CASE NO.: CA 09/2007

IN THE HIGH COURT OF NAMIBIA

In the matter
between:

THE
STATE
….............................................................................APPELLANT

and

VASCO
LIBONGANI KANGULU
…..............................................RESPONDENT

CORAM: Shivute, J
et Siboleka, J

Heard on: 2011
August 08

Delivered on: 2012
February 17

______________________________________________________________________________

APPEAL JUDGMENT

______________________________________________________________________________

SHIVUTE,
J: [1] The State has appealed in this matter
against the sentence that was imposed on the respondent by the
learned Regional Magistrate, after the respondent was convicted of
the offence of rape contravening section 2 (1)(a) of the Combating of
Rape Act, 2000 (Act No. 8 of 2000). The brief facts of the case are
that the respondent, who was 21 years old, committed a sexual act
under coercive circumstances with a minor who was 10 years old when
the offence was committed. He was convicted as charged and sentenced
to 12 years’ imprisonment. This was after the trial court found
that there were substantial and compelling circumstances present
necessitating the departure from the imposition of the mandatory
sentence of 15 years’ imprisonment provided for by section 3(1)
of the Combating of Rape Act

[2] The appellant
advanced the following grounds of appeal:

“(i)
The sentence is shockingly lenient when regard is had to the
circumstances of the offence and the mandatory sentence prescribed by
the Act.

(ii) The learned magistrate
failed to consider or gave insufficient weight to the deterrent and
preventive function that sentences in these circumstances should
have.

(iii) The learned magistrate
over emphasized the personal circumstances of the accused.

(iv) The learned magistrate
underemphasized the serious nature of the offence.

(v) The learned magistrate
failed to take into account that the accused raped the victim on two
separate occasions on the evening in question.

(vi) The learned magistrate
disregarded the coercive circumstances under which the rape was
committed, which called for the imposition of the mandatory sentence
of 15 years’ imprisonment. The coercive circumstances being
that the victim was below the age of 14 years, namely 10 years of age
at the time she was raped and that the accused was 21 years old which
is more than three years older than the victim.

(vii) The learned magistrate
erred by finding that the 21 months that the accused had spend in
custody constituted substantial and compelling circumstances that
warranted the imposition of a sentence below the mandatory minimum
sentence prescribed by the Act.”

[3] The appellant
was represented by Ms Nyoni whilst the respondent appeared in person.

[4] The appellant
submitted among others that the respondent was convicted of a serious
offence which was committed against a young victim. Therefore, the
youthfulness of the victim should have been considered as an
aggravating factor. The respondent is a grown man and a father of one
child. He was 21 years of age at the time the crime was committed.
The victim was raped twice on the same night in the sanctuary of her
home where she should have been most secured. The respondent
threatened to stab the victim with a knife if she should report to
her father. He further threatened to wait for her and harm her on the
way from the place where she fetches water. It was submitted that the
threats traumatized the victim. It was again the appellant’s
submission that the respondent showed no remorse because he did not
apologise to the victim and her family. Due to the seriousness of the
offence and its prevalence in the country, the Namibian society
expects the courts to deal harshly with offenders convicted of the
offence. Counsel for the appellant further argued that the learned
magistrate had a duty to properly consider the interest of society
when he sentenced the respondent.

[5] Counsel for
the appellant continued to argue that the circumstances of the
respondent were far outweighed by the seriousness of the offence and
the interest of society. Although the learned magistrate mentioned
the mitigating as well as aggravating circumstances of the case he
disregarded or did not sufficiently consider the fact that the
mitigating circumstances were negligible when regard is had to the
offence that the respondent stood convicted of and the interest of
society.

[6] It was further
a point of criticism by counsel for the appellant that the learned
magistrate trivialized the offence committed by the respondent
because the court a quo failed to take into account the fact
that the respondent was proved to have committed two separate counts
of rape on that same night. By sentencing the respondent to 12 years
imprisonment it meant that the respondent effectively went unpunished
for the other rape

[7] It is worth to
mention that although it has been proved that the respondent had had
sexual intercourse with the victim twice on that night unfortunately
the respondent was charged with only one count of rape. It is
therefore this Court’s opinion that the argument by the
appellant that the respondent should have been sentenced on each
sexual act which was committed against the victim was misplaced; the
respondent could not have been sentenced for the sexual act he had
not been convicted of.

[8] Counsel for
the appellant further submitted that the learned magistrate erred by
finding that the fact that the respondent had spent 21 months in
prison constituted “substantial and compelling circumstances”
warranting a departure from the imposition of the mandatory minimum
sentence. It was further argued that taking into account that the
respondent had raped the minor victim on diverse occasions, he
deserved a sentence that was higher than the minimum sentence
prescribed by the Act. Counsel for the appellant additionally
contended that the learned magistrate acted improperly when he in the
absence of medical evidence concluded that the respondent’s
health was so poor that he would “very soon” become a
burden to prison authority as a reason for departing from the
mandatory minimum sentence; that the learned magistrate failed to
take into account that the respondent’s medical needs would be
taken care of in prison.

[9] Counsel for
the respondent argued further that the magistrate deviated from
imposing a mandatory sentence for “flimsy reasons” as
there were no substantial and compelling circumstances. Therefore, so
counsel concluded her submissions, the finding that there were
substantial and compelling circumstances should be reversed and the
court should interfere by overturning the sentence imposed on the
Respondent and replacing it with a sentence that is in line with the
provisions of the Combating of Rape Act. This Court was referred to
several well-known authorities concerning sentencing on rape cases
and it is not necessary to mention them all herein.

[10] The
respondent, on the other hand, argued that the court a quo had
exercised its discretion properly and that this Court should
therefore confirm the sentence and dismiss the appeal. The respondent
had also referred us to some of the cases also cited by the appellant
concerning the question when an appeal court should interfere with
the sentence of the trial court.

[11] In S v
Tjiho 1991 NR 361 (HC) at 364G-H Levy J pointed out that a trial
court had a judicial discretion in sentencing the accused. The
learned Judge went on to state as follows:

“.
This discretion is a judicial discretion and must be exercised in
accordance with judicial principles. Should the trial court fail to
do so, the appeal Court is entitled to, not obliged to, interfere
with the sentence. Where justice requires it, appeal Courts will
interfere, but short of this, Courts of appeal are careful not to
erode the discretion accorded to the trial court as such erosion
could undermine the administration of justice”.

Conscious of the
duty to respect the trial court’s discretion, Levy, J in S v
Tjiho (supra) at 366A-B listed the following guidelines
which will justify such interference. The appeal court is entitled to
interfere with the sentence if:

1. 
   “the
   trial court misdirected itself on the facts or on the law;

   
   

2. 
   an irregularity which was
   material occurring during the sentence proceedings;

   
   

3. 
   the trial court failed to take
   into account material facts or overemphasized the importance of
   other facts;

   
   

4. 
   the sentence imposed is
   startlingly inappropriate, induces a sense of shock and there is a
   striking disparity between the sentence imposed by the trial court
   and that would have been imposed by the court of appeal.”

   
   

[12] Before it
sentenced the respondent, the trial court in this matter considered
the following factors:

(a) That the
imposition of the applicable mandatory minimum sentence was befitting
the offence, offender as well as the society at large.

(b) It considered
whether or not to take into account the period the respondent spent
in custody awaiting trial.

(c) The trial
court concluded that pre-sentence incarceration could not be ignored
especially if the accused is not the author of such incarceration,
for example, by jumping bail or committing other crimes whilst on
bail or warning.

(d) The trial
court considered pre-sentence incarceration where a prescribed
minimum sentence is called for in the absence of substantial and
compelling circumstances, regard being had to the fact that the trial
court had considered and found 15 years’ imprisonment being the
starting point before factoring in mitigation and aggravation.

(e) Regarding the
ground that the trial court did not call medical evidence, the trial
court did not deem it fit to do so as it was in a position to observe
the respondent exhibiting what it described as “badly swollen
legs, walking and standing with difficulty”, adding that the
court was least concerned with the nature of that illness but the
fact of it.

[13] I will
proceed now to decide whether there were substantial and compelling
circumstances for the court below to deviate from the imposition of a
mandatory sentence as prescribed by the Combating of Rape Act or
whether the learned magistrate deviated lightly or “for flimsy
reasons” from imposing the mandatory sentence.

[14] There are no
specific factors which are listed to be substantial and compelling.
All factors traditionally taken into account in sentencing thus
continue to play a role, none is excluded at the outset from
consideration in the sentencing process. (See S v Malgas 2001 (2) SA
1222 (SCA)) at 1231C)

[15] The trial
magistrate pointed out that after he had considered the factors
stated in paragraph [12] above, he turned to the consideration of
this Court’s decision of S v Lopez 2003 NR 162 (HC) at
173 F-G which cited with approval the South African case of S v
Malgas (supra) as to the meaning of “substantial and
compelling circumstances”. In Malgas the South African
Supreme Court of Appeal pointed out at 1236B that “[t]he
ultimate impact of all the circumstances relevant to sentencing must
be measured against the composite yard stick (‘substantial and
compelling’) and must be such as cumulatively to justify a
departure from the standardized response that the Legislature has
ordained”.

[16] I am alive to
the facts that the offence the respondent has been convicted of is a
serious one which ordinarily calls for a mandatory minimum sentence
and that the offence is committed under coercive circumstances
against a vulnerable minor child. However, sitting as an appellate
Court, and applying the principles that have already been mentioned
and at the pain of a repetition, we are only entitled to interfere
with the discretion of the trial court if there are convincing
reasons that that court failed to exercise its discretion
judiciously; that the sentence imposed is startlingly inappropriate
in the sense that it induces a sense of shock and/or that an
irregularity took place during the proceedings which leads to the
miscarriage of justice. Taking into account the principles relevant
to sentencing, the trial court’s reasons for imposing the
sentence under scrutiny, I am not persuaded that any of the factors
upon which a court of appeal may interfere is present in this matter.

I do not find any
misdirection in the approach of the trial court on the contended
grounds of appeal or at all. The trial court spelt out and entered on
the record the circumstances it considered to be taken cumulatively
to amount to substantial and compelling circumstances. In my view,
the cumulative traditional mitigatory factors “measured against
the composite yardstick (‘substantial and compelling’)
above justified the Magistrate to impose a lesser sentence than the
minimum mandatory sentence. The fact that the appeal Court could have
imposed a different sentence does not mean that the learned
magistrate did not exercise his discretion judiciously. It can also
not be said that the sentence of 12 years imposed on the respondent
after substantial and compelling circumstances were found to exist is
so startlingly inappropriate that it induces a sense of shock. I
would therefore dismiss the appeal.

[17] In the
result, the following order is made:

The appeal is
dismissed.

_______________

SHIVUTE, J

I agree.

_______________

SIBOLEKA, J

Appearance for
the parties:

For the
Appellant: Mrs Nyoni

Instructed by:
Office of the Prosecutor-General

For the
Respondent: In Person