CASE
NO.: CC 12/ 2008

IN THE HIGH COURT OF NAMIBIA

In the
matter between:

THE
STATE

and

SAMUEL SHIGWEDHA

CORAM: LIEBENBERG, AJ

Heard
on: 10 March 2009

Delivered on: 13 March 2009

SENTENCE

LIEBENBERG, A J.:
[1] Accused pleaded guilty on two charges of Rape in

contravention of section 2(1)(a) of the Combating of Rape Act, Act
No. 8 of 2000

and was accordingly
convicted on 10 March 2009. A statement, prepared in terms of
section 112(2) of the Criminal Procedure Act, Act No. 51 of 1977 in
which the accused’s pleas of guilty were amplified, was handed in
by Mr. Bondai who appeared on behalf of the accused. Mr. Lisulo
represented the State.

[2] It is common cause that when these crimes
were committed during 2007 the complainant was 10 years of age whilst
the accused was 40 years old. The accused, being a cousin on her
father’s side, was staying with the complainant’s parents in the
same house at Onyoka village in the Ondangwa district. On 11 October
2007 when the accused returned home at night after having had some
beers, he entered the complainant’s bedroom, looking for matches.
He then sat down on her bed and started fondling her whereafter he
undressed her of her panties and proceeded engaging in a sexual act
with her by inserting his penis into her vagina. On a later date in
2007 the accused again entered the complainant’s bedroom and had
sexual intercourse with her as before. In
the section 119 pleading it is stated that the accused, upon the
court’s question as to why he had sexual intercourse with a child
aged 10 years, replied that he was drunk but that he knew what he was
doing at the time and only wanted to satisfy his sexual desires.

A certified copy of the complainant’s birth certificate was handed
in and according to this she was born on 8 March 1997, making her 10
years of age at the time she was raped. From a medical examination
report handed in by agreement, complainant was examined by a Dr.
Pyrlye on 12 October 2007. There were no visible signs of violence
present other than a ruptured hymen which, in the doctor’s opinion,
was an old scar caused by penetration of the vagina.

[3] In deciding what a proper sentence would be,
the Court will consider a triad
of factors namely the offender, the crime and the interests of
society. At the same time regard must also be had to the objectives
of punishment namely prevention, deterrence, rehabilitation and
retribution and the Court must endeavour to strike a balance between
these factors. It however does not mean that equal weight must be
given to each of these factors as the circumstances of a case might
dictate that one or more of the factors must be emphasised at the
expense of the others. (S v Van Wyk 1993
NR 426 at 448)
The Court is also enjoined to consider the element of mercy and in S
v V 1972(3) SA 611 (A) at 614D Holmes
JA said:

“The
element of mercy, a hallmark of civilised and enlightened
administration, should not be overlooked, lest the Court be in
danger of reducing itself to the plane of the criminal….”

What this means is that justice must be done, but with compassion and
humanity.

[4] The personal circumstances of the accused play an important
role in sentencing and must not be overlooked, as it ultimately is
the accused that must be punished for the crime he has committed.
Because the facts of each case are unique and the personal
circumstances differ from one accused to another, sentences for
similar offences would mostly also differ. This is referred to as
the principle of individualisation and in short this means that each
case has to be considered on its own facts and with regard to
sentence, effect must be given therein to the particular personal
circumstances of the accused.

[5] Accused did not testify in mitigation and his personal
circumstances were placed before the Court by his counsel and these
are: At the age of 40 years the accused is a first offender; he is
single and has no children; he has very little formal education and
only completed grade 3; at the time of his arrest he worked as a
cattle herdsman earning N$200 per month; and, he is in custody
awaiting trial now for 15 months.

[6] It was submitted on the accused’s behalf that he had not
planned the commission of these crimes in advance and that the
consumption of alcohol tends to influence the powers of restraint to
commit crime; that the complainant did not suffer serious physical
harm as a result of the rapes; that it did not involve the use of
weapons against the complainant; and, that the accused was
remorseful, explaining his plea of guilty on both charges.

[7] As far as the accused’s state of sobriety
goes, he did not explain to the Court how much beer he consumed that
night and neither did he give evidence as to the extent of his
intoxication. Having regard to his earlier explanation in the
district court where he said that he
knew what he was doing (was wrong) and only wanted to satisfy his
sexual desires, it does not appear to
me that the alcohol consumed by the accused earlier, played any
significant role in the commission of the first rape, whilst during
the second incident, he was sober.

[8] I furthermore find the accused’s contention that the
commission of these crimes were not planned, unconvincing for the
following reasons: Firstly, why would it have been necessary for the
accused to enter the complainant’s bedroom at night in search of
matches as she is only a child? Should he not have asked it from her
parents? No explanation was offered by the accused justifying his
entering of the complainant’s bedroom at night. Secondly, the two
incidents did not take place at the same time, so the accused must
have chosen an opportune time to commit the second rape. Accused did
not inform the Court of the circumstances in which the second rape
took place, making it impossible to determine whether there is any
merit in the submission about the accused not having planned his
actions in advance. Judging from the facts before Court I am unable
to come to such conclusion and for the reasons mentioned earlier,
there is sufficient reason to believe that his actions on both
occasions did require some form of planning.

[9] Regarding defence counsel’s submission that the commission of
both crimes did not involve threats or the use of any weapons against
the complainant, it must be borne in mind that there was no need for
that as the accused was a family member living in the same house
enabling him to enter complainant’s bedroom at night. Furthermore,
besides their relationship, accused was an adult compared to the
complainant being a young child who possibly, for that reason, did
not offer any resistance. In the circumstances, I do not think the
accused can gain favour with the Court for the reasons advanced on
this point.

[10] Remorse, as an indication that the accused
will not repeat the offence, is an important consideration when the
Court has to consider the deterrent effect of a sentence to be
imposed on the accused. However, it has been said that in order for
that to be a valid consideration, “penitence
must be sincere and
the accused must take the Court fully into his confidence. Unless
that happens the
genuineness
of contrition cannot be determined.”
(emphasis provided)
(S v
Seegers 1970(2) SA 506 (A) at 511G-H)

In the present case the accused did not testify in
mitigation and only expressed his remorse through his counsel who
relied on the accused’s pleas of guilty as proof of his sincerity.
Had the accused taken the Court into his confidence, he would have
taken the stand and expressed himself under oath regarding his
remorse and the sincerity thereof could have been tested under
cross-examination. It is not sufficient to merely inform the Court
from the Bar that the accused has remorse, which is evident from his
plea of guilty. The evidence might be so overwhelming against the
accused that he has no option other than pleading guilty, in which
case it cannot be assumed that, therefore, he has shown contrition by
pleading guilty. I fully endorse the remarks made by Kuny, AJ in S
v Landau 2000(2) SACR 673 (WLD) where
he said the following at 678a-c:

“Courts
often see as significant the fact that an accused chooses to ‘plead
guilty’. This is sometimes regarded as an expression on the part
of the accused of genuine co-operation, remorse, and a desire not to
‘waste the time of the court’ in defending the indefensible. In
certain instances a plea of guilty may indeed be a factor which can
and should be taken into account in favour of an accused in
mitigation of sentence. However, where it is clear to an accused
that the ‘writing is on the wall’ and that he has no viable
defence, the mere fact that he then pleads guilty in the hope of
being able to gain some advantage from that conduct should not
receive much weight in mitigation of sense unless
accompanied by genuine and demonstrable expression of remorse,
which was absent in
casu.”
(emphasis provided)

In the present case the Court is for the abovementioned reasons, not
in a position to determine the sincerity of the accused’s claim of
having remorse and therefore cannot give much weight thereto.

[11] I now turn to consider the crimes committed
by the accused. Although the circumstances in which the second rape
took place were not specified, it would appear from his plea
explanation that it was similar to the first incident where accused
had entered the complainant’s bedroom at night where after he
undressed her and then raped her. All this happened in her parent’s
house where complainant was supposed to feel safe and protected. The
crime of rape is mostly committed with the purpose to satisfy the
sexual urge of the offender – which accused admitted in the court a
quo - and it seems to me that it can
only in the most exceptional circumstances contain mitigating factors
which could explain the commission of the crime and diminish the
moral blameworthiness of the offender. In this case it is indeed an
aggravating factor that these crimes were committed by a member of
the complainant’s household and thus, in a position of trust.
Accused clearly misused the trust bestowed on him and instead of
being her protector, he abused her in the safety of her own home.

The complainant was merely 10 years old and at
that tender age very vulnerable, yet the accused targeted her to
commit a heinous crime such as rape, with her. This is another
aggravating factor, all of which will have a bearing on the sentence
to be imposed. In the circumstances it seems apposite to refer to
what Damaseb, JP said in Festus Israel
Veundjua Kaanjuka Case No. CA 132/2004
(unreported), delivered on 21.02.2005 and I quote :

“Brutality
against the vulnerable in our society, especially women and children,
has reached a crisis point. Small children have become the target of
men who are unable to control their base sexual desires. What once
may have been unthinkable had now become a quotidian occurrence …….
These crimes against the vulnerable in our society evoke a sense of
helplessness in the national character. The Courts are doing their
utmost best, through very stiff sentences, to deter men from raping
women and small children but, apparently, without much effect.
Rehabilitation and general deterrence should therefore have very
little relevance when it comes to considering sentences for these
kind of sexual offenders. I am aware that laws do not make people
moral, but the Courts as custodian of our laws must exact vengeance
for people’s actions, when those threaten the fabric of our
society, lest the general populace lose faith in the legal system and
resort to means not concordant with our Constitution. Those who
commit despicable and heinous crimes against women and children,
crimes that we have, shamefully, now become accustomed to as a
community, should expect harsh sentences from the Courts of this
land.”

[12] The Court fulfils an important function in applying the law in
the community and has a duty to maintain law and order. By its
decisions and the imposition of proper sentences, it promotes respect
for the law. Sentences have to reflect the seriousness of the
offence and provide just punishment for the offender while, at the
same time, taking into account the personal circumstances of the
accused.

[13] The crimes for which the accused stands convicted of,
undoubtedly fall in that category of cases for which imprisonment is
the only proper sentence. Having been charged under the Combating of
Rape Act, 2000, the only sentence that the Court may impose is that
of imprisonment and, with regard to the prescribed sentence
applicable to the present facts, a term of imprisonment of not less
than 15 years has to be imposed unless substantial and compelling
circumstances are found to exist, justifying a lesser sentence of
imprisonment (section 3(1)(a)(iii)(bb)).

[14] Mr. Bondai conceded that a custodial sentence is unavoidable
but urged the Court to find that substantial and compelling
circumstances exist, justifying the imposition of a lesser sentence.
Alternatively, the Court should take the two offences together for
sentence or order them to run concurrently.

[15] It weighs heavily with the Court that the
accused is a first offender at the age of forty and that he has been
in custody awaiting trial for fifteen months. Other than that, there
appears to be nothing else (in mitigation), to find in favour of the
accused and for the Court to come to the conclusion that these
circumstances are substantial and compelling. The Court not only has
to consider those factors favourable to the accused, but must also
have regard to the aggravating factors. In other words, the Court
must take into consideration all factors
relevant to sentencing and having done that, decide whether these are
substantial and compelling.

[16] After giving due consideration to all the facts present in
this case, I am not convinced that they are substantial and
compelling. In fact, in my view, the circumstances in which these
crimes were committed, justify a sentence exceeding the mandatory
sentence. It requires that severe sentences be imposed, firstly, to
deter the accused from repeating this type of offence and secondly,
to serve as a general deterrence to other would be offenders.

[17] When imposing lengthy terms of imprisonment
on an accused in respect of two or more related offences, the
accepted practice is to have regard to the cumulative effect of the
sentences to be imposed in order to ensure that the total sentence is
not disproportionate to the accused person’s blameworthiness. The
accused is middle-aged and as the Court does not want to see the
accused spend the rest of his life in prison, the sentence needs to
be ameliorated. In addition, it is trite that the period an accused
spends in custody, especially if it is lengthy, is a factor which
normally leads to a reduction in sentence. (See: Abuid
Kauzuu v The State – Case No. CA
19/2004 (HC): unreported judgment dated 2 November 2005 at p. 14)

[18] In the result, the accused is sentenced as follows:

Count 1: 16 years imprisonment

Count 2: 16 years imprisonment

In terms of section 280(2) of Act 51 of 1977 it is ordered that half
(eight years) of the sentence imposed on count 2 must be served
concurrently with the sentence imposed on count 1.

_________________________

LIEBENBERG, AJ

ON
BEHALF OF THE STATE
Mr Lisulo

Instructed
by: Office
of the Prosecutor-General

ON
BEHALF OF DEFENCE Mr Bondai

Instructed
by: Directorate:
Legal
Aid