Namibia: Murder Appeal Sees Sentence Increased

11 October 2019

Windhoek — Windhoek High Court Judge Dinnah Usiku in agreement with Acting Judge Kobus Miller on Tuesday set aside a sentence of eight years meted out for a conviction of murder with direct intent and substituted it with a sentence of 18 years.

This came after the prosecutor general appealed the sentence imposed on Zechnor Johr by the Rehoboth Regional Court in August 2017.

Advocate Marthino Olivier, who handled the appeal on behalf of the state, called the eight-year sentence "shockingly inappropriate" and the two appeal judges agreed with him.

He further said the magistrate misdirected himself when he imposed a sentence that is so lenient that it induces a sense of shock, having over-emphasised the personal circumstances of the accused and over-emphasising the fact that the trial had to start afresh after 12 years while the accused was on bail.

He argued the magistrate under-emphasised the fact the murder was committed with a direct intent to kill and that there was no evidence that the moral blameworthiness of the accused was reduced in any way.

Olivier further stated that the brutality of the attack and the lack of remorse on the part of Johr, the seriousness of the offence and its prevalence as well as the interest of society were also not considered by the magistrate.

According to Judge Usiku, the sentence of eight years under the circumstances of this case was totally out of proportion to the gravity or magnitude of the offence.

"The deceased was not only stabbed once, but twice," she said and continued: "The respondent (Johr) had pursued the deceased after he had disarmed him."

Judge Usiku further said that the role of the court in criminal matters is to ensure that justice is not only done, but be seen to be done.

"Cases of murder with direct intent have reached an alarming proportion in our society whereby violence has now become the order of the day. Courts are thus expected to play the role in curbing this evil," she said and quoted former judge president Johan Strydom when he said: "Whether we want to believe it or not we are involved in a war against crime which at present shows no sign of abating. The situation calls for exceptional measures and in this process courts play an important role."

According to Judge Usiku, since violent conduct is no longer tolerated, heavier sentences must be imposed, thus deterrence and the retribution aims of punishment should be preferred over those of prevention and rehabilitation which play a subordinate role. "Taking all the circumstances of this case into account, it seems to me that the sentence imposed is therefore disturbingly lenient and this court cannot allow it to stand," the judge said and continued: "It may well be said that the evil of the respondent's deed is so shocking, so clamant for extreme retribution that society would demand the respondent to be removed from the community for a longer period." The sentence was antedated to August 7, 2018 meaning the time spent in custody will be taken into account.

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