Court name
High Court
Case number
CC 9 of 2010
Title

S v Amupolo (CC 9 of 2010) [2011] NAHC 59 (28 February 2011);

Media neutral citation
[2011] NAHC 59

















CASE
NO.: CC 09/2010



IN
THE HIGH COURT OF NAMIBIA HELD AT OSHAKATI



In
the matter between:


THE
STATE


and


ACHILLES
TIMONDITYE AMUPOLO


CORAM:
TOMMASI,
J







Heard
on:
14/01/2011;
20/01/2011; 25/02/2011&



Delivered
on: 28 February 2011









SENTENCE:



TOMMASI
J:
[1]
The accused was charged with murder read with the provisions of the
Combating of Domestic Violence Act, 2003 (Act 4 of 2003) but was
convicted on a competent verdict of assault with the intent to do
grievous bodily harm.







[2]
The accused assaulted his wife by kicking her twice,
indiscriminately, not caring where the blows fell and by pushing her
off the bed. The deceased sustained blunt force injuries to her head;
mouth; and abrasions to her back and arm.








[3]
The mother of the deceased was notified by the Court in terms of s
25 of the Combating of Domestic Violence Act, 2003 (Act 4 of 2003)
since the accused and the deceased were in a domestic relationship
as defined by the



Act.







[4]
She testified that the three children of the deceased are now living
with her and that she is taking care of the children. The accused is
the father of two of these children. She took the children to live
with her after the death of her daughter. She has her own business
and has been maintaining the children with her income. She received
some clothing for the children from the accused but testified that
the accused has not been visiting the children after the death of
her daughter. Although this witness indicated that she does not have
a problem with the accused coming to visit the children, she clearly
expressed her distrust for the accused. It was evident that this
witness harbours feelings of hostility toward the accused. This is
understood given the facts of this case. The two families have
discussed compensation in the sum of N$9000.00 which compensation is
determined in terms of custom and/or tradition.







[5]
The accused did not testify but his personal circumstances were
placed before the Court by his legal representative. The accused is
47 years old. He worked as an unqualified teacher from 1988 to 1993
when his employment was terminated due to the fact that he was not
qualified. From 1993 he worked as a labourer on a casual basis until
2002 when he was employed as a porter at the Oshakati Hospital. He
was appointed as a Mortuary Assistant in 2004 to date, at the same
hospital. He has nine children and two of them are living with him.
Policies and payments for educational loans are deducted from his
salary for the benefit of his children attending school. He is a
first offender. His legal practitioner informed the Court that the
accused was unable to talk to the mother of the deceased due to the
condition attached to his bail which prohibited him from interfering
with state witnesses. This Court is unimpressed with the fact that
the accused, in the two years following the death of his wife, made
very little effort to contribute to the wellbeing of his children
with the deceased, nor with the efforts made to restore the
relationship between him and the deceased's family.







[6]
Considering the crime; the interest of society; the personal
circumstances of the accused; and the objectives of sentencing this
Court must now impose a sentence on the accused.







[7]
This crime was committed within the privacy of a household where
members of that household should feel safe, loved and protected.1
It was committed out of sight of eyewitnesses. Such is the nature of
domestic violence. It often goes undetected because it happens in
the privacy of homes and because victims fear to speak out. Domestic
violence has become an everyday occurrence before the courts and
also arouses strong indignation from society. One way our Courts
have dealt with this issue was to impose deterrent sentences to send
a message that it will impose harsher sentences.2







[8]
I am reminded by counsel for the accused that the accused should not
be sacrificed at the altar of deterrence; and that I should not
overemphasise any one of the factors at the expense of the other. On
the other hand I am encouraged by counsel for the State to, given
the rise of violence against women, impose a robust sentence as a
general deterrence. Both arguments are equally valid and the answer
lies in harmonising the principles of sentencing taking into
consideration the facts specific to this case.3







[9]
The assault perpetrated on the deceased was meant to ward off the
deceased. The accused was in a lying position when he kicked and
pushed the deceased. There is no reliable evidence before this court
that there wereprevious incidents of domestic violence perpetrated
by the accused. This then was an isolated incident provoked by the
deceased's unusual and strange behaviour during the day, the
breaking of cellular phones and the persistent pulling of the
accused's leg.







[10]
The accused is gainfully employed and is supporting his children by
providing payment for their education. He has been in some form of
employment for most of his adult life. He is a first offender at the
age of 47. These are important considerations. The fact that cases
involving domestic violence have aroused the indignation of the
society does not necessarily mean that the person of the accused
must be ignored. In the final analysis the punishment must fit the
crime and the offender. The assault was an isolated incident and
there was no evidence that the accused is currently in another
domestic relationship.



















[11]
When the duration of sentence is considered, what was stated in
S
v



Brand
and Various Other Cases4
by
Levy J, at p357 D- E comes to mind i.e:



"Society
also expects that people who have done wrong will be punished, that
is, the retributive purpose in punishment is important. This is
particularly so in cases which involve violence or housebreaking
where the indignation of the community has been aroused. Sentences
which are too low do not achieve any of those purposes. The accused
and the community laugh and scoff at such sentences and at the
administration of justice. Such sentences lead eventually to the
community taking the law into their own hands and meeting out the
punishment they consider the accused deserves. Not all offences
warrant a sentence of imprisonment and a first offender should not
be sent to gaol if there is some other adequate punishment."







[12]
This does not mean that in deserving cases this Court would hesitate
to impose a sentence of direct imprisonment upon a first offender;
even where such person is gainfully employed. However considering
the nature of the assault and the circumstances under which it was
committed; the injuries inflicted; the interest of society and the
personal circumstances of the accused, this Court is of the view
that the accused, who has been and still is a productive member of
society does not fall in the category of offenders who, although he
is deserving of punishment, should be removed from society. A short
period of imprisonment would mean that the accused would lose his
emloyment that he has held since 2002 and that would do more harm
than good (See S v SIBIYA 2010 (1) SACR 284 (GNP)).















[13]
In the premises the Court imposes the following sentence:







The
accused is sentenced to 3 years imprisonment wholly suspended for a
period of five years on condition the accused is not convicted of
assault, committed during the period of suspension.














































TOMMASI,
J





COUNSEL
ON BEHALF OF THE STATE: Mr Wamambo





Instructed
by:
Office
of the Prosecutor General





COUNSEL
ON BEHALF OF THE ACCUSED:

Mr
Greyling










1See
S v Tjiho 1991 NR 361 at page 366 J & 367 A-B





2S
v Bohitile 2007 (1)NR 137 (HC); The State v Johannes Mushishi
CC07/2010 an unreported case delivered on 24/06/2010;





3S
v Van Wyk 1993 NR 426 (SC)





41991
NR 356 (HC)