Court name
High Court
Case number
CC 22 of 2008

S v Werner (CC 22 of 2008) [2009] NAHC 38 (31 March 2009);

Media neutral citation
[2009] NAHC 38

CASE NO.: CC 22/08



In the matter between:





Heard on: 30 March 2009

Delivered on: 31 March 2009


LIEBENBERG, AJ.: [1] The accused on 30 March 2009
pleaded guilty and subsequent thereto, was convicted of the offence
of Rape, read with the provisions of the Combating of Rape Act, Act 8
of 2000.

[2] Accused admitted having had sexual intercourse with the
complainant on the evening of 17 October 2007 at O village in the
district of Outapi. Complainant at the time was 9 years of age while
the accused was 19 years old. It is common cause that the accused
that evening was on his way home from a shebeen where he had consumed
traditional beer when he noticed the complainant and three other
young girls sleeping outside their house. He went up to the
complainant, told her to undress herself of her panty whereafter he
had sexual intercourse with her by inserting his penis into her
vagina. The other girls stood up and when an elder sister of theirs
arrived they reported the incident to her. When the accused became
aware of the presence of the sister, he jumped up and ran to a nearby
shebeen where he was later found and confronted. He then admitted
having raped the complainant.

[3] The complainant’s age was confirmed by a certified copy of an
abridge birth certificate issued in her name stating that she was
born on 07 November 1997, making her 9 years of age at the time of
the incident and not 7 years as counsel submitted.

[4] A medical examination report was handed in by agreement according
to which the complainant was medically examined on 17 October 2007 by
Dr. Mwahula who made the following observations on the complainant:
Labia minora – bruised in its whole length on both sides; vestibule
- inflamed; hymen – torn at 5 and 8 o’clock positions; one finger
examination – painful; blood at vaginal introitus. Except for small
multiple superficial bruises on the right upper thigh, the
complainant had not sustained any other external injuries.

[5] In sentencing the Court has to consider a triad of factors
and these are the offender, the crime and the interests of society.
It is also well established that the Court must consider the element
of mercy which Holms, J.A. in State vs. Rabie, 1975 (4) SA 855
(A.D) at 862 G summed up as follows:

Punishment should fit the
criminal as well as the crime, be fair to society, and be blended
with a measure of mercy according to the circumstances”.

See also S vs. Harrison, 1970 (3) SA 684 (A)

[6] In deciding what punishment in the circumstances will be just,
the Court must also have regard to the main purposes of punishment as
referred to in S vs. Khumalo and Others, 1984 (3) SA
327 (A) namely, deterrence, prevention, reformation and retribution.
The Court has to consider each of these principles in the
circumstances of the case and it then becomes quite a complicated
task of trying to harmonise and balance these principles. It however
does not imply that equal weight must be given to each of the
different factors, because the circumstances of a case may be such
that one factor be emphasized at the expense of the other. (S vs.
Van Wyk,
1993 NR 426 (HC) at 448 D-E)

[7] The accused did not testify in mitigation and his personal
circumstances were placed on record by Mr. Uirab, who appeared on
behalf of the accused. Accused turns 21 years in August 2009 and when
committing the crime he was 19 years of age; he was a grade 9
learner; he resided with his grandmother whom he assisted with
cultivation and also looked after the livestock. He is desirous of
completing grade 12 and was unable to attend school since his arrest
in October 2007. Accused is a first offender.

[8] It was submitted that the accused has remorse for what he has
done and begged forgiveness from the complainant and her family as
well as the Court. This, it was argued, is evident from the
accused’s plea of guilty.

[9] It seems necessary to repeat what has been said by courts in
other jurisdictions as well as by this Court namely that the court
must be placed in the position to determine whether the
penitence the accused claims to have, is sincere and he
therefore has to take the court fully into his confidence and give
evidence to that effect. (S vs. Seegers, 1970 (2) SA
506 (A) at 511 G-H).

Remorse is an important consideration when the deterrent effect of a
sentence on the accused is adjudged and therefore, it should not be
left for the accused’s counsel to convey that to the Court.
Remorse, as a mitigating factor, is not to be had merely for the

[10] The accused’s plea of guilty as an indicator of his remorse
must also be considered in the circumstances of the case, as these
might be so overwhelming against the accused that he has no option
other than to plead guilty. The present case seems to me to be one of
those cases where the accused had no option other than to plead
guilty because he was caught in the act and shortly thereafter
admitted to having committed the crime. Where it is clear that an
accused “… 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
accompanied by genuine and demonstrable expression of
…” (S vs. Landau, 2000 (2) SACR 673 (WLD) at 678

I fully endorse the sentiments expressed by Kuny, AJ in S vs.
(supra) and in the absence of the accused giving evidence
in mitigation, I am unable to determine the genuineness of his
alleged contrition. Thus, not much weight can be given thereto.

[11] It was emphasized that the accused had been drinking on the
night in question prior to raping the complainant, upon which the
Court raised the question with defence counsel what the court should
make of that as he was still a scholar? I think Mr. Uirab is quite
right when he replied that it probably shows what type of scholar the
accused was. At the age of 19 years he was still in grade 9 and when
regard is had to the present situation the accused finds himself in,
his desire to complete grade 12 might not be fulfilled in the near
future, unless he makes a complete turn about. Obviously, this will
depend on the sentence to be imposed on him today.

[12] The fact that the accused is a first offender weighs heavily
with the Court and also that he is still a young man with his whole
life lying ahead of him. When it comes to young first offenders, the
courts follow an approach where a custodial sentence is, as far as it
is reasonably possible, avoided, to ensure that the young offender
does not come into contact with hardened criminals in prison.
However, there is no rule of thumb test that when it comes to serious
crimes, first and young offenders cannot be sent to prison. This will
largely depend on the seriousness of the crime and the circumstances
under which it was committed and sometimes it is inevitable to send
young offenders to prison. It is not only the interests of the
offender that deserves consideration, but also the other factors viz.
the crime and the interests of society.

[13] The offence of rape is undoubtedly very serious and also
prevalent throughout Namibia and one which is normally visited with
severe punishment in the form of a custodial sentence. It is only in
exceptional circumstances that a custodial sentence is not imposed
even on juvenile offenders. In S vs. H, 1995 NR 136 (HC)
Hannah, J remarked that because rape is such a serious crime a
custodial sentence should be imposed to mark the gravity of the
offence; to emphasize the disapproval of society; to serve as a
warning to others and to punish the offender. With regard to juvenile
offenders guilty of rape, the learned judge at page 138 said the

But the offence of rape is
so serious that even in the case of a juvenile a non- custodial
sentence cannot be justified in most cases. There must be wholly
exceptional circumstances to justify such a course”…

I respectfully agree.

[14] It is absolutely shocking to see for what crimes the youth of
this country are nowadays brought before our courts, crimes like
rape, and murder committed under circumstances nothing different from
that committed by adults. They seem to have outgrown their childhood
at a much earlier stage and take on the challenges what life has on
offer, even if that involves the commission of serious crimes. One
should however be careful of not generalizing as each case has to be
determined on its own facts but, one should also be mindful of not
simply accepting that a youthful offender is automatically entitled
to be treated differently without having regard to the other factors
relevant to sentencing.

In Director of Public Prosecutions, Kwazulu-Natal v P,
2006 (1) SACR 243 (SCA) the Court held that the accused, who was
merely 12 years old when she arranged the murder of her grandmother
and 14 years when sentenced, acted like an “ordinary”
criminal, despite her age and background and should have been treated
accordingly. A sentence of 7 years imprisonment, conditionally
suspended, was found to be appropriate.

This underscores the view of this Court that young offenders, when
committing serious crimes, cannot hide behind their youth, a message
that needs to be sent out to young offenders.

[15] The facts of the present case do not fall in the category of
cases where the accused is of tender age and where the court should
follow the course taken in R vs. Smith, 1922 TPD 199 at 201
where Wessels, J stated:

“ …. the State should not
punish a child of tender years as a criminal and stamp him as such
throughout his after life, but it should endeavour by taking him out
of his surroundings, to educate and uplift him and to make him
gradually understand the difference between good conduct and bad

At the age of 19 years the accused was old enough to appreciate the
wrongfulness of his conduct and also to accept the consequences of
such conduct.

[16] The extent of the accused’s intoxication that evening was not
determined and it is simply insufficient to allege that the accused’s
judgment was impaired by his consumption of liquor and expect of the
Court to accept that as a mitigating factor. In order to do so,
reliable evidence should be put before the Court.

[17] Regarding the nature of the sexual act committed with the
complainant it was submitted that the accused was unable to “fully”
penetrate the complainant because the act was interrupted by the
presence of the relative; as a result thereof the complainant did not
suffer any serious injuries which again reduces the moral
blameworthiness of the accused as the complainant did not suffer any
psychological harm.

[18] Accused, on his own admission, only stopped because of the
presence of the relative and not for any other reason. Thus, had the
relative not arrived at the scene, the accused would have continued
this heinous act with the complainant inflicting more serious
injuries in the process. I fail to understand why the accused should
gain some advantage from these circumstances as it is not an instance
where he voluntarily withdrew when he came to his senses. Neither
should the Court focus too much on what injuries the accused could
inflicted on the person of the complainant instead of the
injuries actually sustained by her.

Taking into account the age of the complainant, I view the injuries
to be of serious nature. It is further indicative that it was not
merely a single act of penetration and subsequent withdrawal, but a
continuous act as the genitalia was bruised. That there was force
behind the penetration is further evident from the ruptured hymen,
despite the small size of the complainant’s vagina, not fully
admitting the accused’s penis. This notwithstanding, the accused
was not perturbed. Complainant was a defenceless child, unable to
stand up against the accused. These are all aggravating factors.

[19] Mr. Uirab submitted that regard must be had to the almost one
and a half years the accused had already spent in custody awaiting
trial and invited the Court to impose a totally suspended sentence,
alternatively a partly suspended sentence. Furthermore, that the
mitigating factors amount to being substantial and compelling and
that the Court may impose a lesser sentence. Mr.Lisulo, appearing for
The State clearly did not share his view and urged the Court to
impose the prescribed minimum sentence applicable to the facts in
casu namely, imprisonment of not less than 15 years.

[20] The circumstances specifically referred to by Mr. Uirab are: the
period of detention; the accused’s age; accused’s consumption of
alcohol; and the (minor) injuries inflicted during the commission of
the crime. What has to be added is that accused is a first offender.

I have already discussed the age aspect, the accused’s consumption
of alcohol that night and the injuries sustained by the complainant
and I do not regard any of these to be mitigating.

It is trite to take into consideration when sentencing, the period
spent in custody by the accused awaiting the finalization of his case
and this Court will bear that in mind. Sufficient weight will also be
given to the accused being a first offender.

[21] It is now settled that it is not required that the circumstances
must be special or exceptional and that those
circumstances usually considered by the sentencing court must be
taken into consideration and to be weighed cumulatively with all
the other factors
in order to decide whether there are
substantial and compelling circumstances present or not. (S vs.
, 2006 (2) NR 505 (HC) )

Thus, not only should the court consider the mitigating factors but
also the aggravating factors and those circumstances normally
considered when sentencing.

[22] Having duly considered all factors and circumstances relevant to
sentencing, I am unpersuaded that these amount to substantial and
compelling, justifying the imposition of a lesser sentence. Should I
be wrong in my assessment of these facts, then I am convinced that
the discretion given to the Court in section 3 (2) of the Combating
of Rape Act, should not be exercised in favour of he accused as it
will amount to an injustice.

[23] This Court is under a duty to uphold law and order in the
community and this can be achieved by imposing proper and justified
sentences in suitable cases. By so doing it will promote respect for
the law and at the same time send out a clear message to other would
be offenders.

I have no doubt that in the present instance, a deterrent sentence is
called for, individually and generally. I also do not believe that
the incarceration of the accused at his age should be seen only as
negative as he could make use of his imprisonment to reform. A
custodial sentence in the circumstances, is inevitable and I do not
find this case to be one of those wholly exceptional cases
where a custodial sentence should not be imposed.

[24] The Court under section 3 (4) is prohibited from applying
section 297 (4) of the Criminal Procedure Act, 1977 and therefore may
not suspend any part of the sentence except for that part of the
sentence in excess of the prescribed minimum sentence, in this case
15 years. The circumstances in my view, however, do not justify a
sentence in excess of he prescribed sentence.

[25] In the result, the accused is sentenced to:

15 years imprisonment.



Adv. D. Lisulo

Instructed by: Office
of the Prosecutor-General

B.M. Uirab

Instructed by:

Directorate of Legal Aid