REPORTABLE
REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
Case No: CC 3/2012
THE STATE
versus
NEKONGO NOABEB
Neutral citation: S v Noabeb (CC 3/2012) [2014] NAHCMD 106 (31 March 2014)
Coram:
SHIVUTE, J
Heard:
26 March 2014
Delivered:
31 March 2014
Fly note:
Criminal Procedure – Sentence – Accused convicted of – Culpable
homicide – Murder with direct intent – In determining an
appropriate sentence regard had to be had primarily to the
circumstances of each case.
Summary:
Criminal Procedure – Sentence – Accused was convicted of
culpable homicide and murder with direct intent – In determining
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an appropriate sentence regard had to be had primarily to the
circumstances of each case.
SENTENCE
First count of culpable homicide: 10 years’ imprisonment.
Second count of murder with direct intent: 20 years’ imprisonment.
The two sentences are to run consecutively.
SENTENCE
SHIVUTE J:
[1]
The accused was convicted on one count of culpable homicide which is the
first count and the second count of murder. The first count was committed between
25 and 26 December 2009 while the second count was committed on 5 March 2011.
[2]
The accused and the deceased in the first count had an intimate relationship
out of which a boy aged 10 was born. The deceased in the first count is a cousin to
the accused. Both crimes were committed after the accused and the deceased
persons spent the evening drinking.
[3]
The deceased in the first count was stabbed when she, the accused and
some family members were on their way to the farm from a drinking place. Prior to
the deceased being stabbed, the accused had threatened to cause harm to her.
When he caught up with her he assaulted her by kicking her and stepping on her
with shoes. The accused was restrained from assaulting the deceased. However; he
inserted his hand inside the pocket and took out an object that looked like a knife.
This resulted in the person who was holding the accused to let go off him. After he
was released, he followed the deceased who managed to run away at the time the
accused was restrained. When he got hold of her he fatally stabbed her with a knife
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on the thigh. The deceased died as a result of blood loss or hypovolemic shock due
to severe haemorrhage because the deceased’s femoral artery was severed.
[4]
On the second count, the accused and the deceased met at a drinking place.
After the accused had left the drinking place and went home, the deceased followed
the accused to his house. He went into the accused’s bedroom and pulled him off
his bed. A fight erupted between the two. The owner of the house where the accused
was renting came to stop the fight and escorted the deceased outside the house.
That did not deter the deceased. Instead, the deceased reappeared and fought the
accused again. They fought from the bedroom to the living room. Whilst they were
fighting the accused left the living room, went outside to the next room where he
picked up a knife and came back to the living room. There he fatally stabbed the
deceased. The deceased suffered a stab injury to the chest that caused his death.
[5]
The accused gave evidence in mitigation of sentence. His personal
circumstances may be summarised as follows: He is a first offender who has been
in custody since March 2011 awaiting trial. These are circumstances which weigh in
his favour. The accused is 32 years old, single and a father of two minor children
aged 10 and 3.The mother of the 3 year old child is still alive and is the one looking
after the child. The accused’s child with the deceased is being looked after by his
disabled mother. The accused has two siblings.
He testified that he has been
attending church service while in custody. He also indicated that he 'felt bad' that he
has caused two people to lose their lives.
He claims that he has been having
nightmares hearing the deceased in the second count saying that he should leave
the cells to go and look after the deceased’s children. The accused testified that he
used to help the male deceased prior to his death and he was concerned about the
wellbeing of the deceased’s children.
The accused again testified that he had
apologised to the mother of the deceased in the first count. He further requested the
court to impose a suspended sentence so that he could go and look for work.
[6]
Counsel for the State called the brother of the deceased in the first count, Mr
Gerson Witbeen, to testify. He testified that the deceased was employed as a
domestic worker and she was supporting her children and the rest of the family. The
family could not cope with her death.
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[7]
Counsel for the State argued that the accused took away the lives of the two
people who were in the prime of their lives. The accused’s late partner was about 27
and the accused’s late cousin was about 33 years.
The two offences were
committed over a span of two years. The loss of life has caused a deprivation of
maintenance of both deceased’s persons’ children. What aggravates the offence of
culpable homicide in this case is that the accused was not merely negligent but he
was acting unlawfully by stabbing the deceased. The offence must be seen in a
more serious light because the accused was pursuing an unlawful act, so counsel
submitted. Counsel went on to contend that domestic violence had reached serious
proportions in the country. He argued furthermore that the accused’s negligence
had resulted in a loss of life and therefore this should constitute an aggravating
factor that attracts a severe sentence. Counsel submitted that although the accused
said he apologised to the deceased’s mother he did not show any remorse because
he felt that it was just an unfortunate accident in respect of the first count and that he
was not really wrong when he acted negligently. Therefore the remorse is really halfhearted.
[8]
Counsel further argued that by asking for a suspended sentence the accused
did not appreciate the gravity of his actions. Concerning the second count of murder
counsel argued that the offence is serious and the court should impose a harsh
sentence. He argued again for the court to impose a sentence that would run
consecutively due to the fact that the crimes were committed separately. It is counsel
for the State's submission that the court may also consider a suspended sentence.
Counsel referred me to several authorities regarding sentencing which I have
considered.
[9]
On the other hand counsel for the accused requested the court to impose
sentences that would run concurrently. He also urged the court to consider that
alcohol was involved in both counts.
[10]
I have considered what the accused said in mitigation as well as arguments
from both counsel. Although the accused was convicted of culpable homicide, it is an
aggravating factor that he committed a domestic violence crime by killing his intimate
friend. This crime was not a pure accident because the accused first threatened to
cause harm to the deceased. When he caught up with her he applied physical force
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on her. The deceased managed to run away but this did not deter the vicious
accused to execute his unlawful act. When he reached the deceased, he fatally
stabbed her. The circumstances in which this offence was committed are so peculiar
that it calls for a lengthy term of imprisonment. The deceased did not deserve to be
killed.
[11]
Concerning the second count, murder is a very serious offence. However, the
circumstances of this count are also peculiar in the sense that the accused had left
the place where he had spent the evening with the deceased drinking. Whilst he was
in the comfort of his bedroom, the drunken deceased came and fought the accused.
The deceased was escorted outside but he reappeared and fought the accused
again. They fought from the accused’s bedroom to the living room. Whilst they were
fighting, the accused went outside to the next room where he picked up a knife and
upon returning stabbed the deceased on the chest with it. The accused had also
consumed alcohol that evening although the evidence is that he was not very drunk.
It is evident that the deceased was the initial aggressor. There was a serious
provocation on the part of the deceased and I consider this to be a mitigating factor
in favour of the accused.
[12]
In determining an appropriate sentence regard had to be had primarily to the
circumstances of the case. Having considered the factors relevant to sentencing,
namely the crime, the personal circumstances of the accused and the interest of
society the accused is sentenced as follows:
First count of culpable homicide: 10 years’ imprisonment.
Second count of murder with direct intent: 20 years’ imprisonment.
The two sentences are to run consecutively.
---------------------------------N N Shivute
Judge
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APPEARANCES
STATE
:
Mr Nduna
Office of the Prosecutor-General
ACCUSED:
Mr Mbaeva
Instructed by Directorate of Legal Aid