WINDHOEK – The three men convicted of the murder and robbery of a taxi driver and dumping his body in the bushes near Rocky Crest want to appeal both their convictions and sentences in the Windhoek Supreme Court.
Judge Naomi Shivute convicted Jackie Jackson, Kaveto Pontianus Kwandu and Isaskar Nau-Gaweseb on charges of murder, robbery with aggravating circumstances and defeating or obstructing the course of justice over the slaying of taxi driver Alfons Rijatua (42) at the Hage Geingob Stadium during the period 18 to 19 April 2010.
They were sentenced to a combined 108 years in jail.
The judge sentenced Jackson and Kwandu to 28 years each on the murder charge, Nau-Gaweseb to 30 years, all three 15 years on the robbery charge of which five years are to run concurrently with the murder sentence and two years each for defeating or obstructing the course of justice.
All three is putting the blame on the other with Jackson and Nau-Gaweseb saying it’s Kwandu who delivered the fatal shot and Kwandu claiming he was in the toilet when the fatal shot was fired. Rijatua died from a shotgun blast to the chest at close range.
Jackson’s state funded lawyer, Trevor Brockerhoff, argued Judge Shivute misdirected herself when she found that the State proved the counts against his client beyond a reasonable doubt.
He argued a different court may come to a different conclusion and as such his client must be granted leave to appeal.
On the sentence imposed he argued the court overemphasised the seriousness of the offences to the detriment of his client.
He called the sentence imposed “shockingly inappropriate” and said no reasonable court would have imposed such an excessive term of imprisonment.
Mese Tjituri who represents Kwandu argued that the court misdirected itself when it found that the principle of common purpose was applicable in the circumstances.
He said it was not proven beyond a reasonable doubt that his client was in agreement with the other accused and that his defence that he allowed Jackson and Nau-Gaweseb into the stadium to fetch Jackson’s jacket and that he was in the toilet when he heard a gunshot should have been accepted.
He said there was no evidence that linked Kwandu to the killing or the robbery and that he should have been acquitted.
He too argued there are good and reasonable prospects that a differently constituted court might come to a different conclusion.
Bronell Uirab who represented Nau-Gaweseb argued that his client was merely at the wrong place at the wrong time.
According to Uirab, his client accompanied Jackson to the stadium with the aim of stealing liquor.
At no stage was he in agreement with either of his co-accused to murder or rob someone, Uirab emphasised. He said it was not proven nor testified that Nau-Gaweseb was the one who pulled the trigger.
He said the doctrine of common purpose was not proven beyond a reasonable doubt and that his client should have been acquitted on that score alone.
State Advocate Ethel Ndlovu told the court there was no misdirection on its part. She said the court was correct when it held that the three appellants acted in concert when they killed and robbed the deceased.
This was proven by the fact they participated in disposing of the body and sharing the spoils of their crime, she said.
She said the court was correct to find the killing of the deceased was not an accident as he was shot at close range. She said the applicants immediately after killing the deceased disposed of his body and property.
On the sentences imposed she said the trial court has discretion on the sentences to impose, albeit within reason.
In the present instance the trial court did not misdirect itself and the sentences imposed are in line with similar cases, she said.
According to Ndlovu, another court may only interfere with a sentence imposed if it is so severe or so lenient it induces a sense of shock.
She said in this instance the applicants’ moral blameworthiness far outweighs any mitigating factors that may exist.
According to Ndlovu, the applicants dismally failed to show there are any reasonable prospects of success on appeal against either the conviction or the sentence and prayed that the application be dismissed.