2
REPUBLIC OF NAMIBIA
NOT REPORTABLE
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
APPLICATION FOR LEAVE TO APPEAL
JUDGMENT
CASE NO: CC 13/2013
In the matter between:
GABRIEL JONA PETRUS APPLICANT
vs
THE STATE RESPONDENT
Neutral citation: Petrus v State (CC 13/2013) [2014] NAHCMD 234 (05 August 2014)
Coram: SIBOLEKA J
Heard on: 16 July 2014
Delivered on: 05 August 2014
Flynote: This court sentenced the applicant to 45 years for strangulating his ex-girlfriend to death in her room and to 5 years in prison for locking the deceased’s roommate Erika Embashu inside the wardrobe. He says the sentence is severe, hence the application for leave to appeal.
Summary: During the night on the day of the incident the applicant intruded his ex-girlfriend’s room and strangulated her with a tie until she died. Her roommate Erika Embashu was locked inside the wardrobe, and was held there until the applicant felt he was about to leave the scene. Before he left the scene he touched and called the deceased’s name more than once, there was no reply because she was already dead. The applicant told Erika Embashu he was just making sure the deceased was indeed dead because he did not want to leave her alive on this earth.
Held: The dominant criterion in deciding an application for leave to appeal is whether or not the applicant has reasonable prospects of success on appeal.
Held: In the particular circumstances of this case the court is not satisfied that the applicant has reasonable prospects of success on appeal.
Held: The application for leave to appeal is dismissed.
ORDER
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The application for leave to appeal is dismissed.
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JUDGMENT
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SIBOLEKA J
[1] At the hearing of this application for leave to appeal the applicant was represented by Mr Sisa Namandje and Ms Ndlovu appeared for the respondent. This court appreciates the counsel’s valuable arguments in this regard.
[2] The grounds of appeal against sentence are as follows:
“1. The sentence of 45 years imprisonment in respect of murder is shockingly
inappropriate and startlingly heavier given the circumstances of the case in
particular but not limited to, the age of the applicant and the fact that he
pleaded guilty and expressed remorse etc.
2. The sentence of 45 years imprisonment was imposed after the court gave
undue weight to the seriousness of the offence and repributal urges of the
community at the expense of reformative sentencing consideration and other
factors in favour of the applicant.
3. The sentence of 45 years imprisonment in respect of murder is inconsistent
with other sentences in Namibia on more or less the same facts.
4. The court erred in not, for the purposes of sentencing, taking the murder and
kidnapping charge as one for the purposes of sentencing.
5. The court erred in not, in the circumstances of matters, ordering that the
sentence in respect of kidnapping should run concurrently with the sentence
of murder given the circumstances of the matter.
6. The two sentences in respect of murder and kidnapping taken together are
wholly unfair, heavier and completely unwarranted in the circumstances.”
[3] Mr Namandje referred to several cases in support of the application and among them are:
[3.1] S v Mhlakaza and Another[1] In this case the two appellants were part of a gang of five armed robbers who targeted a small charge office where an automatic firearm and ammunition was kept. A police officer on duty was shot and some members of the public were wounded. The attack ended when nearby security guards responded to the shooting. The appellants were later arrested, tried, and sentenced to 47 and 38 years imprisonment: for murder, three counts of attempted murder; attempted robbery; possession of firearms and ammunition; possession of a machine gun. The Appeal Court was requested to decide on the following:
· Whether those sentences which were cumulatively in excess of the normal 25 years imposed in practice should stand, and;
· Whether there were exceptional circumstances warranting the imposition of such sentences or not. My own underlining.
Despite the fact that all the crimes the appellants were facing emanated from a single armed robbery attack, and notwithstanding the existence of the recognized maximum sentence of 25 years, the Appeal Court still saw it fit and sent the appellants to an effective goal term of 38 years each in prison.
[3.2] The Mhlakaza case is distinguishable to the matter at hand in the following ways:
· The matter before court relates to the increasing killing of defenseless women which in this court view has gone out of control as alluded to infra by the number of pending cases where women were killed by their male partners.
· On the other hand the Mhlakaza matter does not relate to an increase in armed robbery crimes.
[3.3] It is very clear in the armed robbery case that the Appeal Court is supportive of this court’s view that the sentencing discretion depends on the circumstances of a particular case and not on the existence of a specific sentence that could be imposed for similar crimes.
[3.4] Here is what the Appeal Court in the Mhlakaza case had to say about the notion of the adherence to the maximum sentences of 25 years which was normally imposed in practice on murder cases:
“The Appeal Court held that this notion ought to be guarded against as it imposed an unacceptable restriction on the presiding officer’s discretion to impose a reasonable and fair sentence. The Court held that since the scrapping of the death penalty, sentences of imprisonment in cases where the death penalty would have been imposed before the advent of the new Constitution, would inevitably be long and such sentences could become more common. Lengthier sentences could well be justified by the heightened incident of violence. But whether or not sentences would fall within the bounds of what would be considered proper or appropriate would inevitably depend on the facts of each case.”
[3.5] Mr Namandje also referred to the case of S v Jerry Wilson Munyama[2] which the Supreme Court stated that the principle of consistency in sentencing has gained wide acceptance and that it has the advantage of promoting legal certainty. This court is aware of that principle and has no problem with it. However, the Munyama matter relates to sentencing for similar crimes involving offenders with roughly comparable personal circumstances. This is at variance from the matter at hand wherein the circumstances in which the applicant terminated the deceased’s life, in this court’s view clearly shows that by virtue of being an ex-boyfriend of the deceased he was entitled to terminate her life and then make sure he has indeed done so to the deceased; she was actually dead, so that he (the applicant) does not leave her alive on this earth.
[3.6] Another matter referred to was S v Shaduka[3]. It is my considered view that the two cases are distinguishable from each other. In the matter before court the applicant in full view of Erika Embashu touched the deceased, called her name more than once, there was no reply because she was already dead. The applicant then removed the tie from the deceased’s neck and told Erika Embashu that he was just making sure that she was indeed dead because he did not want to leave her alive on this earth. The applicant clearly spelt out his actual intention to kill the deceased. In the Shaduka matter the Supreme Court adopted the Mlambo[4] dictum which provides that when an accused causes death by way of an unlawful assault, being the only person who knows what happened he gives a false explanation, the court can make an inference that he has acted with the intention to kill.
Another case referred to by Mr Namandje is S v Sylvia Condentia Van Wyk[5] wherein reference was made to sentences imposed by different Courts on accused convicted for similar crimes committed under similar circumstances. My own underlining.
Mr Namandje concluded by submitting that in his view the application has reasonable prospects of success in that the Supreme Court may impose a different and yet a lenient sentence than the one imposed by this court. My own underlining.
[4] Ms Ndlovu, counsel for the respondent submitted that she does not find any irregularities or misdirection in the sentence of 45 years imposed on the applicant for murder. According to her it is a fact that the court can take judicial notice of that there has even been a call for national prayers and workshops on gender based violence. She stated that it was correct for the court to take into account the fact that society has called for a halt on violence committed on defenseless women. According to her, sentences that take the interest of society into account are justified.
[4.1] In support of her submission she referred to various cases, among them:
[4.2] In S v Bohitile[6] the appellant was convicted of culpable homicide for assaulting the deceased with whom he was involved in an intimate relationship. In determining an appropriate sentence, the court stated that the basic criterion to which the court must have regard to, is the degree of culpability or blameworthiness exhibited by the accused in committing the crime. My own underlining.
[4.3] Another case referred to was S v Both[7] wherein the court stated that murder committed in a domestic relationship makes the offence aggravating.
[4.4] The prosecution counsel stated that in the Shaduka matter to which Mr Namandje referred to, the Supreme Court raised a concern that despite the promulgation and enforcement of the Combating of Domestic Violence Act 4 of 2003, crimes emanating from a domestic setting – remain unabated. It was noted that these crimes were still being continuously committed. The Supreme Court went further and stated that punishment meted out by the courts to address such crimes should reflect the seriousness with which those crimes are being regarded. My own underlining. This counsel concluded by stating that the sentence of 45 years is not startlingly in appropriate, neither does it induce a sense of shock. She submitted that the application for leave to appeal should be dismissed.
[5] In an application of this nature the applicant must satisfy the court and that he has a reasonable prospect of success on appeal. The mere possibility that another court might come to a different conclusion is not sufficient to justify the grant of leave to appeal.
[6] I have indicated in my judgment for sentence that the community’s loud and clear plea for a halt in the killings of defenseless women appears to have increased instead of abating. The following are murder cases allocated and pending before this court alone. All these matters relate to men who have killed their female partners in a domestic/romantic setting.
CASE NO ACCUSED CHARGE
CC 38/2009 JULIUS DAUSAB MURDER
CC 09/2012 FANIE BASSON MURDER
CC 19/2012 PETRUS K. F. FREDERICK MURDER
CC 28/2012 MELVIN RAYMOND HANSE MURDER
CC 08/2013 CHARLES MICHAEL SWARTZ MURDER
CC 16/2013 OTTO ANGULA MURDER
CC 23/2013 ABRAHAM JANTZE MURDER
[7] The facts of the matter before this court are as follows:
[7.1] The applicant and the deceased were involved in a romantic relationship which came to an end before the incident. The deceased and Erika Embashu shared a room. On the day of the incident they looked for the deceased’s room keys but they did not find them.
[7.2] In the middle of the night while they were peacefully asleep Erika heard the deceased screaming and calling her name asking for help. She woke up and switched the light on and saw that the applicant has intruded the room and was already busy attacking, holding the deceased on the ground (floor inside the room). Erika went to open the door to go outside and ask for help but could not open because the applicant locked it and removed the key. The applicant proceeded to lock Erika inside the wardrobe and refused to open even when Erika asked to visit the toilet.
[7.3] While inside the wardrobe Erika heard what sounded to her like something hitting against the wall. When the applicant eventually unlocked the wardrobe Erika saw the deceased laying on the floor covered with a blanket. The applicant started asking Erika to whom some of the cell phone numbers appearing on the deceased’s cell phone belonged. Before he left the scene the applicant touched the deceased, called her name more than once, but there was no answer because she was already dead. The applicant told Erika he was doing that to make sure that she was indeed dead, because he did not want to leave her alive on this earth.
[7.4] The applicant then removed the tie from the deceased’s neck, asked Erika to open the gate for him and he left. The applicant told the court he strangled the deceased to death because she said ‘NO’ to the continuation of their romantic relationship. My own underlining. In my view the above facts clearly reveal a very serious breakdown of law and order; a total disregard of other peoples’ rights to privacy, peaceful sleep, and in particular their precious lives. The applicant expressly exhibited not only his desire to murder the deceased, but his actual intention of making sure she was dead.