CASE NO.

: CC 14/2010 IN THE HIGH COURT OF NAMIBIA HELD AT OSHAKATI In the matter between: THE STATE and MAKUNI ERASTUS ROBERTH

CORAM:

LIEBENBERG, J.

Heard on: 25 November 2010. Delivered on: 14 December 2010.

SENTENCE

LIEBENBERG, J.:

[1] The accused stands convicted on charges of murder and

assault, read with the provisions of the Combating of Domestic Violence Act, 2003 (Act No. 4 of 2003) in that he on 25 June 2008 at Rundu unlawfully assaulted his

2 common law wife by slapping her twice in the face whereafter he intentionally killed his one year old baby daughter.

[2] On the murder charge (count 1) the accused was convicted on his plea of guilty; whereas he was convicted of assault (count 2) after the evidence of the complainant was led. In a statement prepared on behalf of the accused by his counsel in terms of s 112 (2) of Act 51 of 1977, the accused made admissions in the following terms:

“2.2

On or about 25 June 2008 I unlawfully and intentionally killed Musova Regina Makuni, my minor daughter, by hitting her head against a pole and by throwing her to the ground;

2.3 2.4 2.4.1

that by so doing I caused the death of my daughter; that I knew that my conduct was intentional and unlawful; I admit that the deceased is my daughter and that I was in a domestic relationship with her.

2.5 2.6 2.7

I do not dispute the content of the post-mortem report. I regret killing the deceased. I admit that it was wrong of me to hit the child against the pole and on the ground thereby causing her death.

2.8

I further admit that I realise that I was acting wrongly and unlawfully and that I could be punished if found guilty by a court of law.”

[3]

It is common cause that the accused and the complainant at all relevant times

were engaged in a domestic relationship as defined by the Combating of Domestic Violence Act, 2003 as they were married under customary law and as such, were the parents of the deceased in count 1, a one year old baby girl. The injuries inflicted on

3 the deceased are recorded in the post mortem report received into evidence by agreement, which are the following:- Skull fracture (of the) occipital and parietal bones; - Massive subarachnoidea (sub-dural) haemorrhagic (sic). The cause of death was noted as “Skull fracture for beating in the head”. (sic)

[4]

The circumstances under which the crime was committed came forth in the

evidence of the accused’s wife, Ihemba Sihako, who testified that she was at home with the deceased when the accused returned under the influence of alcohol. After serving him with food she retired to bed whereafter the accused came asking for matches. Upon enquiring what he needed the matches for, he said he wanted to burn down his parents’ house and then slapped her twice in the face. He thereafter picked up the baby (who had been sleeping) by her legs and swung her body, hitting her head against one of the poles of the thatched structure used as sleeping hut twice and thereafter threw the body into the air, causing it to fall to the ground. The accused then told the complainant to take the child to his mother; and whilst on the way, the accused followed saying that she must bring the child to him so that he could “finish her off”. According to Sihako her child’s heart stopped beating soon after she had picked her up from the ground where she had fallen. At his parents’ homestead she laid the deceased down and the accused then threatened to burn down the homestead with the child inside.

[5]

It also emerged from her testimony that the accused on previous occasions

threatened to kill his child which he had with Sihako (the deceased) as that would leave her “in the same position as he found her”. She also related to an incident

4 which took place the previous day, during which the accused grabbed the deceased on the neck trying to strangle her, but failed as others had intervened and took the baby and hid her from the accused. On that occasion he uttered the same threat. According to her the accused would usually act in this way when he was under the influence of liquor – something that appears to have happened reasonably often during the 4 – 5 years that they had been together.

[6] The Court in terms of s 25 (2) of the Combating of Domestic Violence Act, 2003 (‘the Act’) invited Sihako, as the deceased’s mother and being the complainant in count 2, to give evidence and express her views concerning the crime, the accused, and the impact the crime personally had on her. Complainant was at a loss for words, not knowing what to say. She did however say she was still feeling pain “in her heart” for the loss of her child and would then remember the accused’s words that it was his blood that was killed (not hers) – as if to say that she had no part in their child. Although she expressed some fear that the accused, when released, might return to harm her, she did say that she had forgiven him and that he could be released, as long as he behaves. However, she had no intention of joining him in marriage again. According to her their marriage was fine until the accused started drinking; and usually, once he became drunk, he would start fighting her and in her view, “becomes like a mad person”.

[7] From the abovementioned it seems evident that their marriage was far from being harmonious and although there were times when it was peaceful, there were also times when the accused would become violent towards his family and cause danger to their lives and well-being. These incidents would come as a result of the accused

5 having consumed liquor. The previous threats about him wanting to kill their child, thereby leaving the complainant as he had found her, as well as the actual brutal killing of the baby, must have instilled the deepest of fear within the complainant’s mind; and how she could still forgive the accused for what he has done to her child, is almost beyond comprehension. The misuse of alcohol – as in many other families in this country and elsewhere – obviously had a direct impact on the lives of the family members in this case, as they were living their lives in fear whilst being humiliated and subjected to assaults to the point that the most helpless and frail had to pay the highest price. Domestic violence has taken on alarming proportions in our society and I venture to say that the majority of cases of murder and assault perpetrated in this country, fall within the ambit of “domestic violence” as defined under the Act. For that reason alone the courts should take a stern view in punishing those who make themselves guilty of crimes which erode, and sometimes even destroy, the sanctity of the family unit. In the present instance the accused, through the senseless killing of his baby daughter effectively brought an end to the existence of the whole family. All that remained is the complainant who is incapable of providing in her own needs and that of her other children. Furthermore, Chapter 3 of the Namibian Constitution dealing with Fundamental Human Rights and Freedoms in Article 15 (1) states:

“Children shall have the right from birth to a name, the right to acquire a nationality and, subject to legislation enacted in the best interest of children, as far as possible the right to know and be cared for by their parents.” (Emphasis added)

The accused trampled on these rights as if they were non-existent.

6 [8] The accused at the age of 29 years is a first offender. He was a subsistence

farmer who made a living from herding cattle and assisting his parents with cultivation, earning N$200 per month. He attended school and advanced up to grade 4 whereafter he dropped out. He was in a customary union (marriage) with the complainant from which the deceased was born as his only child. The accused did not mitigate on oath and on his behalf it was submitted that his plea of guilty must be seen as honesty on his part and a sign of remorse; that he has learned a lesson and that he did not waste the Court’s time. The accused is in custody since June 2008 which at present is a period of almost two-and-a-half years.

[9]

For remorse to be a factor to be taken into consideration in sentencing, it has

been said that penitence must be sincere and demonstrable and therefore the accused has to fully take the Court into his confidence by giving evidence before the genuineness of the alleged contrition can be determined. See: (S v Auala (No. 2) 2008 NR 240 (HC) at 242G-J; S v Swartz and Others Case No. CC 08/89 (unreported)). In the Swartz case (supra) Maritz J (as he then was) stated the following as regards contrition:

“Real remorse for an injustice done to another must come from the heart and cannot be displaced by a desire to rather attempt in winning your freedom in an appeal. The sooner after the commission of a crime remorse is expressed and reparation steps are undertaken, the more genuine the expression thereof will fall on the ears of the Court. It requires of a suspect not only to express it, but also to conduct himself in such a manner that his remorse is evident from his actions.”

7 [10] Therefore, unless the accused opens up and allows the court to consider the

sincerity of the alleged remorse, it will be difficult, if not impossible, to give sufficient weight to an accused's claim of contrition. In the present instance the accused, after having hit the deceased’s head against the pole, he repeatedly told the complainant that he would “finish off” the child, not knowing that she had already died. He also continued threatening to burn down his parents’ house without ever saying why he wanted to do so. Against this background and in the absence of anything else other than his plea of guilty, I am unable to find that the contention of remorse carries sufficient weight to have a mitigating impact on sentence. I

accordingly give little weight to the accused's expression of remorse for the wrong he has done.

[11]

It is trite law that in sentencing, the court must consider several opposing

factors relating to the crime, the offender and the interests of society; and by so doing, attribute sufficient weight to each factor in its determination of a sentence that would serve the interests of the accused as well as that of society. It has been said that: “Punishment should fit the criminal as well as the crime, be fair to society, and be blended with a measure of mercy according to the circumstances” (S v Rabie 1975 (4) SA 855 (AD) at 862G-H). At the same time regard must be had to the objectives of punishment and what sentence, in the circumstances of the particular case, would be in the best interest of the accused; whilst also reflecting that due consideration was given to the interests of the community (See S v Tjiho 1991 NR 361 (HC)). It is not required that equal weight be given to the factors as the circumstances of the case may require that one factor needs to be emphasised at the expense of the others as was stated in S v Van Wyk 1993 NR 426 (HC) at 448D-E.

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[12]

I shall now consider the crimes committed by the accused against his baby

daughter and wife, respectively. Although at first glance not considered to be serious, the slapping of the complainant in the face is indicative of the accused’s disrespect for his partner and family – those who were supposed to be near and dear to him and who were entitled to rely on his protection; instead of falling victim to his uncontrolled an unacceptable behaviour. When sober, the accused was no threat to his family;

however, when under the influence, he became aggressive and violent and turned on his own people by physically assaulting them whilst uttering threats of violence. This conduct manifested itself in an assault perpetrated against the baby the previous day and culminated in the actual killing of his baby daughter in the most brutal and inhuman manner imaginable i.e. by taking the child by the legs and hitting her head against a wooden pole twice and thereafter throwing her up in the air, causing her to drop to the ground, dying instantly. This innocent child became the victim of a savage who clearly does not respect the rights of others and fails to appreciate the privilege of parenthood; and who decided to punish his wife by killing their baby – as he had stated – to “leave her as he had found her” i.e. without his child. From his perspective, as one is able to infer from his wife’s testimony, it would appear that the accused afterwards held the view that, “because it was his blood”, therefore, he was entitled to take her life. This mindset as well as the manner in which he had killed his one year old baby cannot, in modern society, otherwise be described as barbaric. It seems incomprehensible how any person – and more so the father of the victim – can become so heartless and brutal to kill his own flesh and blood in such an inhumane and undignified manner.

9 [13] I am mindful of the evidence that the accused on that fateful evening returned home under the influence and that the consumption of liquor most probably played a role when committing the crimes. To what extent however this played a role, the Court is not able to determine as the accused elected to remain silent throughout his trial. There is nothing showing that the accused was intoxicated to the point that his judgment was impaired and as Ms. Nathaniel-Koch submitted, the accused’s intoxication was never a factor during their consultations. His conduct that night was consistent with previous occasions when he came home intoxicated and would then become violent towards his family. I therefore do not find the accused’s condition of intoxication to be a mitigating factor. The complainant testified about a similar incident that happened the previous night when the accused tried to strangle his baby, for the same reason he eventually killed her i.e. to punish his wife. He therefore harboured the intention of killing her at least from the previous day and gave effect thereto when he hit her head against the pillar. The reason why the accused became violent and acted as he did was because the complainant asked him what he wanted to use the matches for and for failing to give it to him. Is that sufficient reason to become so angry to assault your wife and kill your baby? Definitely not. What is clear from the complainant’s evidence is that the accused’s violent conduct over a period of time had an adverse effect on their marriage and with the death of their baby, reached the point where the complainant today has no interest of allowing the accused to return to her, as she fears for her life. Bearing in mind the availability of alcohol throughout Namibia and the impulsive conduct displayed by the accused that night after consuming liquor, the complainant’s fear raised is valid and is an aggravating factor to be taken into consideration in sentencing.

10

[14] By nature the offence of murder is serious and more so when regard is had to the circumstances under which the crime was committed. Not only did it involve the senseless killing of a baby, but the crime was also committed in circumstances defined under the Act, as domestic violence. These are aggravating circumstances. This Court in the recent past in a number of cases expressed its concern over the increase of serious crimes involving domestic violence committed in this country and in no uncertain terms stated that these crimes “will not be tolerated and that sentences will be appropriately severe” (S v Bohitile 2007 (1) NR 137 (HC); The State v Johannes Mushishi (unreported) Case No. CC 07/2010 delivered on 24.06.2010). In the Mushishi case I have stated the following with reference to crimes committed against spouses and children, which in the present instance seems worthwhile repeating:

“[10] How much longer must society still endure this unacceptable conduct of those amongst them who trample on the fundamental rights of others without blinking an eye; and how many more lives must unnecessarily go wasted before these criminals come to their senses and learn that spouses, partners and children also have rights? Our news media all too regularly report the terrible crimes committed in this country on a daily basis and a large number of our citizens live in constant fear that they might fall prey to violent crime. What purpose does it serve to have one’s fundamental rights enshrined in our Constitution but in reality innocent and vulnerable citizens are treated as if their lives are unimportant and not worthy of respect, one may ask? This Court plays an important role in applying the law in the community and to maintain law and order; therefore, it should not shirk from its duty by ignoring the wide spread outrage and disapproval of society against serious crime, lest the community might take the law into its own hands. If there is one message that should go out from this Court today, then it is that those making themselves guilty of committing serious crime against the vulnerable and innocent in

11
this country, must not expect to be treated with soft hands. By that I do not intend singling out the accused as the scapegoat of all those guilty of committing similar crimes, but the message must be clear that the courts will continue imposing harsher sentences in cases like the present, which should serve as a serious warning to all and sundry.”

[15] In the past few weeks it was reported in the media that in two separate incidents members of society upon arrest of the suspects attacked and assaulted them before the police arrived on the scene. Conduct where the law is taken into own hands can never be condoned by the courts and this unacceptable practice must be condemned in the strongest terms; as even persons suspected of having committed heinous crimes have a constitutional right to be given a fair trial in which the State bears the onus to prove their guilt beyond reasonable doubt. When considering the interests of society at the stage of sentencing, the court should not give in and satisfy public expectation; as there is a material difference between these two concepts. What the public might perceive to be “fair punishment” may not be in the interest of society or do justice. The communities therefore cannot and should not take over the function of our courts. On the other hand, the courts must stay in touch with reality and have cognisance of the values of society and accompanying anger expressed by those who have fallen victim to unscrupulous criminals or suffered unmeasured pain as a result of heinous crimes committed to those near and dear to them.

[16]

In this case there was no protest or any action taken by the community, but I

have no doubt in my mind that society condemns this horrendous killing of a baby in the strongest terms and wants justice to be seen; in that a severe sentence be imposed on the accused today.

12 [17] The period of two-and-a-half years the accused has spent in custody is a

weighty factor to be taken into consideration and would lead to a reduction in the sentence to be imposed on the accused (S v Kauzuu 2006 (1) NR 225 (HC) at 232FH).

[18] Turning to the objectives of punishment I am of the view that the facts of this case dictate that the emphasis fall on prevention, deterrence and retribution and call for a lengthy custodial sentence. As alluded to earlier, the accused, having no respect for human life, is not only a threat to the complainant, but also a threat to society in general and should therefore be removed from its midst until such time that he has learnt to respect the right of others. The mitigating factors found in favour of the accused do not sufficiently weigh up against the gravity of the crime of murder committed by the accused and the legitimate interests of society. In coming to that conclusion I am mindful of the accused’s plea of guilty; that he is a first offender; and has been in custody awaiting trial for a long period of time.

[19]

Regarding sentence on count 2, I am of the view that although the assault

perpetrated on the complainant was not serious in that she did not sustain any injuries, sentence has to be considered against the backdrop of domestic violence and therefore this Court should confirm its disapproval of such conduct by imposing a sentence that might serve as a warning to others who make themselves guilty of similar conduct within domestic relationships.

13 [20] In the result, the accused is sentenced as follows:

1. Count 1 – Murder: 35 years imprisonment. 2. Count 2 – Assault: 6 months imprisonment. In terms of s 280 (2) of Act 51 of 1977 it is ordered that the sentence imposed on count 2 shall be served concurrently with the sentence imposed on count 1.

______________________________ LIEBENBERG, J

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ON BEHALF OF THE ACCUSED Instructed by: ON BEHALF OF THE STATE Instructed by:

Ms. Nathaniel-Koch Directorate: Legal Aid Mr. D. Lisulo Office of the Prosecutor-General

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