Court name
Northern Local Division
Case name
S v Uusiku
Media neutral citation
[2020] NAHCNLD 93
Case summary:

Criminal Procedure – Sentence― Factors to be taken into account at sentencing ― Accused 25 years’ old first offender – Convicted of murder, assault with intent to do grievous bodily harm and assault by threat ― Offences committed in the context of a domestic setting— Absence of substantial and compelling circumstances – Balance struck between the interests of the accused and those of the society ― Court found aggravating factors extreme and shocking outweighs personal circumstances of the accused.

Headnote and holding:

The accused was convicted of murder, assault with intent to do grievous bodily harm and assault by threat. The deceased was the accused’s girlfriend and they have a child together. Accused has a history of violence. In April 2017, three months prior to the deceased’s death accused was cautioned by Lucia a sister to the deceased to stop assaulting her. Again the mother of the deceased on various occasions pleaded with him to stop assaulting her. Accused failed to heed the calls. In June 2017 accused went to the residence of the deceased. He assaulted the deceased in the close proximity of the house and they were separated. Thereafter he dragged the deceased to the gravel road where he assaulted her with a pounding stick which broke into pieces. After assaulting the deceased the accused instead of assisting her left the scene. The deceased was taken to the Onankali clinic where she subsequently died due to severe head injuries.

 

 

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION

HELD AT OSHAKATI

SENTENCE

 

Case no: CC 9/2019 

 

THE STATE                                                                                                                               

 

v

 

FILLIPUS UUSIKU                                                                                                ACCUSED

 

Neutral citation:      S v Uusiku (CC 9/2019) [2020] NAHCNLD 93 (24 July 2020)

 

Coram:          SALIONGA J

Heard:            29 June 2020

Delivered:     24 July 2020

 


 ORDER


  1. Count one: Murder with direct intent, accused is sentenced to 32 years imprisonment.
  2. Count two: Assault with intent to do grievous bodily harm, accused is sentenced to three years’ imprisonment.
  3. Count three: Assault by threatening, accused is sentenced to six months imprisonment.

          It is ordered that the sentence on count two run concurrently with the sentence on count one.


SENTENCE


SALIONGA, J:

 

Introduction

[1]        On 5 June 2020, this court convicted the accused on three counts namely; murder with direct intent to kill another human being, assault with intent to do grievous bodily harm and assault by threat, all counts read with the provisions of the Combating of Domestic Violence Act 4 of 2003. The facts of this case are set out in the judgement on convictions.

 

[2]        Now it is the time for me to meet out a suitable sentence for the crimes of which accused had been convicted. The determination of suitable sentences requires the sentencing court in each case to take into account all relevant factors, afford the appropriate weight thereto and strike a balance between the various interests. In so doing regard must be had to the triad factors that is, the personal circumstances of the person convicted, the nature and gravity of the crime(s) committed and the interests of the community as set out in S v Zinn 1969 (2) SA 537 (A) whilst at the same time bearing in mind the objectives of punishment. However, that does not mean equal weight must be given to each of those objectives as circumstances of a case might dictate that one or more factors must be emphasized at the expense of the others.

[3]        The aforesaid being true, as Parker J in S v Mathias Indongo in an unreported judgement of the High Court of Namibia delivered on 31 October 2007 remarked that:

‘In imposing an appropriate sentence, I must strike a fair balance between competing factors in order to do justice to both the accused and the society and I may give more weight to certain factors than to others’. The above insert show that it is sometimes unavoidable for courts to place more weight to one factors than to others’.

[4]        It is common cause that the accused and the deceased were in a love relationship and had a child together. The circumstances that led to the death of Rauha are that accused hit the deceased on the head with a pounding stick which broke into pieces. Prior to that assault, accused hit her with fists, kicked and pulled her hair which assault was perpetrated in close proximity of her residence. As if violence was a norm in their relationship, three days prior to her death, the accused threatened her with a beer bottle when he met her at Freddy’s shebeen. The deceased died as a result of severe head injuries.

[5]        In mitigation before sentence, accused testified under oath that he is 25 years old and would have been 22 years old at the time of the commission of these offences. He only advanced to grade nine in school. He is unmarried with two children. The first born is 7 years and the last born will be five in October this year. In addressing the family of the deceased, accused asked for forgiveness from the Court, the deceased’s family and all members of the community. He further asked the Court for leniency in imposing a sentence so that he could go and assist his children.

[6]        Accused admitted in cross examination that he knew the offences he was convicted of are serious and prevalent not only in Oshana but all over Namibia. They were violent offences and committed against a person he had a relationship with. That he used a dangerous object a pestle which he directed to the head. He further admitted to have assaulted the deceased with fists but denied kicking and threatening her. According to the accused the deceased did nothing wrong and it was just bad luck that he killed Rauha, the deceased.

[7]        For remorse to be a valid consideration at sentencing, it must be sincere and the accused must take the court fully into his confidence and indicate what motivated him to commit the deeds in question. He must further indicate what has since provoked his change of heart and whether he has now full appreciation of the consequences of his actions. In this case I find the expression of remorse not genuine when viewed against the background that he is still denying that he did not kick and threaten the deceased despite overwhelming evidence before court.

The offences

[8]        To start with, the crimes of assault and murder are serious and prevalent. The accused threatened the deceased with a beer bottle, assaulted her with fists and pulled her hair. He used a dangerous weapon a pestle that had caused serious injuries on the deceased and eventually led to her death. The degree of violence which he meted out at her was excessive, cowardly and inexcusably exhibiting horrifying aggression. He executed successive blows and fatal force in the taking of her life completely disregarded her bodily integrity. The accused did not hesitate in the commission thereof, for he did not assist the deceased, instead he left her to die. It is further aggravating that the offences were committed in the context of a domestic setting.

The interests of society

[9]        Our society is currently experiencing high levels of violent crimes in particular against women. Society expects the courts to impose sentences that suitably match the gravity and prevalence of the offences committed. Although in all fairness the interest of society requires that offenders receive punishment which is neither too severe nor too lenient, the community will lose faith in the criminal justice if too lenient sentences are imposed. In the present case the accused’s persistent and prolonged assault on the deceased with accompanying brutality in the final act, poses threat to society and calls for a long term custodial sentences to be imposed.

Submissions by counsel

[10]     Counsel for the defence submitted that accused is remorseful to the Court, deceased’s family and women in Namibia. She further submitted that the purpose of sentencing was not to break down the accused, all possible hope of ever being released but must be left with a form of hope that one day he will join society again as a free man. According to counsel for accused this Court has, even in murder cases, a discretion to order the sentences to run concurrently as pointed out in case law, alternately to order part of the sentence to be suspended.

[11]     On the other hand, Counsel for the State stressed the manner in which the deceased was killed as well as the accused’s conduct before and after the assaults as testified to by the state witnesses. He submitted that accused had not shown any remorse. He also failed to inform this Court the reason for the persistent brutal assaults. In his own words the deceased did nothing wrong and it is against the spirit of the Constitution to take another human being’s life. He further submitted that the right to life is enshrined in our Constitution and must be respected by all. That accused is a danger to society and need to be removed from society. With regard to the second count, counsel submitted that: the court must consider that the injuries inflicted are so serious when regard is had to exhibit Q handed in court. It was further counsel’s  submission that threatening the deceased with a beer bottle on count three is equally serious, because although a beer bottle is not a killer weapon if used it is capable of killing someone.

Application of the law

[12]     The court is mindful that; accused in the instant case had murdered Rauha without any defence or justification. She suffered in the last moments of her life as she did not die instantly but was taken to the clinic and eventually succumbing to her death. I could imagine the pain and suffering the deceased had to endure. The deceased looked up to the accused for protection, instead he breached this trust, attacked and murdered her. Accused failed to heed the call by the mother and the sister of the deceased who pleaded with him to stop abusing the deceased. That accused withheld the reason behind the killing and it is safe for this Court to resonant with the state witnesses that he wanted the deceased’s phone. That accused did not show genuine remorse in that he persisted in his innocence on count three after a finding of guilt.

[13]     Another factor to be considered is, the injuries inflicted on the deceased were successive and incremental until it was fatal. During this time and in the progress of killing her, he would have had time to reflect and desist from his unlawful conduct specifically at a point when they were separated. However, accused carried on regardless. The extent of the force used was so excessive that the injuries to the head shows clear linear fracture of the dome and  base of the skull from left to right temporal, fracture base of the skull, brain lacerations along the skull fracture and raccoon eye as described in a post mortem report marked exhibit “N”.

[14]     With regard to the assault counts, the general principles of sentencing are applicable and is also aggravated that the two assaults were committed in the context of a domestic relationship.

[15]     I have taken into account the personal circumstances of the accused including the time he spent in custody while awaiting trial. That he is a father of two minor children, although they do not stay with him nor does he support them. Furthermore the circumstances under which the offences were committed are aggravating and warrant custodial sentence. Accused has a history of assault and is a violent man when regard is had that he failed to stop the abuse after he was cautioned to do so.

[16]     Whilst this court agrees with counsel for the accused that the purpose of sentencing is not to break the accused’s all possible hope of ever being released, it is unfortunate that serious crimes of this nature compel that the objectives of retribution and deterrence outweighs the objectives of rehabilitation of the offender and accordingly the interests of the accused would draw back to the background. Therefore it is the duty of this Court particularly where women are murdered in the context of their marriages, relationships and homes to impose well balanced sentences. In my view the aggravating factors in this case are so extreme and shocking that they outweigh the personal circumstances of the accused.

 

Conclusion

[17]     Having considered various sentencing options, the personal circumstances of the accused and the circumstances under which the offences were committed the following sentences will meet all the objectives of sentencing and be just and fair to the accused.

In the result:

 

1. Count One: Murder with direct intent, accused is sentenced to 32 years imprisonment.

2. Count two: Assault with intent to do grievous bodily harm, accused is sentenced to three years’ imprisonment.

3. Count three Assault by threatening, accused is sentenced to six months imprisonment.

It is ordered that the sentence on count two run concurrently with the sentence on count one.

 

 

__________________

J  T SALIONGA

JUDGE

 

 

APPEARANCES

 

For The State:                      Mr. L Matota

                                           Of Office of the Prosecutor General,

Oshakati

 

 

For The Accused:                Ms B Boois

Of BB Boois Attorneys, (Instructed by Legal Aid)

Ongwediva