CASE
NO.: CC 16/2008

IN THE HIGH COURT OF NAMIBIA

HELD IN OSHAKATI

In the matter between:

THE STATE

and

SHIKOYENI KESHIKULE

CORAM:
LIEBENBERG, A.J

Heard on: 04 March 2009 – 26 May
2009

Delivered on: 27 May 2009

SENTENCE:
[1]
The accused, now 18 years of age, pleaded guilty to a single charge
of Rape in contravention of section 2(1) (a) of the Combating of
Rape Act, 2000 (Act 8 of 2000) in that he, on the 23^rd
day of September 2006 at Ohakatiya Village in the district of
Eenhana, committed a sexual act with a girl aged 9 years, while the
accused at the time, was 15 years of age.

[2] In a
statement prepared in terms of section 112(2) of the Criminal
Procedure Act, 1977 (Act 51 of 1977) by Mr. Bondai, who appeared for
the accused on instructions of the Directorate: Legal Aid, amplified
the accused’s plea of guilty in the following terms: During
September 2006 the accused was employed at the home of the
complainant as a cattle herder and shared a bedroom with the
complainant and other children. On the night of 22^nd
or the morning of the 23^rd
September 2006 the accused stood up from his bed and went to where
the complainant was lying and after pulling her panties aside, he
inserted his penis into her vagina where after he engaged in a sexual
act with her. He furthermore admitted the age difference between him
and the complainant being more than 3 years and stated that he knew,
when committing the crime, that his actions were unlawful and
punishable by law.

[3] In view of
the young age of the accused, the Court requested a pre-sentence
report compiled by a social worker. This report was compiled by a
social worker, Ms Ilunga Muyinda employed by the Ministry of Gender
Equality and Child Welfare: Directorate of Child Welfare Services.

The
gist of this report is that the accused is one of a family of 9
members and he grew up with his biological parents. During these
years they did not experience any behavioural problems with him.
Accused has no formal education as he apparently was too old when
sent to a public school the first time and only attended a Literacy
Programme for a few months before dropping out for no apparent
reason. He thereafter started herding the cattle of his family which
he was still doing at the time of committing the crime in question.

In her assessment
of the facts Ms Muyinda came to the conclusion that the accused, when
committing the crime, could have been vulnerable owing to the fact
that he was far from home and the family members with whom he was
living, did not support him emotionally and furthermore, that the
accused at the time possibly lacked parental guidance and
supervision. She did however emphasise that the accused at no stage
displayed any behavioural problems. He is a first offender and
besides acknowledging the wrongfulness of his act, has also expressed
remorse for his wrongdoing. Because the accused being a minor when
he committed the crime and without him fully appreciating the
consequences of his actions, Ms Muyinda recommended that the accused
be sent to a rehabilitation centre where he could receive
reconstruction services. In her evidence however, she conceded that
she was unaware of a rehabilitation centre that could provide the
necessary reconstructive services.

[4] In sentencing
the Court has to take cognizance of those factors relevant to
sentencing namely, the personal circumstances of the accused; the
crime and the interests of society, while at the same time the Court
will endeavour to satisfy the objectives of punishment being
prevention, deterrence, rehabilitation and retribution. (S
v Zinn 1969(2)
SA 537 (A))

The courts,
when sentencing, have adopted an approach of mercy or compassion,
which should not be interpreted to mean that the Court has sympathy
for the accused. It has been said that “mercy
is a balanced and humane quality of thought which tempers one’s
approach when considering the basic factors of letting the punishment
fit the criminal as well as the crime and being fair to society.”

(S v Narker and
Another,
1975(1) SA 583 (AD))

[5] With regard
to the accused’s personal circumstances, the young age of the
accused weighs very heavy with the Court especially when taking into
account that he was only 15 years of age when he committed the crime.
Until then he had not displayed any behavioural problems or
misconduct, despite his upbringing and background being far from
ideal. It is not clear since what age the accused started herding
cattle or moved away from his parents’ home, but it seems to me
that the accused already at a very young age, was left to fend for
himself and had to go without the guidance and emotional support of
his parents and siblings. Therefore, Ms Muyinda’s evaluation of
the accused having been quite vulnerable at the time of committing
the offence of rape is not without merit.

[6] Another
aspect of the accused’s personal circumstances which carries
considerable weight is that at no stage did the accused make himself
guilty of misconduct or do someone mischief other than the
complainant in this case. I am therefore inclined to disagree with
the view taken that the accused has to be rehabilitated,
as he has no history of misconduct, criminal behaviour or the
propensity to commit crime. The crime he committed, albeit serious,
was his first and given the circumstances of this case, it would in
my view, be wrong to equate the accused with the majority of
criminals daily appearing in our courts on similar charges.

Accused has now reached the age of 18
years and there can be no doubt that he at this age has a better
understanding of the law as well as the moral and social values
expected from all in society.

[7]
Rape is always a serious crime for which lengthy custodial
sentences are generally imposed other than in wholly exceptional
circumstances. The circumstances in which the rape was committed
will determine the degree of seriousness of the case and in the
present matter the age of the victim being 9 years, is regarded to be
an aggravating factor. On the other hand, the accused himself was
only 15 years of age and a youth himself. This, in my view,
distinguishes this case from other cases where women and young
children fall prey to adult offenders who either assault or force
their victims into submission only to satisfy their sexual desires.
Although it can be said that the accused in this case did the same,
sight must not be lost of him being very young and, bearing in mind
that he was sharing a room with other children, it is clear that
those adults living in the house with him and the complainant,
approved of the situation, probably because they regarded the accused
to be still a child. A matter of concern to this Court is that the
accused did not attend school as was expected of a boy of his age,
but instead, was a herd boy looking after cattle. It cannot be said
that therefore, the accused should no longer be treated as a juvenile
and has to be punished like an adult.

[8]
It will only be in exceptional cases where the courts will follow
such course, for instance in the matter of Director
of Public Prosecutions, Kwazulu-Natal v P
2006(1) SACR 243 (SCA) where the accused was 12 years old at the time
of murdering her grandmother and 14 years old upon conviction. The
passing of sentence was postponed on certain conditions of
correctional supervision, against which the State appealed. The
Court of Appeal held that on the facts, the accused acted like an
‘ordinary’ criminal, despite her age and background, and should
have been treated as such. The Court further held that neither the
Constitution nor the international conventions forbade incarceration
of children, and it was not inconceivable that there might be cases
in which incarceration of a child was required. Even in the case of
child offenders, it was said, the sentence had to be in proportion to
the gravity of the offence. The Court proceeded and imposed a
sentence of imprisonment, suspended on certain conditions.

[9] In sentencing
juvenile offenders, the courts have, through the years, placed
emphasis on ‘care and rehabilitation’ rather than retribution and
deterrence as objectives of punishment. This is evident from the
words of Wessels J in S
v Smith
1922 TPD 199 who said: “…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 conduct.”

In the Court’s
endeavour to find a suitable sentence, it must have regard to the
circumstances in which the crime was committed as well as the
seriousness thereof; while at the same time, decide what punishment
would be best for the young offender that will also serve the
interest of society. In S
v Jansen
1975(1) SA (A) at 427H – 428A Botha JA stated: “In
the case of a juvenile offender it is above all necessary for the
court to determine what appropriate form a punishment in the peculiar
circumstances of the case would best serve the interest of society as
well as the interest of the juvenile. The interest of society cannot
be served by disregarding the interests of the juvenile, for mistaken
form of punishment might easily result in a person with a distorted
or more distorted personality being eventually returned to society.”

[10]
As a matter of principle, the Court must as far as possible avoid
imposing a sentence of imprisonment on the juvenile offender and
should bear in mind especially

“(a)
that the younger the accused, the less appropriate imprisonment will
be, (b) that imprisonment is inappropriate in the case of a first
offender, and (c) that short-term imprisonment is rarely
appropriate. The court should thus always consider the
appropriateness of other sentencing options. However, if, in all the
relevant circumstances and upon a consideration of the objects of
sentencing, imprisonment appears
to be the appropriate sentence, the court must impose it.”

(S
v Z 1999(1)
SACR 427 (E))

[11]
When applying the aforementioned principles to the present facts
the Court has to ask itself whether, bearing in mind the accused’s
personal circumstances as well as the circumstances of the case, a
custodial sentence is called for? The complainant did not sustain
serious injury and from the medical report handed in, it would appear
that the only injury was to the hymen which was no longer intact.
Unfortunately, this loss to the complaint will always stick to her
mind, especially when she becomes older. After having given due
consideration to all the factors relevant to sentencing as well as
the principles set out herein, I have come to the conclusion that it
will neither be in the best interest of the accused nor society, to
impose a custodial sentence where the accused has to go to prison.
The nature of the crime committed however, dictates the imposition of
a deterrence sentence; one that would personally serve as a warning
to the accused and other likeminded persons.

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

10 Years
imprisonment wholly suspended for 5 years on condition that the
accused is not convicted of Rape or Attempted Rape, committed during
the period of suspension.

_____________________________(Signed)

LIEBENBERG, A.J.

ON BEHALF OF THE STATE
Adv. O.
Sibeya

Instructed by: Office
of the Prosecutor-General

ON BEHALF OF DEFENCE Mr
Bondai

Instructed by:
Directorate: Legal
Aid