S v Werner (CC 22/08) [2009] NAHC 38 (31 March 2009);


Full judgment

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 asking.

[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 unless accompanied by genuine and demonstrable expression of remorse…” (S vs. Landau, 2000 (2) SACR 673 (WLD) at 678 b-c)

I fully endorse the sentiments expressed by Kuny, AJ in S vs. Landau (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 following:

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 conduct”.

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 have 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. Limbare, 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.




Instructed by: Office of the Prosecutor-General


Instructed by: Directorate of Legal Aid