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