there and locked the door.


[15] Accused took the mauser rifle and shot Gabriel Katuuo’s cow dead. He then went into the veld and threw away the keys of the deceased’s bedroom, and hid the mauser rifle. The police had to break the door of the deceased’s bedroom in order to remove the corpse. The community rounded up the accused and took him to the police station where he was arrested. The accused showed the police where he threw the keys and hid the mauser rifle.


[16] The deceased, Claudia Munejanda was shot and killed in her own house for no apparent reason. The police also found the deceased’s Eveready radio in the accused’s possession. That being the case these circumstances places the murder of the deceased in the category of those senseless murders in this country. No reason exists why the accused shot and killed the deceased in her own house, and none has been advanced whatsoever.


[17] Every law abiding citizen is shocked to the core at the rate of murders of defenseless women. There is undoubtedly a wide spread outrage of these murders in our society. That is why the community in this matter decided to roundup the accused and take him to the police station to face the full wrath of the law.


[18] Our courts cannot turn a blind eye at that outrage, otherwise they risk encouraging the breakdown of law and order, and communities taking the law into their own hands.


[19] The mitigating factors in favour of the accused are far insufficient to be regarded as retribution for the wrong that is so revulsive, when regard is had to the fact that the deceased was shot and killed in cold blood in her own house.


[20] In R v Karg 1961 (1)SA 231 A at 236 B the following was said:

It is not wrong that the natural indignation of interested persons and the community at large should receive some recognition in the sentences that courts impose, and it is not irrelevant to bear in mind that if sentences for serious crimes are too lenient, the administration of justice may fall into disrepute and injured persons may incline to take the law into their own hands.”


[21] Crimes such as murder generally attract custodial sentences with an emphasis on the specific and general deterrence factor. This calls for an assessment of the accused as an individual and the mitigating factors found to be present against the gravity of the offence and the legitimate interest of society.


[22] When one looks at the crime rate in our country and the need to curb it the observation made by the Court in Staat v Matolo en Ander 1998 (1) SACR 206 OPD are of great assistance:

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 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 it utter repugnance and contempt conduct.”


[23] Given the personal circumstances of the accused, the gravity of the offences, the legitimate interest of society and the emphasis on the general deterrence factor, the sentence of the Court is as follows:


[24] Count 1: Murder: - Thirty five (35) years imprisonment.


[25] Count 2: For the crime of Robbery in aggravating circumstances in the stealing of N$200,00 cash and an Eveready radio of the deceased: - Twelve (12) years imprisonment.


[26] Count 3: For the crime of Housebreaking with intent to steal and theft involving a safe and a 8.57 mauser rifle serial number 115674 and an unknown amount of ammunition of Gabriel Katuuo: - Two (2) years imprisonment.


[27] Count 4: Possession of a firearm without a license: - Twelve (12) months imprisonment.


[28] Count 5: Possession of ammunition without being in lawful possession of an arm capable of firing such ammunition: Six (6) months imprisonment.


[29] Count 6: Malicious damage to property involving the shooting to death of a cow belonging to Gabriel Katuuo: Two (2) years imprisonment.


[30] And in Count 2: Seven (7) years is to run concurrently with the sentence of thirty five (35) years in Count 1.



[31] It is further ordered that Counts 3,4,5 and 6 are to run concurrently with the sentence of 35 years in Count 1.


[32] In terms of section 34(1)(a) of the Criminal Procedure Act 51 of 1977, it is ordered that the safe (gun cabinet) and the 8.57 mauser rifle, serial number 115674 be handed back to the lawful owner; Gabriel Katuuo.





_________________

SIBOLEKA, J



ON BEHALF OF THE STATE: ADV. NDUNO

INSTRUCTED BY: THE OFFICE OF THE

PROSECUTOR-GENERAL


ON BEHALF OF THE ACCUSED: MR. KAVENDJII

INSTRUCTED BY: LEGAL AID



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