Court name
High Court Main Division
Case number
HC-MD-CRI-APP-CAL 66 of 2022
Title

S v Jacobs (HC-MD-CRI-APP-CAL 66 of 2022) [2023] NAHCMD 80 (28 February 2023);

Media neutral citation
[2023] NAHCMD 80
Case summary:

Appeal – Sentence – Attempted rape, read with provisions of s 18 of Riotous Assemblies Act 17 of 1956 – Substantial and compelling circumstances – Sentencing court – Incumbent upon a court in every case, before it imposes a mandatory minimum sentence, to assess, upon a consideration of all the circumstances of the particular case, whether the prescribed sentence is indeed proportionate to the particular offense – Court a quo omitted to conduct an enquiry into yardstick of substantial and compelling circumstances – Omission resulted in shockingly inappropriate sentence – Had court a quo conducted such assessment, a different finding would have ensued – Furthermore, the court a quo appear to have left out, or accord weight to some factors, germane to the outcome.– Youthfulness of offender at commission of offence – Offense not rape, but that of attempted rape – Period of pre-trial incarceration – Material irregularities – Appeal court warranted to interfere with the sentence

Headnote and holding:

The appellant was charged for attempted rape of a 6 year old minor girl. Whilst on bail he was arrested for the kidnapping and indecent assault of another minor child. He tendered guilty pleas to all the charges. He was sentenced to 12 months’ imprisonment on each of the kidnapping and indecent assault charges and to 15 years’ imprisonment, on the attempted rape charge. The appeal lies against the sentence of 15 years’ imprisonment on count 3 only. The appeal court found that a misdirection has occurred insofar as there was no enquiry by the court a quo as regards the presence or absence of substantial and compelling circumstances. Furthermore, the court a quo appear to have left out, or accord weight to some factors, germane to the outcome. That culminated in a shockingly inappropriate sentence which warranted interference with the sentence.

 

Held, that it is incumbent upon a court in every case, before it imposes a mandatory minimum sentence, to assess, upon a consideration of all the circumstances of the particular case, whether the prescribed sentence is indeed proportionate to the particular offense.

 

Held further that the court a quo omitted to conduct an enquiry into substantial and compelling circumstances, which resulted in a shockingly inappropriate sentence for the offence of attempted rape.

 

Held further that it is not sufficient to merely mechanically recite factors in mitigation and aggravation, without balancing them against one another and in this case the court a quo failed to accord weight to some factors, germane to the outcome, which constituted further material irregularities.

 

Held further that all factors traditionally considered in sentencing continue to play a role in the sentencing process and that the circumstances of this case, cumulatively considered, justified departure from the mandatory minimum sentence.

 

Held further that the determinative test for substantial and compelling circumstance is if the sentencing court on consideration of the circumstances of the particular case is satisfied that they render the prescribed sentence unjust in that it would be disproportionate to the crime, the criminal and the needs of society, so that an injustice would be done by imposing that sentence, it is entitled to impose a lesser sentence.

 

Held further that the sentence imposed by court a quo was shockingly inappropriate and unjust in the circumstances of this case, which warranted this appeal court to interfere with the sentence.

Coram
Claasen J
January J

                                            REPUBLIC OF NAMIBIA                                

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

                                                                                                                   

                                                  Case no: HC-MD-CRI-APP-CAL-2022/00066

In the matter between:

 

JOHN JACOBS                                                                        APPELLANT

 

and

                                                                                                                   

THE STATE                                                                          RESPONDENT

 

Neutral citation: Jacobs v State (HC-MD-CRI-APP-CAL-2022/00066) [2023] NAHCMD 80 (28 February 2023)

 

Coram:        Claasen J et January J

Heard:          2 December 2022

Delivered:    28 February 2023

 

Flynote:       Appeal – Sentence – Attempted rape, read with provisions of s 18 of Riotous Assemblies Act 17 of 1956 – Substantial and compelling circumstances – Sentencing court – Incumbent upon a court in every case, before it imposes a mandatory minimum sentence, to assess, upon a consideration of all the circumstances of the particular case, whether the prescribed sentence is indeed proportionate to the particular offense – Court a quo omitted to conduct an enquiry into yardstick of substantial and compelling circumstances – Omission resulted in shockingly inappropriate sentence – Had court a quo conducted such assessment, a different finding would have ensued – Furthermore, the court a quo appear to have left out, or accord weight to some factors, germane to the outcome.– Youthfulness of offender at commission of offence – Offense not rape, but that of attempted rape – Period of pre-trial incarceration – Material irregularities – Appeal court warranted to interfere with the sentence.

 

Summary:    The appellant was charged for attempted rape of a 6 year old minor girl. Whilst on bail he was arrested for the kidnapping and indecent assault of another minor child. He tendered guilty pleas to all the charges. He was sentenced to 12 months’ imprisonment on each of the kidnapping and indecent assault charges and to 15 years’ imprisonment, on the attempted rape charge. The appeal lies against the sentence of 15 years’ imprisonment on count 3 only. The appeal court found that a misdirection has occurred insofar as there was no enquiry by the court a quo as regards the presence or absence of substantial and compelling circumstances. Furthermore, the court a quo appear to have left out, or accord weight to some factors, germane to the outcome. That culminated in a shockingly inappropriate sentence which warranted interference with the sentence.

 

Held, that it is incumbent upon a court in every case, before it imposes a mandatory minimum sentence, to assess, upon a consideration of all the circumstances of the particular case, whether the prescribed sentence is indeed proportionate to the particular offense.

 

Held further that the court a quo omitted to conduct an enquiry into substantial and compelling circumstances, which resulted in a shockingly inappropriate sentence for the offence of attempted rape.

 

Held further that it is not sufficient to merely mechanically recite factors in mitigation and aggravation, without balancing them against one another and in this case the court a quo failed to accord weight to some factors, germane to the outcome, which constituted further material irregularities.

 

Held further that all factors traditionally considered in sentencing continue to play a role in the sentencing process and that the circumstances of this case, cumulatively considered, justified departure from the mandatory minimum sentence.

 

Held further that the determinative test for substantial and compelling circumstance is if the sentencing court on consideration of the circumstances of the particular case is satisfied that they render the prescribed sentence unjust in that it would be disproportionate to the crime, the criminal and the needs of society, so that an injustice would be done by imposing that sentence, it is entitled to impose a lesser sentence.

 

Held further that the sentence imposed by court a quo was shockingly inappropriate and unjust in the circumstances of this case, which warranted this appeal court to interfere with the sentence.

___________________________________________________________________

ORDER

___________________________________________________________________

 

1.  The appeal against the sentence on count 3 succeeds.

2.  The sentence on count 3 is set aside and replaced with a sentence of 7 years of imprisonment, to be backdated to the date when the sentence was originally imposed, being 26 November 2021.

___________________________________________________________________

JUDGMENT

___________________________________________________________________

CLAASEN, J (Concurring JANUARY, J)

 

[1]      The appellant was convicted of the crimes of indecent assault, kidnapping and attempted rape in the Regional Court of Mariental. In that proceedings he pleaded guilty and, in a statement prepared in terms of s 112(2) of the Criminal Procedure Act 51 of 1977 (the CPA), he admitted to all the elements of the said charges. Subsequent thereto, on 26 November 2021, he was sentenced to terms of imprisonment of 1 year for the indecent assault charge, 1 year for the kidnapping charge and 15 years for the attempted rape charge. This appeal lies against the sentence imposed to the last charge only.

 

[2]      The appellant was represented by Mr Samaria during the proceedings in the Regional Court. He still represents the appellant in this court and has timeously filed a Notice of Appeal. Ms Shikerete appeared for the respondent and has opposed the appeal.

 

[3]      The qualms raised by the appellant are firstly, that the magistrate failed to consider that substantial and compelling circumstances were present in the matter and secondly that the cumulative effect of the sentence is startlingly inappropriate and induces a sense of shock. Thirdly, that the magistrate overemphasised the deterrent and preventative elements instead of the reformative and rehabilitative aspect of sentencing for this youthful offender.

 

[4]      Counsel for the appellant drew the court’s attention to rape cases and factors that were considered to be substantial and compelling circumstances. In S v Kauima[1] the trial court imposed a sentence of 13 years’ imprisonment on a rape charge wherein the rape victim was a toddler of 5 years old. The accused was 18 years at the time of the commission of the offence. In the Kauima case the court held that the accused’s youthfulness, the accused being a first offender and the pre-trial incarceration period of 2 years and 7 months amounted to substantial and compelling circumstances. In a similar vein, counsel also referred to S v Lukas[2] wherein the victims of the rape charges were aged 13 and 14 years respectively whereas the accused was 20 years at the time of the commission of the offence. The accused was 23 years at the time of sentencing and was the mother of three children. She hailed from a household plagued by poverty and misfortune with parents who were suffering from ill health and would not be able to care for the minor children. The court in Lukas considered the cumulative effect of the aforementioned factors and held that it constituted substantial and compelling circumstances.

 

[5]      Furthermore, he also cited S v Kangulu[3] wherein the State appealed against the decision of a Regional Court Magistrate to have deviated from the mandatory minimum sentence of 15 years in a rape case wherein the victim was 10 years and the perpetrator was 21 years at the relevant time. The fact that the accused spent 21 months in pre-trial incarceration was one of the considerations that played a role in the conclusion that it amounted to substantial and compelling circumstances. At the end of the day the appeal court, after having considered the reasons for the sentence, found that no misdirection in that finding and confirmed the sentence of 12 years’ imprisonment for the rape conviction.

 

[6]      Counsel also expounded on the notion that the cumulative effect of the sentence is totally unreasonable, manifestly excessive and ignored the interests of the appellant. He contended that effectively the appellant has to serve 17 years’ imprisonment and if the period of pre-trial incarceration is added, it left the appellant with almost 21 years’ imprisonment. Therefore, he submitted that the sentence imposed by the trial court induced a sense of shock.

 

[7]      Counsel for the respondent argued to the contrary. She asserted that it is not only factors in mitigation that should be considered in the determination of substantial and compelling circumstances but … a court is required to take into account all the factors relevant to sentencing and that it should refrain from finding that a particular set of facts amount to ‘substantial and compelling circumstances’ just because in its view the prescribed minimum sentence appears to be too harsh or because of some sympathy towards the accused or even an aversion to minimum sentences in general.’[4]

 

[8]      She emphasised the aggravating features in this matter which were that whilst the appellant was on bail in this case he was arrested for a second incident wherein he kidnapped another minor and assaulted that minor indecently; that the minor girls were aged four and six respectively; and that the crying of the minor was a sign of distress, so it cannot be argued that she suffered no harm. In the light of these considerations, she argued that very little weight should be given by the sentencing court to the pre-trial incarceration period, the youthfulness of the appellant and the guilty plea.

 

[9]      As regards the second and third grounds of appeal, she reiterated that at times some elements such as the preventative and deterrent objectives of sentencing are accorded more weight than the others. She cited the sentiments expressed in S v Kaanjuka[5] about the prevalence of sexual offences perpetrated against women and children and that small children are targeted by men who are unable to control their sexual desires. Therefore her view was that a sentence of 19 years was not excessive or shockingly inappropriate but just and fair in the circumstances.

 

[10]    It is trite that the imposition of a sentence is a matter pre-eminently for the discretion of the trial court, provided that the court exercises that discretion judicially. The test as to whether the discretion was used properly is whether the sentence is vitiated by irregularity or misdirection or is disturbingly inappropriate.[6] The test was further spelled out by our Supreme Court in S v Munyama[7] as follows:

 

          ‘[7] The Courts have by judicial precedents expounded on the test above and justified interference on appeal if a trial Court has committed a misdirection of fact or law which by its nature, degree or seriousness is such ‘that it shows directly or inferentially that the Court did not exercise its discretion at all or exercised it improperly or unreasonably’ (see: S v Pillay 1977 (4) SA 531 (A) at 535D-G; if a material irregularity has occurred in the proceedings (S v Tjiho, supra, at 336B); if the sentence is manifestly inappropriate given the gravity of the offence and induces a sense of shock (S v Salzwedel and Others 2000 (1) SA 786 (SCA) at 790D-E); or a patent and disturbing disparity exists between the sentence that was imposed and the sentence that the Court of Appeal would have imposed had it been the Court of first instance (S v Van Wyk, supra, at 447I); S v Petkar 1988 (3) SA 571 (A) at 574C); if there has been an overemphasis of one of the triad of sentencing interests at the expense of another (S v Zinn 1969 (2) SA 537 (A) at 540F-G; and S v Salzwedel and Others, supra at 790F; or if there has been such an excessive devotion to further a particular sentencing objective that others are obscured (S v Maseko 1982 (1) SA 99 (A) at 102F).’

 

[11]    I return to the matter at hand. The offence of attempted rape and the applicable penal provisions came under the magnifying glass in S v Mukena[8] wherein it was stated that s 18(1) of the Riotous Assemblies Act 17 of 1956, (RAA) stipulates that ‘punishment following a conviction under the said section would be to which the accused would have been liable, had the actual offence been committed.’ The penalty provisions for the offence of rape is contained in s 3 of the Combating of Rape Act 8 of 2000 (CORA).

 

[12]    It was common cause between the parties herein that the applicable mandatory minimum sentence was that of 15 years’ imprisonment[9] which could be departed from in the event of a positive finding of substantial and compelling circumstances. Furthermore, both parties cited S v Lopez[10] indicative thereof that they subscribe to the general guidelines set out therein as regards to substantial and compelling circumstances.

 

[13]    The court a quo, in sentencing, referred to the objectives of sentencing and the triad of factors in sentencing. That court listed the personal circumstances of the appellant. These factors included that the appellant was 19 years at the time of the offence and 23 years at the time of sentencing, that the appellant pleaded guilty, that the appellant spent 3 years and 10 months in pre-trial incarceration, that the appellant was illiterate and had no previous convictions, that the appellant suffered a heavy head injury as a child and had been diagnosed with tuberculosis, that the appellant’s mother had passed away in 2009 and that appellant was solely dependent on his father, a pensioner, who also had to maintain two other siblings with meagre financial means.

 

[14]    As regards aggravating circumstances, the court a quo also recapped that the prosecutor emphasised that the scars of sexual offences take years to heal and that the mandatory minimum sentence is applicable by virtue of the RAA. The court a quo furthermore cited Lopez (supra) and S v Malgas[11] and stated that a departure from the prescribed sentence cannot done for flimsy reasons. The court a quo concluded that there was no substantial and compelling circumstances present.

 

[15]    That constitutes the nub of the first ground of the appeal and I proceed to examine the contention in the context of the offense as well as appellant’s personal circumstances and evidential material before the court a quo.

 

[16]    The court a quo cannot be faulted for its decision that a custodial sentence was warranted in all three of the offences which the accused had to answer for. To come back to count 3, this court considers attempted rape to be of serious nature which warrants a custodial sentence. Sexual exploitation of children is unfortunately not unknown in this country. Therefore the courts are duty bound to treat these offences with the disdain it deserves, especially when perpetrators target defenceless children.

 

[17]    The record and submissions before the court a quo bear no indication that physical harm or violence was used by the appellant towards the victim. That was emphasised by counsel for the defence in the appeal court. Counsel for the respondent, neutralised that, by directing this court’s attention to the fact that the victim was crying. I agree with counsel for the respondent that the tears shed by this 6 year old child speaks of the psychological distress that the child suffered at the time.

 

[18] The period of pre-trial incarceration is always a relevant consideration in sentencing. In this case, counsel for the appellant was at pains to point out that his client spent 3 years and 10 months in jail, which the court a quo ignored. Counsel for the respondent argued contrariwise. She blamed the lengthy period on the appellant, who got involved in a second incident, being the subject matter of count 1 and 2. The dates of count 1 and count 2 are 01 January 2018 whereas the date of count 3 is that of 11 July 2017. It thus confirms that the appellant got involved in kidnapping and indecent assault 6 months after he had been on bail for the attempted rape.

 

[19]   Apart from merely mentioning the pre-trial incarceration, the court a quo was silent to as what weight, if any, he placed on it. Clearly the weight to be accorded to pre-trial incarceration will differ from case to case. In perusing the court record it shows that the appellant cannot be blamed for the delay in its entirety. It is true that the police in all likelihood would have required more time to investigate the allegations on count 1 and 2 which occurred after that of count 3.[12] The case appeared in the Regional Court by 22 November 2018[13] at which time counsel from Legal Aid was already on record for the appellant. From that time, almost 3 years elapsed in the trial court before substantive plea proceedings commenced. In answering the question of who is to be blamed, it is for the most part the slow criminal justice system. In addition, it has be remembered that COVID-19 was in our midst, at the time. Consequently, the protracted pre-trial period ought to have carried more weight, in favour of the appellant.

 

[20]    It is evident that the court a quo lost sight that the offence for which it had to pass sentence was not rape itself but that of attempted rape. Thus, the fact of the matter is that rape was not accomplished. In this instance it is the attempt that is punishable. That is what the State charged for and that is what the accused has admitted, namely that he wanted to insert his penis into the anus of the 6 year old victim, but he did not do so. He aborted his intention because the child started crying.

 

[21]    At the same time it appears that court a quo disregarded the principle that juveniles and youthful offenders require a more careful approach in sentencing. On this score, counsel for the respondent pointed to case law that juveniles are not exempted from imprisonment. In the appeal before us, the defence’s argument was not aimed at securing a fine on count 3, but merely at reducing the period of imprisonment.

 

[22]    As alluded to earlier, our law recognizes that youthful offenders lack maturity and that their blameworthiness cannot be measured against that of adults. Thus, in principle, the sentencing of youthful offenders should, to the extent that it is possible, be approached with a preference for rehabilitation. In this regard it was stated in S v Erikson[14] that it is necessary for the court to determine what appropriate form of punishment in the peculiar circumstances of the case would best serve the interests of society, as well as the interests of the juvenile. The interests of society are not best served by disregarding the interests of a youthful offender, for an ill-considered form of punishment might easily result in a person with a distorted or more distorted personality being eventually returned to society. Young offenders should ordinarily be treated differently compared to adults when it comes to sentencing. The reason for this is that youthful offenders, such as the convict are, prima facie, regarded as immature. A youthful person often lacks maturity, insight, discernment and experience and, therefore, acts in a foolish manner more readily than a mature person.[15]

 

[23]    In returning to the pertinent question as to whether the totality of circumstances in this case, justifies departure from the prescribed sentence, I find one of the Lopez principles to be functioning as an overarching determinative test, namely:

 

‘If the sentencing court on consideration of the circumstances of the particular case is satisfied that they render the prescribed sentence unjust in that it would be disproportionate to the crime, the criminal and the needs of society, so that an injustice would be done by imposing that sentence, it is entitled to impose a lesser sentence.’ [16]

 

[24]    In applying this test to the circumstances of the case at hand, I am of the firm conviction that the following relevant considerations, cumulative considered, justifies a departure from the mandatory minimum term of imprisonment:

a.     The youthful age of the appellant at the time of the commission of the offence,

b.     The appellant served almost four years in pre-trial incarceration,

c.     The appellant’s state of having had almost no formal schooling,

d.     The appellant had suffered a heavy brain injury as a child,

e.     The loss of a mother at age 11, which is indicative of a gap in the healthy         development of the value system of the appellant,

f.      The impoverished household where a government pension was the only source of income for the father, the appellant and two other siblings,

g.     The appellant being a first offender,

h.     The appellant tendered a guilty plea,

i.      The serious nature of the offence in question and

j.      That the victim suffered psychological distress as a result of the incident.

 

[25]    In the matter at hand, the exercise of sentencing appears to have been subjected to little or no evaluation of the pertinent factors. It is not sufficient to merely mechanically recite factors in mitigation and aggravation, without balancing them against one another, or at minimum attempt to ascribe weight to some of them whilst others are dismissed or given less prominence for whatever reason(s) the court may find. Some may argue that it cannot be deduced that it was not done, simply because it is not indicated in the reasons for the sentence. However, in this instance the bare finding speak for itself, as there was no assessment that precedes it. It is a necessary exercise especially in a matter such as this, which calls for a determination on substantial and compelling circumstances.

 

[26]    Essentially the court a quo omitted to conduct an enquiry into substantial and compelling circumstances, which resulted in a shockingly inappropriate sentence for the offence of attempted rape. Had the court a quo done so, it would have come to a different finding as to substantial and compelling circumstances. Furthermore, the court a quo appear to have left out, or accord weight to some factors, germane to the outcome. Thus, whilst this court does not condone the attempted deed, nor does it minimise the severity of the offence at hand, but it is clear that material irregularities occurred in the imposition of the sentence. Accordingly, this court is at large to reconsider the sentence imposed in count 3. Ultimately, it is incumbent upon a court in every case, before it imposes a prescribed sentence, to assess, upon a consideration of all the circumstances of the particular case, whether the prescribed sentence is indeed proportionate to the particular offense.

 

[27]    I do not profess to claim that sentencing is an easy task. At least for me, it is not, but that does not stop one from attempting to reach that balance. In the case of substantial and compelling circumstances it is not to be done on trivial grounds, as mandatory minimum sentences mete out a standardised response to severe offences. Notwithstanding, sentences are individualised in our jurisdiction. It is a longstanding and fundamental principle that sentences are tailored according to the nature of the offence, the particular circumstances of the offender and the interests of society. This is in line with the notion that mandatory minimum sentences can be flexible, to the extent that the court may find the pathway to substantial and compelling circumstances. The balancing act does not require of one to search in the dark, as it turns back to the path of the traditional factors of sentencing. All the factors traditionally considered in sentencing continue to play a role and must be cumulatively considered in the determination of substantial and compelling circumstances.

 

[28]    Having concluded that the circumstances herein warrants a departure from the mandatory minimum term of imprisonment, all that remain is to consider what would be an appropriate sentence. In the matters of Kauima, Kangulu and Lukas, the offence was that of rape and the prescribed term of imprisonment was 15 years. The sentences were reduced to 13, 12 and 8 years respectively on the basis of substantial and compelling circumstances. As for the offence of attempted rape, this court has come across the matters of S v Nakanene[17]and S v Pieters[18] wherein a term of five years imprisonment has been imposed in the respective cases.

 

[29]    For these reasons, the sentence by the court a quo on count 3 would be unjust and disproportionate to the circumstance herein and I consider a term of 7 years’ imprisonment to be more appropriate to the matter.

 

[30]    In the result:

 

1.  The appeal against the sentence on count 3 succeeds.

2.  The sentence on count 3 is set aside and replaced with a sentence of 7 years of imprisonment, to be backdated to the date when the sentence was originally imposed, being 26 November 2021.

 

 

_______________

C Claasen

Judge

 

________________

H January

Judge

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

APPEARANCES

 

APPELLANT:                                       L. Samaria

                                                            Legal Aid

                                                            Mariental

 

RESPONDENT:                                    F. Shikerete

Office of the Prosecutor-General,

Windhoek 

 

 

 

 

[1] S v Kauima (CC 07/2011)[2013] NAHCNLD 35 (20 June 2013).

[2] S v Lukas (CC 15-2013) [2015] NAHCMD 186 (10 August 2015).

[3] S v Kangulu (CA 09/2007) [2012] NAHC 33(17 February 2012).

[4] S v JB 2016(1) NR 114(SC) para 11 -12.

[5] S v Kaanjuka 2005 NR 205 HC at page 206.

[6] S v Rabie 1975 (4) SA 855 (A) at 857D-F

[7] S v Munyama (3) (SA 47 of 2011) [2011] NASC 13 (09 December 2011) para 7.

[8] S v Mukena (CR 34/2017) [2017] NAHCMD 138 (12 May 2017).

[9] Section 3(1)(a) (iii) (bb) of the Combating of Rape Act 8 of 2000.

[10] S v Lopez 2003 NR 162 (HC).

[11] S v Malgas 2001 (2) SA 1222(SCA).

[12] The numbering of the charges did not follow chronologically.

[13] Appeal record P 6, 7, 11, and 19.

[14] S v Erikson 2007 (1) NR 164 at 167A-B.

[15] Ibid at p 166F-G.

[16] Lopez supra p 174.

[17] S v Nakanene (CC 5/2016) [2018] NAHCMD 385 (29 November 2018).

[18] S v Pieters (CC 48-2009) [2015] NAHCMD 118 (27 May 2015).