CASE NO. CC 47/2007
IN THE HIGH COURT OF NAMIBIA
In the matter between:
THE STATE
versus
BONAFATIUS KONSTANTINUS
CORAM:
MANYARARA, A.J.
Heard on:
2008.05.08; 2008.05.12 - 13
Delivered on:
2008.05.22
______________________________________________________________________________
SENTENCE JUDGMENT
MANYARARA, A.J.:
[1]
The accused has been convicted on his pleas of guilty
to –
Firstly, murder with direct intention;
Secondly, robbery with aggravating circumstances;
Thirdly, theft;
Fourthly, possession of a shotgun without a licence; and
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Fifthly, unlawful possession of ammunition.
[2]
He was also charged with attempted murder of Heinrich Tangi Tshafa, the
deceased’s three year old son, but tendered a plea of guilty of assault with intent to do
GBH. The prosecution accepted the plea and the accused was duly convicted thereon.
[3]
The accused made certain admissions, which were recorded i.t.o. section 220 of
the C P Act and the brief facts set out by the statement are as follows.
[4]
The accused was an employee of a security company based in Oshakati. On 1
March 2007 at Oshakati he stole from his employer a shotgun and five rounds of
ammunition of which he was in possession as an employee of the company and
required to return after his shift but he failed to do so and kept the shotgun and
ammunition with intention to use them to commit robbery. On 2 March 2007 in the
Oshakati district he waved down a vehicle driven by the deceased, Amukwaya
Wilhemina Nangula, an adult female. She stopped, believing that he required
assistance. Instead, the accused pointed the shotgun at her and ordered her to get out
of the vehicle. When she remonstrated with him, he pulled her out and shot her once
in the chest and she died of the gunshot. The deceased’s four year old son riding with
her started crying and the accused tossed the little boy out of the vehicle onto the side
of the deceased’s body. The accused then drove away in the vehicle containing various
items of the deceased’s property listed on the indictment. He kept the vehicle for about
3 days using it as a taxi until he was stopped and arrested by the police.
[5]
Mr Hengali, representing the accused, made several submissions in mitigation
of sentence, which may be summarised as follows:
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[6]
The accused was born in 1981 and has one child aged 5 years; he has a Grade
9 standard of education and, over the years, he has been employed as a taxi driver
and bar tender in the Oshakati district and has been the sole provider for his young
child;
he is a changed person and has been studying the Bible while in prison
awaiting his trial and has already spent 15 months in custody; he pleaded guilty and
cooperated with the police in their investigation; he regrets his actions and prays for
forgiveness; finally, the accused is a relatively young person and, if given the chance,
he could still make some contribution to his family and society in the years ahead;
therefore, concluded Mr. Hengali, the sentence passed on the accused should not be
unreasonably onerous and he suggested that a sentence of not more than 20 years
imp for the murder, with the sentence passed on count 3 to run concurrently
therewith, and suspending the sentences on the rest of the counts, would sufficiently
emphasize the retributive and deterrent requirements of sentence and provide for the
possibility of rehabilitation of the accused.
[7]
Before addressing in aggravation of sentence, Miss Barry for the prosecution
called the deceased’s widower, Tshafa, to testify on the loss, which the family has
suffered by her murder.
[8]
Tshafa told the court that he is aged 38 years and employed as a schoolteacher.
The deceased was aged 37 years, also employed as a teacher and in the final year of a
distance learning course for a Bachelor’s degree in education. He is also engaged in
private studies with which the deceased was helping him. The deceased was the
chairperson of a Christian prayer group and she played a prominent role in the affairs
of the community, taking in street children and motivating them to study. She was an
equal breadwinner with him and she has left behind their 4 sons aged 20, 14 and 8
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years plus the 4-year boy who was present when she was murdered (who has been
traumatized thereby) and her murder had robbed the children and himself of a loving
and caring mother and wife.
[9]
Mr. Hengali began to cross examine Tshafa but the cross examination related to
the salary which the deceased earned as a schoolteacher and whether any pension
and insurance benefits have been paid following her death. I pointed out to him that,
in my view, the evidence he sought to elicit was irrelevant to the question of mitigation
and I believe that Mr. Hengali accepted the point.
[10]
The submissions made by Miss Barry of the aggaravating factors of this case
may be summarized as follows:
[11]
She described the deceased’s murder as “most barbaric, callous, cruel,
horrendous and cold blooded” and that the accused also exhibited arrogance by
appropriating the deceased’s vehicle, a valuable Toyota bakkie, and using the vehicle
as a taxi until he was arrested by the police. His expression of remorse was hollow
because it came after the police arrested him about three days after the commission of
the crimes. Therefore, the mitigatory circumstances of the case are far outweighed by
the aggravating factors.
[12]
I am inclined to agree with Miss Barry that expression of remorse came rather
late because his warning statement gave the following harrowing account of how he
murdered the deceased:
“When the lady stop her vehicle, I come behind her on the right side of the driver’s
door. I just said to her, ‘Meme, please ma’am, help me to come out.’ That time I
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pointed her with the shotgun. The lady ask me why she should climb off. I just
said again she must get out. She said to me I wasting her time she want to go.
That time I pointed her twice and I point her for the third time and she was still in
the vehicle. I open the driver’s door with my left hand while my right hand having
the shotgun point to the lady. She began screaming, that time still switch on I
open her door and I shot the lady with my shotgun…in her stomach - one. I pull
her out and she fall down behind my legs. She fall down on her ribs side. I
thrown my shotgun on the bakkie of the vehicle. I pull out the kid while he was
screaming saying “Maa Maa”……and throw it to the ground on the side where
the mother fall down.”
[13]
Frankly, I find that statement to be blood curdling and devoid of remorse.
[14]
In my view, S v Kondja and Two Others, CASE NO CC 04/2006 where the first
accused was sentenced to 30 years imp for a similar crime is directly in point. To my
mind, the present crime is equal to and probably more heinous than the murder
committed in Kondja, particularly because it was witnessed by the deceased’s very
young child, who was severely traumatized thereby. To add insult to injury, the
accused tossed the little boy onto his mother’s corpse like garbage. The value of the
stolen property is also much greater than that of Kondja’s victim, as it included a
valuable motor vehicle and numerous other items of personal and other property listed
on the indictment. The crime was well planned when the accused stole his employer’s
shotgun and ammunition with a view to commit robbery. The abhorrence of the courts
and society of violence against defenceless women, especially when the violence is
perpetrated with the callous cruelty exhibited by the accused in this case, is well
documented and need not be repeated. The same goes for the robbery with aggravating
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circumstances committed when the accused robbed the deceased of her vehicle and
other property.
[15]
The accused also has a very recent conviction of using a motor vehicle without
the owner’s consent for which he was sentenced to a wholly suspended sentence of a
fine of N$300 or 3 months imp. The significance of the conviction is that it shows the
accused’s addiction to motor cars and his contempt of the law and of human life and
other people’s property, which must now be nipped in the bud. Accordingly, I believe
that a proportionately more severe sentence than Kondja’s meets the justice of the
case.
[16]
In the result, the accused is sentenced as follows:
Count 1 – murder with direct intention – 35 years imp
Count 2 – assault w/I to do GBH – 5 years imp
Count 3 – robbery with aggravating circumstances – 8 years imp
Count 4 – theft – 2 years imp
Count 5 – possession of a firearm without a licence, and Count 6 unlawful
possession of ammunition, taken together – 5 years imp
The sentences will run consecutively.
Order:
1.
That the shortgun and ammunition shall be handed to Phillip Bauleth Kakwaya
who is also the owner of 901 Security Force and Debt Collectors.
2.
That the accused is prohibited from possessing a firearm for the rest of his
natural life.
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__________________
MANYARARA, AJ
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ON BEHALF OF THE STATE
Instructed by:
ON BEHALF OF DEFENCE
Instructed by:
Ms Barry
Office of the Prosecutor-General
Mr Hengari
Directorate of Legal Aid