Court name
High Court
Case number
CC 19 of 2010
Title

S v Gaoseb and Another (CC 19 of 2010) [2011] NAHC 57 (25 February 2011);

Media neutral citation
[2011] NAHC 57






























CASE
NO.: CC 19/2010







IN
THE HIGH COURT OF NAMIBIA HELD AT OSHAKATI



In
the matter between:


THE
STATE


and







JAMEN
PETRUS GAOSEB JOAHASEL GAMASEB












CORAM:
LIEBENBERG,
J.







Heard
on: February 22 - 23, 2011.


Delivered
on: February 25, 2011.










SENTENCE















LIEBENBERG,
J.:
[1]
The accused were jointly convicted on two counts, namely, murder and
housebreaking with intent to rob and robbery, with aggravating
circumstances. They pleaded not guilty to both charges but in the
end, were convicted on both charges. In respect of the murder charge,
they were convicted on the basis of constructive or legal intention
(dolus
eventualis).
We
have reached the stage of the proceedings where the Court must decide
what sentence, in the circumstances of this particular case and with
full regard to the interests of the accused persons, would be
appropriate and just.











[2]
It is trite law that a trial court has a judicial discretion in
sentencing and this discretion must be exercised in accordance with
judicial principles. The sentencing court must keep in mind the
purposes or objectives of punishment referred to in
S
v Khumalo and Others,1
and
must endeavour to strike a balance in respect of the interests of the
accused, and the interests of society, in relation to the crime
itself and in relation to those purposes or objectives. This requires
that the personal circumstances of the accused be weighed in relation
to the interests of society. It is in the interest of society that
the punishment meted out by the court is appropriate. It has also
been said that, should society feel that the punishment imposed is
inadequate, it may well hesitate or be reluctant to accept the
offender back into society
(S
v Tjiho2).















[3]
Both the accused gave evidence in mitigation, without calling any
witnesses.











[4]
The personal circumstances of first accused are the following:
Although unable to state his exact age, he said he was twenty-one
years of age when arrested in 2005. That would currently make him
about twenty-six years of age. He is not married and fathered a
daughter, now five years old, who lives with his mother in Otavi.
Prior to his arrest, accused used to contribute towards the
maintenance of his child by buying milk and clothing; a
responsibility now fully lying with his mother, who is employed. It
would appear that she also supports the child's biological mother. He
is illiterate and never received any formal education. He was
employed by the deceased where he had been working for only
two-and-a-half months and earned N$220 per fortnight. He resigned one
day before the incident took place in which the deceased got killed,
and explained his resignation by saying that the deceased deducted
monies from his salary, which she was not entitled to do. This he
said, was the reason why he returned to the farm the following day in
order to steal the money she had earlier refused to give him. He was
unable to explain why he did not instead file a complaint with the
Labour Commissioner; other than saying that he did not think of that
at the time. He further said that he felt very bad for having caused
the death of the deceased and that the incident haunts him in his
dreams. He otherwise enjoys good health. Accused has been in custody
since his arrest on 16 October 2005; a period of five years and four
months. Before this incident, he had not brushed shoulders with the
law.











[5]
Second accused was unable to state his age, but confirmed that he was
an adult. He is single and without dependants. His formal education
went as far as grade three when he dropped out of school because his
school fees remained unpaid. He had also worked for the deceased for
just over two months (prior to accused no.1 taking up employment with
the deceased) and voluntarily terminated his services. Second accused
thereafter did some casual work elsewhere, but, on the date of the
incident, he was unemployed. He thereafter became financially
dependent on his mother, whose house he was staying in at the time,
in Otavi. He equally felt very bad about the deceased's death, which,
to him, came unexpected. He explained that, although he had no
earlier quarrel with the deceased over money, he decided to go with
first accused, hoping that he would share in the money they planned
on stealing. The N$4-80 actually stolen was spent on cigarettes. From
the remaining stolen items, he took curtains, duvet covers and
bed-sheets. The firearm, he said, remained with accused no. 1, who
did not indicate to him what he intended doing with it. Second
accused is also a first offender and remained in custody since their
arrest.







[6]
It is a well-established principle that, for remorse to be a valid
consideration, penitence must be sincere and the accused
must
take the Court fully into his confidence
;
unless he does that, the genuineness of his alleged contrition cannot
be determined
(S
v Seegers 3
).
In
casu,
both
accused testified that they 'felt very bad that the deceased had
died', nothing more. They clearly did not accept the blame for having
killed the deceased - albeit with intent in the form of
dolus
eventualis;
and
just kept on saying that they did not 'think' (foresee) that the
deceased would die. I accept that the concept of constructive intent
may be difficult for them to grasp, but even as laymen, they did not
express themselves from which it can be said that they take full
responsibility for the consequences of their actions. In the light of
their pleas of not guilty on both charges; first accused's persistent
dishonesty (endorsed by second accused) throughout the trial and
(even) at the stage of sentencing; and, their superficial expressions
of feelings of remorse for the heinous crimes they committed, could
these be considered to be sincere and, hence, a valid consideration
when sentencing? I believe not, as they clearly did not take the
Court fully into their confidence - neither during the trial, nor
during their testimony in mitigation. They never accepted their guilt
and, as was shown during the judgment, evidence was

fabricated
to favour their version. It has been said4
that
"The
sooner after the commission of a crime remorse is expressed and
reparation steps are under taken, the more genuine the expression
thereof will fall on the ears of the Court. It requires of a suspect
not only to express it, but also to conduct himself in such manner
that his remorse is evident from his actions."
I
fully endorse the sentiments expressed by Maritz, J (as he then was)
and in this case, I am unable to find genuine remorse on the part of
both the accused and, in the circumstances, I am unable to give any
weight to their alleged feelings of remorse.











[7]
From their evidence in mitigation it is clear that both the accused
struggled to make an independent living for themselves; and at all
relevant times, were dependent on the assistance and financial
support of their respective mothers. This unfortunate situation might
have been brought about by their poor background and lack of formal
education - or possibly, might have been a contributing factor.
Notwithstanding, at the time they committed the crimes convicted of,
first accused had resigned and second accused, although unemployed,
was financially supported by his mother. If accused no. 1 honestly
believed that he was unfairly treated by the deceased when she
deducted money from his salary not due, then he could have the matter
addressed through the local labour office. Instead, he decided to
take the law into his own hands and got accused no. 2 to join forces
with him in the execution of their plan. There was simply no need for
that - more so second accused, who was unaffected by the issues
between the deceased and first accused. However, greed took the
better of him, as he was hopeful of sharing in the spoils -which he
did. Although the circumstances, in which both accused found
themselves in at the time of committing the crimes, are far from
ideal, it cannot, in my view, be said that they, as a result thereof,
were forced to turn to crime. In this country there are a large
number of people whose circumstances are similar to that of the
accused persons and who, from one day to the next, struggle to eke
out a livelihood with very little to their disposal - yet, not all of
these persons turn to crime to help themselves to what belongs to
others. They consider themselves as law abiding citizens, choosing to
respect the fundamental rights of others, irrespective of their
circumstances. In this case both accused
chose
to
trample on the rights of others; with complete disregard to the
sanctity of human life.











[8]
That they planned their actions in advance is evident from the facts:
They decided to enter the house at night when they knew the deceased
would be asleep; both knowing the set-up at the house and how they
could easily gain forced entry into the house because of their
previous employment with the deceased; they knew she was living on
the farm alone; and therefore prepared themselves by taking along
tools, such as a screwdriver and knife, in order to achieve their
aims. The planning of a crime is generally regarded to be an
aggravating factor, and in the present case, there is sufficient
evidence to find that the accused planned their actions well in
advance.











[9]
Both crimes committed are viewed in a serious light by the courts,
and where these share common ground, I take the following into
consideration: From their earlier employment on the farm, both were
familiar with the circumstances on the farm and, it is also from this
prior knowledge, that they knew they could gain access to the house
through the window in the store room where the burglar bars were
widely spaced to readily allow access for someone to pass through
when breaking the windowpane. They knew that the deceased was living
alone and given her advanced age, she was particularly vulnerable.
This much was conceded by their counsel.











[10]
Turning to the crime and the circumstances in which it was committed,
it is noted that the deceased was attacked in the sanctity of her
home. She was surprised in bed and stood no chance against the
accused persons. In these circumstances, if the accused meant no harm
to the person of the deceased (as they claimed), they could simply
have locked her up in one of the rooms without injuring her in any
way; temporarily incapacitating her. She was a frail and sickly,
elderly person; subjected to an assault which fractured some of her
ribs and during which assault she sustained injuries on her head and
neck. The latter injuries are not viewed to be of serious nature. A
garment was tightly tied around the head, covering her mouth and
nose, probably preventing her from breathing properly. She was
further securely trussed up to such an extent that she probably was
unable to move any of her limbs and remained in that position until
she died. She must have been in extreme pain and agony before she
died. She was helpless and defenceless and had to pay with her life;
only so that the accused persons could rob her of a handgun, N$4-80
in cash, and goods only of sentimental value to the family i.e.
linen. Judging from the photographs forming part of the photo plan
handed in as exhibit during the trial, depicting the manner in which
the deceased was lying in when found the following day, one can only
describe that scene as undignified -something no person should be
subjected to.











[11]
It must be borne in mind that the accused were convicted of the
offence of murder with intention in the form of
dolus
eventualis
and
not in the form of direct intent
(dolus
directus).
Such
finding in itself, however, does not constitute amitigating factor,
as it will all depend on the facts of each particular case, and not
only because direct intent is absent.5
Regard must be had to the crimes committed and the circumstances of
the particular case; and it has been said that murder, committed with
constructive intent of a certain nature, may even be morally more
blameworthy than murder by direct intent6.
The crimes committed
in
casu
are
not only serious, but also heinous and deserve severe punishment. The
murder was committed during a housebreaking and robbery, with
aggravating circumstances.











[12]
Because the two charges are in time closely connected and the assault
and ensuing death being common factors, it might create the
impression that there is a risk of punishing the accused twice for
the same misdeeds, called 'double jeopardy'. In this regard Maritz,
AJA (as he then was) in
S
v Alexander7
stated:











"I
agree with the approach favoured by Van den Heever JA [in S v
Maraisana and Another 1992 (2) SACR 507 (A)]: the accused must be
sentenced on the count of robbery as if he has not been convicted on
the count of murder and is not in jeopardy of such a conviction in
future. In many instances the result may be the same as that of the
earlier approach applied by that Court, i e to think the death of the
victim away when sentencing the accused on the count of [robbery],
but its substratum is different and founded on the principle that the
sentence should always be designed to fit the crime (and it is not to
say that it should not also incorporate the other elements of
Zinn's
triad).
While this approach may be criticised for not removing the risk of
double jeopardy altogether, it remains, for the reasons I have
already referred to, the preferred option. To the extent that an
element thereof remains, this can be addressed adequately by
directing that the sentences (or portions thereof) will be served
concurrently. "







[13]
Crimes such as murder, rape, robbery and housebreaking are all
serious crimes. The sanctity of life expressed by the Constitution
must be protected and the only way in which this Court could make a
contribution to that end, is by meting out appropriate and suitable
punishment. Courts will certainly fail in its duty, should it not
impose severe punishment in deserving cases; thereby sending a clear
message to society, to the accused in particular, and al would-be
offenders, who may consider committing crimes of this nature. Given
the grave escalation of crimes of violence committed lately against
the most vulnerable in society like the elder; women and young
children, the deterrent aspect of sentencing and deterrence, as one
of the objectives of punishment, must be emphasised. There is a
general outcry from the public for protection against criminals and
it is more often than not reported in the media, that aggrieved
members of society have taken to the streets to protest their
dissatisfaction against criminals in society who show no respect for
life and the rights of others. I am alive to the fact that the courts
should not give in to public expectation - which is not synonymous
with public interest - because, what the public may perceive as being
fair and just, may not, necessarily, be in its best interest; neither
in the interest of justice.











[14]
When balancing the interests of the accused, the seriousness of the
crimes and circumstances under which it was committed, against the
interests of society, I am satisfied that the aggravating factors by
far outweigh the mitigating factors placed before the Court by both
accused. It is well-known that the sentencing court has the often
difficult and complicated task to harmonise and balance the general
principlesapplicable to sentencing when applying these to the facts
of the particular case. However, it does not imply that equal weight
must be given to the different factors, as situations may arise where
it is necessary to emphasise the one at the expense of the other
(S
v Van Wyk8).

It
is therefore not uncommon, when dealing with cases involving serious
crime, that the emphasis falls on deterrence and retribution, and
that rehabilitation plays a lesser role. It, however, does not imply
that the personal circumstances of the offender are ignored - it
still has to be considered with the totality of the facts before the
Court. Although their personal circumstances may not be overlooked,
the gravity of and the circumstances in this case, involving crimes
of murder and housebreaking and robbery with aggravating
circumstances, dictate that severe punishment be imposed on the
accused today. A lengthy custodial sentence seems inevitable.











[15]
That would not only bring hardship to the accused persons who, most
probably, would spend the greater part of their productive life
behind bars; but also to their families, especially the child of
first accused, who will grow up without a father figure in her life.
For the moment this child is cared for by her grandmother and the
child's biological mother; however, things might chance for the worse
in future as it would appear that they are mainly dependent on his
mother's income. Regrettably, one cannot allow one's sympathy for the
family to deter one from imposing the kind of sentence dictated by
the interests of justice and society.











[16]
The accused have been in custody awaiting trial for five years and
four months. It is trite that the period an accused spends in custody
awaiting trial, especially if it islengthy, is a factor which
normally leads to a reduction in sentence.9
That would obviously apply to this case.











[17]
Where the accused is sentenced in respect of two or more related
offences - like murder and robbery - the accepted practice is that
the court, in sentencing, should have regard to the cumulative effect
of the sentences imposed, in order to ensure that the totality of the
sentence is not disproportionate to the moral blameworthiness of the
offences, for which the accused stands to be sentenced.10















[18]
In the result, accused no's 1 and 2, you are
each
sentenced
as follows:











Count
1 - Murder: 27 years imprisonment.



Count
2 - Housebreaking with intent to rob and robbery, with aggravating
circumstances: 15 years imprisonment.



In
terms of s 280 of Act 51 of 1977 it is ordered that 7 years of the
sentence imposed on count 2 be served concurrently with the sentence
imposed on count 1.



















LIEBENBERG,
J





ON
BEHALF OF THE ACCUSED Mr. S. Skakumu





Instructed
by: Directorate: Legal Aid





ON
BEHALF OF THE STATE Mr. D. Lisulo





Instructed
by: Office of the Prosecutor-General




11984
(3) SA 327 (A).





21991
NR 361 (HC).





31970
(2) SA 506 (A).




4The
State v Willem Swartz and Others,
Case
No. CC 08/89 (HC).





5S
v de Bruyn en
n
Ander
1968
(4) SA 498 (A) at 505;
S
v Joseph Gariseb and Another
(unreported)
(HC) delivered 24.10.2006.




6S
v Sebeko
1968
(1) SA 495 (AD); applied in
The
State v Hendrik Swartz and Another
(unreported)



Case No. CC
48/2007, delivered on 29.02.2008.




7S
v Alexander
2006
(1) NR 1 (SC)





81993
NR 426 (HC) at 448D-E




9S
v
Engelbrecht
2005
(2) SACR 163 (WLD) para 31 at 172C;
S
v Mtimunye
1994
(2) SACR 482 (T);
S
v Goldman
1990
(1) SACR 1 (A).




10S
v Coales
1995
(1) SACR 33 (A) at 36e-f;
S
v Mhlakaza and Another
1997
(1) SACR 515 (SCA) at 523g-h.