CASE NO. CC 67/07
IN THE HIGH COURT OF NAMIBIA
In the matter between:
THE STATE
versus
DOMINIC MWILIMA
CORAM:
MANYARARA, A.J.
Heard on:
2008.04.21; 2008.05.12 – 14; 2008.05.20; 2008.06.02
Delivered on:
2008.06.02
______________________________________________________________________________
SENTENCE
MANYARARA, A.J.:
[1]
Accused has been convicted of Murder with dolus
eventualis and obstructing the Course of Justice.
[2]
Mr Mostert has addressed in mitigation of sentence.
He set out Accused’s
personal circumstances-
that he is aged 46 years with six (6) children aged 3 – 18 years and
served in Nampol for 9 years;
-
that he is presently on suspension from Nampol and will be discharged
from service when sentenced to imprisonment.; and
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-
[3]
that he is remorseful and asks for the Court’s mercy.
Ms Miller submitted in aggravation of sentence-
that murder, though with dolus eventualis is still a serious offence.
-
that accused’s duty was to protect the public and this he did not do
when he shot dead.
-
that the conviction of obstructing the Course of Justice is especially
serious as accused was a Law Enforcement Agent sworn to uphold
justice and the law and this he failed to do. He sent the Police Officers
who came to the investigate the crime on the wrong track.
[4]
I propose to be guided by the dictum of Etienne du Toit AJ in S v Thonga
1993(1) SACR 365, 370e-f cited by Mr Mostert, and apply the dictum as follows:
-
Firstly, the degree of moral blameworthiness attaching to the accused is
great. As Ms Miller submitted, quite correctly in my view, accused was a
Police Officer sworn to protect and not harm the public and he was in
gross dereliction of his duty when he shot dead the deceased who posed
no threat to him whatsoever.
The shooting has the semblance of an
assassination which is impermissible in our society.
-
Secondly, and flowing from the above, the mitigating facts submitted by
Mr Mostert are not out of the ordinary and these are far outweighed by
the aggravating facts.
-
Thirdly, the tariff of sentence for murder is high in what a Judge of this
Court has described as the war against crime and, therefore an accused
who is convicted of murder must expect to receive a severe sentence, so
that society should
see that justice is done.
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-
And lastly, I shall exercise the personal discretion afresh, taking into
account the facts of the case and the personality of the offender set out
above.
[5]
For murder with dolus eventualis, accused is sentenced to 18 years
imprisonment.
And for obstructing the Course of Justice he is sentenced to 5 years imprisonment, of
which 3 years imprisonment shall run concurrently with the sentence passed for
murder.
__________________
MANYARARA, AJ
4
ON BEHALF OF THE STATE
Instructed by:
ON BEHALF OF DEFENCE
Instructed by:
Ms Miller
Office of the Prosecutor-General
Mr Mostert
Directorate of Legal Aid