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REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
Case No: CC 25/2012
THE STATE
versus
WILLEM KAWULEFELWA VALOMBOLA
TOIVO KASHIPOLO
FILLIPUS SHISHIVENI NOMONGULA
Neutral citation:S v Valombola(CC 25-2015) [2015] NAHCMD 206(4 September 2015)
Coram:SHIVUTE, J
Heard:9 July; 6 August 2015
Delivered:4 September 2015
Flynote:Criminal Procedure – Sentence – Previous Convictions – Aggravating factor – Court cannot turn blind eye on it – Period spent in custody awaiting trial – Weighs in favour of accused – Offences committed closely connected in time – Several offences were committed – Accused to be punished appropriately for each one of them
SENTENCE
Count 1: Murder with direct intent:
Accused 1: 30 years’ imprisonment.
Accused 2 – 3: 25 years’ imprisonment each.
Count 2: Robbery with aggravating circumstances.
Accused 1 – 2: 15 years’ imprisonment each.
Accused 3:17 years’ imprisonment
Five (5) years of the sentence imposed on each accused on count 2 is to run concurrently with the sentence imposed on count 1.
Count 3:Attempted murder
Accused 1 – 3: 10 years’ imprisonment each.
Count 4:Attempted murder
Accused 1 – 3: 10 years’ imprisonment each
Count 5:Possession of a firearm without a licence contravening s 2 of Act 7 of 1996.
Accused 1 – 3: 18 months’ imprisonment each. 9 months on this count to run concurrently with the sentence imposed on count 4.
Furthermore the following orders are made:
(a)In terms of s 34 (1) (b) Act 51 of 1977 the firearm with serial No.: 0127 to be returned to its lawful owner Ms Martha Diergaardt.
(b)The firearm with serial No.: B953093 to be returned to its lawful owner H.A.M.S Security.
(c)The firearm with serial No.: B781 to be forfeited to the State in terms of s 35 (1) (a) Act 51 of 1977.
(d)The motor vehicle namely a BMW used in the commission of the offences with a fake registration No.: N61556W to be forfeited to the State.
(e)In terms of s 10 (7) and (8) Act 7 of 1996 each accused is declared to be unfit to possess a firearm for the period of two years from the time each accused completes his sentence.
SENTENCE
SHIVUTE J:
[1]The accused persons stand convicted on five counts being count 1: murder with direct intent, count 2: robbery with aggravating circumstances, count 3: attempted murder, count 4: attempted murder, and count 5: possession of a firearm without a licence contravening s 2 of The Arms and Ammunition Act 7 of 1996. The accused persons acted in common purpose.
[2]All accused persons testified in mitigation. The following are their personal circumstances:
Accused 1 is a first offender. He was born at Oshandi in Ohangwena Region. He is not married. He has four minor children from different mothers. All of them are school-going. He is responsible for their upkeep. He is also looking after his 82 year old father and his sister. The mother of one of his child is now deceased, and the rest of the mothers are unemployed except one of them. Accused 1 isself-employed as a motor vehicle electrician. Although he is convicted he insisted that he is not guilty.
[3]It was submitted on behalf of accused 1 that he is a first offender and therefore the Court should take this into consideration. It was submitted further that the offences committed are closely connected in time, therefore the Court should consider a concurrent sentence.
[4]Accused 2 is a first offender. He has been in custody for about six years. He is single with three minor children. He used to take care of the children before he was incarcerated. Two of his children are in the Northern part of the country while one lives in Windhoek. The incarceration has caused suffering to his children. Apart from his children he also supports his mother and his siblings. The accused has two businesses but one of them closed down after his arrest. His sister is managing the remaining business in Windhoek. Although the accused was convicted he had asked his counsel to send the case for ‘review’ because he is of the opinion that he was wrongly convicted.
[5]It was argued on behalf of accused 2 that he is a first offender, who is 36 years old and he has been in custody for a long time and, therefore, the Court should consider those factors when imposing sentence. Counsel further submitted that although the offences committed are serious the Court should exercise mercy on accused 2. Itshould impose a sentence that would run concurrently as the offences committed are closely connected in time.
[6]Accused 3 has three previous convictions committed between 1997and 2000 namely: Criminal Trespass, theft from a motor vehicle and housebreaking with intent to steal and theft. He has been incarcerated for about six years awaiting trial. Heis 38 years old. He is single with five minor children from different mothers. Two of this children are residing with their mother in Tsumeb and schooling there. One of the children lives with his mother in Luanda, Angola. The rest of the children are staying with the accused’s mother. Only one of the mother is self-employed,the rest are not working. The accused has one sibling. Before his incarceration he was looking after his children. The accused had a contract of thatching roofs and he was also running a business before his incarceration. Now his business has closed down. The accused insisted that he was convicted of offences which he did not commit.
[7]Counsel for accused 3 urged the Court to consider the period the accused has been in custody awaiting his trial and to exercise mercy on him. He further submitted that the Court should impose a concurrent sentence since the offences committed are closely connected in time.
[8]On the other hand, counsel for the State called the deceased’s daughter who testified that the death of the deceased has left a vacuum in the family. The deceased used to manage H.A.M.S Security Company alone and none of the family members has the necessary expertise to run the business. As a result, the company ceased to do business on its own, and so it merged with another security company. The deceased had between 110 and 120 employees. The family has difficulty to come to terms with the death of her father. Her parents were married for 47 years. The death of her father has left her mother in a devastating state.
[9]Concerning the firearms that were seized by the police, she testified that a firearm with serial No.: B953093 belonged to H.A.M.S Security and the Court should make an order for it to be returned to H.A.M.S Security. With regard to a firearm with serial No.: N0127, this is a personal firearm of Martha Diergaardt and it should be returned to her.
[10]Counsel for the State argued that it is an aggravating factor that the murder was committed with an actual intent. The offences were premeditated and from the facts of the case, there was extensive planning and this is also an aggravating circumstance. These offences were committed out of greed and avarice. The deceased was struck by two bullets. The offences of murder and robbery are prevalent and the sentence to be meted out must act as a deterrent. Counsel further argued that accused 1–2 did not show any remorse except accused 3, but again he did not accept any responsibilities concerning the commission of the offences. When an accused is expressing the desire to have his sentence lessened because the Court must have mercy on him, this on its own is not enough when no remorse has actually been shown. Counsel further argued that the aggravating circumstances of the crimes far outweigh the mitigating circumstances of the accused persons.
[11]Furthermore, the State has applied for the accused persons to be declared to be unfit to possess a firearm in terms of s 10 (6) (a) of the Arms and Ammunition Act 7 of 1996. The State has also applied for a restoration order in terms of s 34 (1) (b) of Act 51 of 1977 for firearms with serial Nos.:0127 to be returned to Martha Diergaardt and B953093 to be returned to H.A.M.S Security Proprietary Limited and for the firearm with serial No.: B781 to be forfeited to the State, and for the forfeiture of the vehicle that was used in the commission of the crimes as a getaway vehicle, with a fake registration No.: N61556W, to the State in terms of s 35 (1) of the Criminal Procedure Act.
[12]The Court has taken into consideration the personal circumstances of the accused persons that they placed before this court when they testified in mitigation. It has also considered the arguments by all counsel and the authorities referred to in connection with sentencing. It is my duty to take into account the factors relevant to sentencing, namely; the crime; the personal circumstances of the accused persons;the interest of society; the seriousness of the crimes and objectives of punishment, as well as the imposition of appropriate punishment for the offences committed. Accused 1 and 2 are first offenders. This weighs in their favour. Accused 3 has three previous convictions, two of which involved dishonesty. This is an aggravating factor. The third accused has no respect for the law. Therefore, the Court cannot turn a blind eye to it, and it must weigh heavily against him. Accused 2 and 3 have been in custody for a long time. This factor should also weigh in their favour.
[13]The deceased was shot twice with a firearm and he died as a result of a gunshot wound to the thorax. He was killed mercilessly in execution style just because of the greediness of the accused persons who wanted to rob him of his hard-earned cash. The family was robbed of a husband, father and grandfather, and his departure has created a vacuum. The offences were premeditated and calculated, and so this calls for a deterrent sentence. All crimes committed are serious and prevalent. The two complainants in the attempted murder counts although were not injured, the windscreens of their vehicles were shattered by bullets. It was by the grace of God that they survived the shooting.
[14]Although all accused persons asked for the Court to exercise mercy on them, they did not show any remorse because all of them said they were convicted for the offences which they did not commit. Although accused 1 – 2 are first offenders, the Court cannot overlook the fact that a precious life was lost. I have also consider the cash involved in the robbery and that it has only been recovered after one of the robbers was pursued.
As this Court pointed out in S v Strauss 1990 NR 71 (head note):
‘The requirement of mercy in imposing an appropriate sentence does not mean that the courts must be too weak or must hesitate to impose a heavy sentence where it is justified by circumstances.’
[15]I have also considered that justice should be donenot only to the offenders, but also to the victims as well.
[16]Although these crimes are closely connected in time, several offences were committed and the accused persons should be punished appropriately for each one of them. A reasonable sentence for murder would have been more than 30 years but because accused 2 and 3 have been held in custody awaiting trial for about six years, a sentence less than 30 years would meet the justice of this case.
[17]In the result I consider the following sentence to be appropriate
Count 1:Murder with direct intent:
Accused 1: 30 years’ imprisonment.
Accused 2 – 3: 25 years’ imprisonment each.
Count 2: Robbery with aggravating circumstances.
Accused 1 – 2: 15 years’ imprisonment each.
Accused 3:17 years’ imprisonment
Five (5) years of the sentence imposed on each accused on count 2 is to run concurrently with the sentence imposed on count 1.
Count 3:Attempted murder
Accused 1 – 3: 10 years’ imprisonment each.
Count 4:Attempted murder
Accused 1 – 3: 10 years’ imprisonment each
Count 5:Possession of a firearm without a licence contravening s 2 of Act 7 of 1996.
Accused 1 – 3: 18 months’ imprisonment each. 9 months on this count to run concurrently with the sentence imposed on count 4.
Furthermore the following orders are made:
(a)In terms of s 34 (1) (b) Act 51 of 1977 the firearm with serial No.: 0127 to be returned to its lawful owner Ms Martha Diergaardt.
(b)The firearm with serial No.: B953093 to be returned to its lawful owner H.A.M.S Security.
(c)The firearm with serial No.: B781 to be forfeited to the State in terms of s 35 (1) (a) Act 51 of 1977.
(d)The motor vehicle namely a BMW used in the commission of the offences with a fake registration No.: N 61556 W to be forfeited to the State.
(e)In terms of s 10 (7) and (8) Act 7 of 1996 each accused is declared to be unfit to possess a firearm for the period of two years from the time each accused completes his sentence.
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N NShivute
Judge
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APPEARANCES
STATE: Ms Ndlovu
Office of the Prosecutor-General
ACCUSED 1: Mr Nambahu
ACCUSED 2: Mr Elago
ACCUSED 3: Mr Karuaihe
All instructed by the Directorate of Legal Aid