1

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

SENTENCE

Case no: CC 05/2012

In the matter between:

THE STATE

and

ALBERTINAKAPOLO ACCUSED

Neutral citation: S v Kapolo(CC 05/2012) [2013] NAHCNLD 52(14 October 2013)

Coram:TOMMASI J

Heard:14 June, 29 July, 17 & 25 September & 14 October 2013

Delivered:14 October 2013

Flynote:Sentence – Culpable homicide – Court may take into consideration that the deceased was the domestic partner of the accused – Wellbeing of the minor children investigated – Recommended that it would be in the best interest of the children to be placed with relatives as they developed a sense of belonging – A previous conviction of culpable homicide and lack of genuine remorse demonstrates that accused would not be a good candidate for community service or personal deterrent sentence - The nature of the offence and interest of society outweigh personal circumstances custodial sentence the only appropriate sentence.

Summary:The accused was convicted of culpable homicide in that she negligently caused the death of her domestic partner. The accused, aged over 60 years, assaulted the deceased after he persistently demanded his money which the accused lost, refused to leave her homestead and had verbally abused the accused. The accused was vulnerable at the time as she had limited eyesight. She however managed to strike the deceased several times with sufficient force to fracture his skull and ribs. She denied that she struck the deceased several times and reluctantly accepted responsibility for the other injuries inflicted. The court was not persuaded that the accused showed genuine remorse. The court considered her advance age, her concern for the minor children, her impaired vision, her lack of restraint caused by the alcohol intake and the events which occurred in the week prior to the incident, the time the accused spent in custody after her arrest and the fact she herself was the victim of prolonged domestic abuse. In the final analysis the court found that the offence committed and the interest of society outweigh her personal circumstances. Custodial sentence found to be the only appropriate sentence.

ORDER

1.The accused is sentenced to 4 years’ imprisonment.

SENTENCE

TOMMASI J:

[1]The accused was convicted of culpable homicide in that she negligently caused the death of the KashinaeniShindingeni, her domestic partner and father of her youngest daughter. The parties did not make any submissions whether or not the provisions of the Combatting of Domestic Violence Act, 4 of 2003 should be applied upon a conviction of culpable homicide and I shall therefore not address this issue herein. Suffice it to say that this court may consider the fact that the offence was committedby the accused on her domestic partner in order to arrive at an appropriate sentence.

[2]The accused testified that she was born sometime in 1954. During cross-examination in the main trial she was confronted with the fact that her voter registration card reflects that she was born on 1 November 1949. Her official identity document however reflects that she was born on 19 September 1960. She testified that her birth was not registered and she was only informed that she was born in 1954. It is reasonable to infer from these facts that the accused is older than 60 years. She suffers from a degenerative eye disease which causes her sight to deteriorate and it may eventually lead to blindness. She receives a monthly disability allowance of N$500 which she uses to maintain herself and her minor children although she testified that this income alone was not sufficient. She completed grade two but is functionally illiterate. I gained the distinct impression that the accused worked hard to support her family before the incident. She is a subsistence farmer and in addition hereto also sold meat (kapana). She was living with her two minor children who assisted her with chores around the homestead and who escorted her to and from places. She expressed a desire for her life to be restored to what it was prior to the incident.

[3]She testified that her life changed after her arrest. After she was released on bail on November 2011 she found that her children were living with relatives. She moved from her home where she lived at the time of the incident and moved from one household to the next. Her youngest daughter moved with her whereas her son continued living with different relatives and visited her during school holidays. She felt that her life was a “mess”. She testified that she was unable to provide a secure home given the pending case but pleaded with the court to be allowed to take care of children fearing that they may be adversely affected if the court were to impose custodial sentence.

[4]Given her sincere concern for the children, I requested a welfare report to be obtained. The report was received into evidence without any objection. The following relevant facts can be gleaned from the report and supporting documents; the accused’s minor son is currently 15 years old and a grade 5 learner; he was living with relatives; her daughter is 13 years old and was living with her in a house which the accused constructed next to her brother’s house. The welfare officer expressed concern that the children would be forced to become caregivers of their partially blind mother. The welfare officer was further of the view that this would be a huge responsibility for the young children. She recommended that the children remain in the care of the relatives as the children have developed a sense of belonging. Counsel for the accused informed the court that the minor daughter left the house for three days to live with another relative but was unable to provide any further details. The accused may raise this issue with the welfare officer who should be in a position to provide continued assessment of the wellbeing of the children.

[5]The report gave the court an insight into the circumstances of the children which has been far from ideal. They have been exposed to domestic violence perpetrated by both the accused and the deceased and they undoubtedly would find growing up challenging. The report confirms what the court sensed from the accused testimony i.e that the accused was genuinely concerned about the wellbeing of her children and, although she herself requires care, would be in a position to support her family members in the parenting of the children.

[6]The relationship between the accused and the deceased prior to his death was far from loving. The parties frequently quarreled and the accused suffered domestic abuse at the hands of the deceased. The accused, on the day preceding the incident, lost the deceased’s pension money and he refused to accept the explanation offered by the accused. He visited her homestead pursuing his demand for his money. He refused to leave her homestead and verbally abused the accused. The accused admitted that she too argued with the deceased.

[7]The accused was only prepared to admit to hitting the deceased once on his head and reluctantly conceded that she was the only person who fought with the deceased and who could have inflicted the other injuries he sustained. The accused did not take the court fully into her confidence. She failed to give the full details of what had transpired between her and the deceased. She testified in mitigation that she sometimes think about the death of the deceased and has difficulty in coming to grips with the fact that he died as a result of the assault. She testified further that her family member sold her small stock and paid some compensation to the family of the deceased but was not present when it was paid. She confirmed that she did not apologise to the family members as this is traditionally done in the presence of her family. The accused grudgingly takes responsibility for the death of the deceased and lamented the fact that his death negatively impacted on her life. I am not persuaded that this constitutes genuine remorse.

[8]The accused spend almost one year in custody before being released on bail.

[9]The State called the daughter of the deceased. She testified that she had lost a father who financially supported her. She was unaware of any compensation paid by the accused. Despite her loss she however testified that the accused may be given a fine.

[10]The State handed in a report of previous convictions which was admitted by the accused. It reflects that the accused had been convicted of “culpable homicide – stick” on 7 March 2006. The accused was sentenced to: “3 years imprisonment wholey suspended for 5 years on condition that the accused is not convicted of culpable homicide during the period of suspension”. The current offence was committed on 26 November 2010. It is noted that the previous conviction is recent and very similar to the current conviction. It is apparent from the report that the accused on a previous occasion also negligently caused the death a person by perpetrating an assault on the person with a stick.

[11]The current offence was committed during nighttime and the accused had limited vision. The accused managed to land several blows on the body of the deceased. Evidence was adduced during the main trial that the accused had consumed alcohol. She testified that she had taken evasive action during previous occasions of abuse. The consumption of alcohol and the events during the week prior to the incident played a role in her decision to assault the deceased rather than flee from him as she used to do.

[12]The deceased suffered severe injuries which included fractures to his skull and ribs. The deceased, after being beaten by the accused was still alive and died a short distance from the accused’s homestead. The time of death was not known. He died alone in a field not far from the accused’s homestead. The time of death was not known.

[13]The court has to carefully consider, the relevant facts in mitigation and aggravation, the factors such as the accused, the crime she had committed, the interest of society, the weight to be afforded to each factor whilst bearing in mind that the objectives of punishment. The court should strive to impose a sentence which would not be too light or too severe given he circumstances of this case. I am further reminded that the court should adopt a humane approach when considering an appropriate sentence.

[14]The crime committed by the accused led to the death of her domestic partner. It is aggravating that the deceased who was a healthy 71 year old father, lost his life. Domestic violence has become common place and the courts have imposed stiffer sentences in an attempt to deter others from resolving domestic disputes using violence. It somehow seems senseless that the deceased lost his life over what started our to be a quarrel over money. In this jurisdiction fatal assault with sticks are prevalent. General deterrence for crimes involving domestic assault is called for. I however do not lose sight of the fact that the accused acted after the accused refused to leave and verbally abused her. She has also suffered abuse over a period at the hands of the deceased. This lessens the moral blameworthiness of her actions.

[15]Although I am mindful of her limited eyesight at the time and the persistence of the deceased, I cannot ignore the fact that she struck several blows of such force that she fractured the skull and ribs of the deceased. This is an aggravating factor.

[16]Counsel for the accused referred this court to other decisions. The essential difference between those referred to by counsel and this case is the fact that the accused previously negligently caused the death of a person by using the same weapon. This demonstrates that the accused easily resorts to violence. This offence was committed during the period of suspension and I must conclude that this did not deter the accused from resorting to violence. One would have thought that negligently causing the loss of life of one person would have been enough to deter the accused from negligently causing the death of another person. Having considered this fact and her lack of genuine remorse, I am not persuaded that the accused would be a good candidate for reform in the form of community service or that it would be appropriate to consider personal deterrence as a form of punishment.

[17]The daughter of the deceased felt that a fine would be appropriate. From this I infer that the family has shown compassion given the advanced age of the accused and her personal family circumstances. The advanced age of the accused and her personal circumstances evokes compassion but this should be considered against society’s interest. I am satisfied that the minor children are placed with relatives who would be able to provide them with the necessary care. I am also of the view that the prison authorities would be able to provide the accused with medical care if required.

[18]The court ought to protect the interest of society and should be consistent in its response when sentencing offenders who resort to violence a means to resolve domestic disputes. There are facts which mitigate the moral blameworthiness of the accused but the weight of the aggravating factors compels this court to consider safeguarding the interests of society. In this case the nature of the crime and the interest of society outweigh the personal circumstances of the accused.

[19]It is trite that in cases of culpable homicide where the death is caused by assault that the courts generally impose harsher sentences. In S v Bohitile , supra the court imposed a sentence of 8 years’ imprisonment of which 2 years imprisonment was suspended for a first offender who perpetrated a terrible assault on his domestic partner which resulted in her death. The accused herein is not a first offender and the assault perpetrated was severe. I am however mindful of the fact that the accused herein was also a victim of domestic abuse, and was vulnerable at the time of the commission of the offence in that she had limited vision. I further also take into consideration the period the accused spent in custody after her arrest, her reduced restraint as a result of the alcohol intake, her advanced age and her personal circumstances.

[20]Having considered the facts and circumstances of the case I am of the view that custodial sentence would be the only appropriate sentence.

[21]In the result the following order is made:

The accused is sentenced to 4 years’ imprisonment.

------

MA Tommasi

Judge

APPEARANCES

The State : Office of the Prosecutor-General

Represented by MrMatota.

ACCUSED 1:MR J VAN VUUREN

Kruger van Vuuren & Co.

ACCUSED 2MS INONGE MAINGA

Inonge Mainga Attorneys

ACCUSED 3MR J NCUBE

Instructed by: Government Attorneys

ACCUSED 4MS F KISHI

Dr Weder, KautaHoveka Inc.