6 years added to baby murder jail term

THE Supreme Court this week added another six years to a 12-year prison term that a former Otjiwarongo resident received two and a half years ago for a rampage of domestic violence that he perpetrated during a single night in September 2000.

The sentence that the then 39-year-old Johny Hoaeb received in the High Court in February 2002 – effectively a jail term of 12 years – was “startlingly inappropriate”, thus warranting an intervention from Namibia’s highest court. When he originally sentenced Hoaeb, the then judge President Pio Teek ordered that three of the jail terms that he was imposing had to run together with a twelve-year term, which he had handed to Hoaeb on a count of murder.It was a nine-month-old son of Hoaeb, Johny Gaoseb, that was the victim of that crime.He died from a head injury after his father had thrown him out of the house where they were living in Orwetoveni at Otjiwarongo on the evening of September 9 2000.During the sentencing, the then Judge President explained that it was because of his concern over the cumulative effect of the jail terms that he was imposing on each of the counts that he had convicted Hoaeb on that he had decided to order that three of these terms had to run concurrently with the term for the murder of baby Johny Gaoseb.In the Supreme Court, Acting Chief Justice Johan Strydom and Acting Judges of Appeal Bryan O’Linn and Simpson Mtambanengwe did not agree with that sentiment, though.In the court’s judgement that upheld the State’s appeal against the High Court’s sentence, the Acting Chief Justice pointed out that Hoaeb had been convicted of three serious crimes: not just murder, but also rape and assault with intent to do grievous bodily harm.The rape was committed in the presence of Gaoseb’s mother, as she lay bleeding from an assault at the hands of Hoaeb.At that stage of that night of violence Hoaeb had already attacked the child‚s mother – she also still had a relationship with Hoaeb – with a pick handle, a piece of wood and a spear, and had also already inflicted a fatal injury on the baby by hurling him from the house.Although the High Court had found that the murder was committed without a direct intention to kill, the facts showed that it was a borderline case of murder with a direct intention to kill, according to Acting Chief Justice Strydom.He found that to throw a baby for a distance through the air, for it to fall to the ground without any support, carries with it such a high incidence of serious and fatal injury that a finding that Hoaeb had a direct intention to kill may have been the result if there had been clearer evidence on how the child had been thrown.He added that in all the circumstances Hoaeb had to bear a high degree of moral blameworthiness for murdering a helpless infant who was under his care and protection.By ordering that all the other terms imposed on Hoaeb had to run concurrently with the term for the murder, he was left with a sentence that was “glaringly inappropriate in all the circumstances”, the Acting Chief Justice decided, with the two Acting Judges of Appeal concurring.They ordered that only four years of the ten-year term that the High Court had imposed for the rape that followed on the deadly injuring of the baby would be running with the murder term.The result is that, instead of serving 12 years imprisonment for his crimes, Hoaeb is facing a term of 18 years, running from February 15 2002, which was the date of his original sentencing.When he originally sentenced Hoaeb, the then judge President Pio Teek ordered that three of the jail terms that he was imposing had to run together with a twelve-year term, which he had handed to Hoaeb on a count of murder.It was a nine-month-old son of Hoaeb, Johny Gaoseb, that was the victim of that crime.He died from a head injury after his father had thrown him out of the house where they were living in Orwetoveni at Otjiwarongo on the evening of September 9 2000.During the sentencing, the then Judge President explained that it was because of his concern over the cumulative effect of the jail terms that he was imposing on each of the counts that he had convicted Hoaeb on that he had decided to order that three of these terms had to run concurrently with the term for the murder of baby Johny Gaoseb.In the Supreme Court, Acting Chief Justice Johan Strydom and Acting Judges of Appeal Bryan O’Linn and Simpson Mtambanengwe did not agree with that sentiment, though.In the court’s judgement that upheld the State’s appeal against the High Court’s sentence, the Acting Chief Justice pointed out that Hoaeb had been convicted of three serious crimes: not just murder, but also rape and assault with intent to do grievous bodily harm.The rape was committed in the presence of Gaoseb’s mother, as she lay bleeding from an assault at the hands of Hoaeb.At that stage of that night of violence Hoaeb had already attacked the child‚s mother – she also still had a relationship with Hoaeb – with a pick handle, a piece of wood and a spear, and had also already inflicted a fatal injury on the baby by hurling him from the house.Although the High Court had found that the murder was committed without a direct intention to kill, the facts showed that it was a borderline case of murder with a direct intention to kill, according to Acting Chief Justice Strydom.He found that to throw a baby for a distance through the air, for it to fall to the ground without any support, carries with it such a high incidence of serious and fatal injury that a finding that Hoaeb had a direct intention to kill may have been the result if there had been clearer evidence on how the child had been thrown.He added that in all the circumstances Hoaeb had to bear a high degree of moral blameworthiness for murdering a helpless infant who was under his care and protection.By ordering that all the other terms imposed on Hoaeb had to run concurrently with the term for the murder, he was left with a sentence that was “glaringly inappropriate in all the circumstances”, the Acting Chief Justice decided, with the two Acting Judges of Appeal concurring.They ordered that only four years of the ten-year term that the High Court had imposed for the rape that followed on the deadly injuring of the baby would be running with the murder term.The result is that, instead of serving 12 years imprisonment for his crimes, Hoaeb is facing a term of 18 years, running from February 15 2002, which was the date of his original sentencing.