CASE NO.: CC 28/2010
IN THE HIGH COURT OF NAMIBIA
In the matter between:
CORAM: SHIVUTE, J
Heard on: 04 April 2012
Delivered on: 26 April 2012
J:  The accused person has been convicted on one count of
murder with intent in the form of dolus eventualis read with
the provisions of the Combating of Domestic Violence Act 2003 (Act 4
of 2003); two counts of rape contravening section 2(1)(a) read with
sections 1, 2, (2), 3, 5 and 6 of the Combating of Rape Act, 2000
(Act 8 of 2000) – read with the provisions of the Combating of
the Domestic Violence Act, 2003 (Act 4 of 2003) and three counts of
assault with intent to do grievous bodily harm read with the
provisions of the Combating of Domestic Violence Act, 2003 (Act 4 of
 The State is
represented by Ms Ndlovu while Mr Uanivi appears on behalf of the
 The accused
did not testify in mitigation. However, his counsel made submissions
from the Bar. It was submitted that the accused is 30 years old who
never went to school. He is a Namibian citizen. He is the last born
of 8 children. His father died while he was still a young boy. The
accused was raised by an old lady who was his father’s friend.
Unfortunately this lady also died and he went to stay with another
lady who is a family member. The accused was employed as a sheep
herder in Otjimbingwe area. He is unmarried but was staying with his
girlfriend and their twin babies - all of them victims in this
matter. The accused was the bread winner until the date of his
arrest. He is not a first offender.
 His counsel
submitted that the Court should consider the time the accused has
been in custody awaiting his trial. He argued further that although
the accused has been convicted of serious offences the Court should
be merciful when sentencing the accused. It should not impose a long
term imprisonment that would break the accused. He referred this
Court to case law concerning the application of mercy. The Court was
further referred to the triad of sentencing. Regarding sentencing on
the rape counts, counsel submitted that there were no substantial and
compelling circumstances permitting the Court to deviate from
imposing a minimum mandatory sentence provided for by the law.
 On the other
hand counsel for the State called the mother to the deceased and his
twin sister to testify in mitigation. She testified that she was in
a domestic relationship with the accused who is the father of the
babies, including the now deceased. She was shocked to discover what
accused did to their babies. As parents, she and the accused had a
responsibility towards the safety of the babies. When she was
admitted at the hospital with the babies she was so traumatized
because she never experienced what the accused did to the babies
before in her life. As a result of the trauma, she was referred to a
mental health institution for counseling. She further testified that
the death of her son left her with a permanent scar because he was
the only son she had. She again stated that the accused never
expressed any remorse to her as they never met after he was
 Counsel for
the State argued that the accused stands convicted of serious
offences which have been aggravated by the fact that these offences
were committed in a domestic environment. The accused is a father of
the babies who was supposed to protect them but instead he committed
violence upon them. She urged the Court to impose a sentence that
would reflect that an innocent life was lost during the domestic
violence. Counsel continued to submit that the accused did not take
the Court in its confidence as he did not testify in mitigation and
that mercy should be shown to a person who has demonstrated remorse.
She further argued that aggravating circumstances far outweighed the
mitigating factors. This Court was referred to case law in this
the question whether the sentence to be imposed should run
concurrently or consecutively,
counsel for the State submitted that not all the sentences should run
concurrently as the offences were not committed at the same time.
Furthermore, the offences are
different in nature. The Court was also referred to well-known
authorities in this regard.
 Having stated
the evidence and arguments placed before me in mitigation of
sentence, I remind myself that a sentencing process involves the
consideration of the crimes committed; the personal circumstances of
the accused person; the interests of the society; the rights of the
victims, and the aspects of deterrence as well as retribution. These
are the factors I will take into account when deciding on the
 As far as the
murder conviction is concerned, the deceased was a baby of five
months. His precious innocent life was cut short by someone who was
supposed to be his father and protector. Instead, he became a monster
towards him and threw him on a concrete floor. As a result of the
internal head injuries that the baby sustained in the brutal assault,
he succumbed to its death. The death of the deceased, the rape on
the deceased and his twin sister as well as the assaults on them had
caused trauma and grief to the mother of the babies who is also a
victim of assault in this matter and as mentioned before, resulted in
her being referred to a mental health institution.
the rape charges, the accused substantially and shockingly violated
the babies’ human rights. The Court is at a loss as to what
pleasures a man can derive from having sexual relations with a baby.
The accused’s conduct is symptomatic of a deeply disturbing
trend of men in our society who instead of showing love and affection
towards their families, have become their butchers and rapists. The
Courts are slowly running out of vocabulary to describe their
revulsion at these dastardly acts of violence towards women and
children. I do not find compelling and substantial circumstances
requiring me to deviate from the prescribed minimum sentence.
 As far as the
three counts of assault with intent to do grievous bodily harm go, it
appears that the accused has a fetish of biting people, because all
his victims in these counts had bite marks.
 Although the
accused has, through his legal practitioner, asked for mercy, it is
clear that he did not show an iota of mercy towards his victims.
Instead, he savagely assaulted them and there is not a single word
coming from his own mouth that he has shown remorse for what he has
regard to the callous manner in which the offences were committed, I
have no doubt that the accused is a danger to the society. There is
therefore a greater need for him to be removed from society through
the imposition of robust sentences. His personal circumstances have,
by far, been outweighed by the interests of the society and the
rights of the victims.
 In the result
I impose the following sentence:
Count : 25 years’ imprisonment.
Count : 20 years’ imprisonment.
Count : 20 years’ imprisonment.
Count : 12 months’ imprisonment suspended in toto for 5 years
on condition that the accused is not convicted of assault with intent
to do grievous bodily harm committed during the period of suspension.
6th Counts : On each count accused is sentenced to 12
months’ imprisonment suspended in toto for 5 years on condition
that accused is not convicted of assault with intent to do grievous
bodily harm committed during the period of suspension.
ON BEHALF OF
THE STATE Ms Ndlovu
by: Office of the Prosecutor-General
ON BEHALF OF
DEFENCE Mr Uanivi
by: Directorate: Legal Aid