Court name
Supreme Court
Case number
SA 15 of 2002
Case name
S v Hoaeb
Media neutral citation
[2004] NASC 10





IN THE SUPREME COURT OF NAMIBIA











CASE
NO.: SA 15/2002












IN
THE SUPREME COURT OF NAMIBIA















In
the matter between:


















THE
STATE



APPELLANT












And


















JOHNY
HOAëB



RESPONDENT












CORAM: STRYDOM,
ACJ, O’LINN, AJA
et
MTAMBANENGWE, AJA







Heard
on: 08/04/2004.







Delivered
on: 08/09/2004















APPEAL
JUDGMENT















STRYDOM,
ACJ
:
The respondent, a 38 year old Namibian Citizen, was charged in the
High Court with murder (Count 1), attempted murder (Count 2), assault
with the intent to do grievous bodily harm (Count 3) and rape (Count
4). All the charges relate to actions by the respondent on the night
of 9 September 2000 at Orwetoveni township, Otjiwarongo. During the
night the respondent returned to the shack where he, the complainant
on the second Count, CG, and the 9 months old son of the respondent
and CG lived. On the way to his house the respondent met the
complainant on the 3
rd
and 4
th
Counts, MG, a younger sister of CG, and forced her to accompany him
to his house. At his house he immediately started to assault CG and
when the baby cried he picked him up and threw him out of the house.
Thereafter he continued his assault on CG during which he used
various weapons such as a spear, a piece of wood and a pick handle.
During the assault CG was twice stabbed by the respondent with the
spear. Both wounds had to be stitched. Although there was evidence
that the infant boy was thrown to the ground on more than one
occasion the Court
a
quo

found that this happened at least once. The Court made this finding
because the evidence of CG and MG differed on this aspect.







The
Court also found in respect of MG that she was assaulted by the
respondent and that he had sexual intercourse with her against her
will. This took place in the presence of CG.







The
findings of the Court was made on the versions of the State
witnesses. The Court was alive to certain discrepancies and
conflicts in the evidence of CG and MG and, after a proper analyses
of the evidence, came to the conclusion that most of the differences
were not material. The respondent, who was legally represented,
elected not to give evidence, or call witnesses.







In
the end the respondent was convicted as follows:







On
Count 1 the respondent was convicted of murder. In this regard the
Court
a
quo

found that the respondent acted with
dolus
eventualis.
On
Count 2 the respondent was convicted of assault with the intent to do
grievous bodily harm. In regard to Count 3 the respondent was
convicted of assault and on Count 4 he was convicted of rape.







The
Court
a
quo
sentenced
the respondent to twelve years imprisonment on the conviction for
murder. The sentence on Count 2 was three years imprisonment. In
regard to MG the respondent was sentenced to six months imprisonment
on Count 3 and to ten years imprisonment on Count 4, i.e. the
conviction for rape.







However,
the Court then ordered that the sentences imposed in regard to Counts
2, 3 and 4 should run concurrently with the sentence imposed on Count
one. The result of this was that the effective term of imprisonment
imposed was twelve years. The appellant, the State, was not
satisfied with the sentences, more particularly the order by the
Court
a
quo

that the sentences imposed in respect of Counts 2, 3 and 4 should run
concurrently with that imposed on Count 1. The appellant
consequently applied for leave to appeal against the sentences which
leave was granted by the learned Judge
a
quo.







Mr.
Potgieter represented the appellant and Ms. Hamutenya appeared for
the respondent at the request of the Court. The Court hereby
expresses its appreciation for the assistance given in this matter by
Ms. Hamutenya.







Both
Counsel agreed that it was settled law that the Court

a quo

has an unfettered discretion when it comes to the imposing of a
sentence at first instance. They were furthermore agreed that a
Court of Appeal will only interfere with the sentence should it find
that the sentence imposed is not a reasonable one, or where the
discretion has not been judiciously exercised in the sense that the
sentence imposed is startlingly inappropriate or induces a sense of
shock or is such that a striking disparity exists between the
sentence imposed by the trial Court and that which the Court of
Appeal would have imposed had it sat in first instance. (See
S
v Shikunga and Another,
1997
NR 156 (SC) 173 B-F;

S v Shapumba,

1999 NR 342 (SC) 344J-345A and
S
v Gaseb and Others,
2000
NR 139 (SC) 167 G-I). A further ground on which a Court of Appeal
will be competent to interfere with a sentence imposed in first
instance is where such Court misdirected itself on the law or facts
to such an extent that it can be said that the Court exercised its
discretion unreasonably or improperly. (See
S
v Pillay,
1977
(4) SA 531 (A)).







Mr.
Potgieter submitted that the learned Judge
a
quo
,
in an attempt to ameliorate the cumulative effect of sentencing the
respondent in respect of the serious charges on which he was
convicted, erred in regarding the crimes as part of a single criminal
transaction closely associated in time, place and circumstances and
that this finding had the effect that the Court ordered that the
sentences on Counts 2, 3 and 4 run concurrently with the sentence
imposed on Count 1. Counsel submitted that the rape was not so
closely associated and that the order of the Court meant that the
respondent went unpunished in regard to this conviction. In the
alternative Counsel submitted that, bearing in mind the seriousness
of the crimes of which the respondent was convicted, an effective
sentence of 12 years imprisonment was inappropriate and so lenient as
to induce a sense of shock.







Ms.
Hamutenya stressed the fact that this Court’s power to
interfere with the sentence of the Court
a
quo

is limited. She submitted that there was no irregularity nor any
misdirection committed. She furthermore pointed to the fact that the
trial Court was aware of the seriousness of the crimes committed by
the respondent and to that extent highlighted the findings by the
Court which clearly supported her submission. She therefore urged
the Court not to interfere with the sentence.







Where
an appeal Court is asked to increase a sentence imposed by the trial
Court, the Court of Appeal is subject to the same limitations as if
it were asked to interfere in a sentence which was too harsh. In the
present instance the trial Judge took into consideration all the
personal circumstances of the respondent in determining a sentence.
He also took into consideration that the respondent was to a certain
extent under the influence of liquor. All in all it seems to me that
it cannot be said that the learned Judge misdirected himself in
regard to the facts of the matter.







However,
in my opinion, the effective sentence of 12 years imprisonment
imposed in this instance is startlingly inappropriate. The
respondent was convicted of the commission of three serious crimes of
which one was murder and the other rape. In regard to the crime of
murder the victim was his own 9 months old baby son. Although the
Court found intention in the form of
dolus
eventualis

the facts show that this is a borderline case which came close to
dolus
directus.
From
the medical evidence it is clear that the deceased died of head
injuries which caused extensive internal bleeding. To throw a baby
infant for a distance through the air, to fall without any support on
the ground, carries with it such a high incidence of serious and
fatal injury that a finding of
dolus
directus

may have resulted if the evidence of how the infant was thrown was
clearer. In all the circumstances the commission of the murder on a
helpless infant who, as was found by the learned trial Judge, was
under the care and protection of the respondent, constitutes a high
degree of moral blameworthiness on the part of the respondent.







After
the serious assaults on CG and the infant boy the respondent, who had
brought MG to his house by force, then assaulted her and had sexual
intercourse with her against her will. This happened in the presence
of the woman with whom the respondent had a relationship and who is
the mother of his child. The Court
a
quo
,
in my opinion, correctly found that this must have been particularly
humiliating for both women.






The
way in which the crimes were committed and the circumstances which
led to the commission of the crimes caused the learned trial Judge to
remark on the seriousness of the crimes “demanding severe
sentences”. The Court further stated that the actions of the
respondent “are grossly morally reprehensible and are abhorred
by society.” The sentences imposed individually reflect the
sentiments expressed by the learned Judge and correctly so. However,
by ordering that the sentences on Counts 2, 3 and 4, all to run
concurrently with the sentence imposed on Count 1, the Court imposed
in my opinion a sentence which was glaringly inappropriate in all the
circumstances. The Court took into account, so it seems, the
cumulative effect of the individual sentences imposed. (See
S
v Shapumba,

1999 NR 342.) In doing so the Court was not obliged to order that
all sentences should run concurrently but should have considered to
order that, e.g. the sentence on the conviction for rape, to run
partially concurrent with the other sentences. (See
S
v M,
1993
(1) SACR 126(A) at f – h).





If
I had sat in first instance in this matter I would have ordered that
the respondent serve at least 6 years of the sentence imposed on the
rape charge. In the result the effective sentence of imprisonment
would be 18 years instead of 12 years that the respondent would have
had to serve. An increase of the sentence by 6 years is in my
opinion sufficiently striking to allow this Court to interfere with
the sentence imposed by the Court
a
quo.





The
appeal therefore succeeds to the extent that in respect of Count 4
only four years of the sentence of ten years is ordered to run
concurrently with the sentence imposed on Count 1.





In
the result the order of this Court is as follows:






  1. On
    Count 1 the respondent is sentenced to 12 years imprisonment;


  2. On
    Count 2 the respondent is sentenced to 3 years imprisonment;


  3. On
    Count 3 the respondent is sentenced to 6 months imprisonment; and


  4. On
    Count 4 the respondent is sentenced to 10 years imprisonment.


  5. It
    is further ordered that the sentences on Counts 2, 3 and four years
    of the sentence of ten years on Count 4 to run concurrently with the
    sentence imposed on Count 1.


  6. The
    above sentences are backdated to the 15
    th
    February 2002, being the date when the respondent was sentenced by
    the Court
    a
    quo.















________________________


STRYDOM
ACJ











I
concur.











________________________


O’LINN,
AJA











I
concur.











________________________


MTAMBANENGWE,
AJA



































COUNSEL
ON BEHALF OF THE APPELLANT:



MR.
A.H. POTGIETER



INSTRUCTED
BY:



THE
PROSECUTOR-GENERAL



COUNSEL
ON BEHALF OF THE RESPONDENT:



MS.
L. HAMUTENYA



INSTRUCTED
BY:



AMICUS
CURIAE