SUMMARY REPORTABLE
CASE NO.: CA
8/2006
THE STATE v VASCO
KANGULU LIBONGANI
Heard on: 2009
June 29
Delivered
on: 2009 July 2
PARKER, J
Criminal Law - Offence
under s 3 (1) of the Combating of Rape Act, 2000 (Act No. 8 of 2000)
– Specified minimum sentence in terms of – Such sentence may be
departed from where substantial and compelling circumstances exist
and they must be spelt out in the judgment – The cumulative impact
of factors that are traditionally and rightly taken into account when
sentencing and other factors ought to be considered in deciding
whether to depart from specified sentence – But such impact must
measure up to the ‘substantial and compelling circumstances’
mark.
Criminal procedure - Leave
to appeal by the State – Application for – The State appealing
against sentence imposed by trial court – Court finding trial court
did not have a good reason to depart from specified minimum sentence
under s 3 (1) of Act No. 8 of 2008 – Accordingly Court concluding
that there are reasonable prospects of success on appeal as the
appeal court might take a different view about the sentence imposed
by the trial court – Court therefore granting application.
Held -
In considering whether substantial and compelling circumstances exist
to justify refusal to impose the specified minimum sentence under s 3
(1) of Act No. 8 of 2000, a court may consider the cumulative impact
of the factors that are traditionally and rightly taken into account
when sentencing and any other factors but such impact must measure up
to the ‘substantial and compelling circumstances mark’ within the
meaning of s 3 (2) of Act No. 8 of 2000; and to be able to measure
up to that mark, there must be something
more in the
circumstances of those factors.
REPORTABLE
CASE NO.: CA
8/2006
IN THE HIGH COURT
OF NAMIBIA
In
the matter between:
THE
STATE APPLICANT
and
VASCO KANGULU
LIBONGANI RESPONDENT
CORAM: PARKER,
J
Heard on: 2009
June 29
Delivered
on: 2009 July 2
JUDGMENT:
PARKER, J.:
[1] In this matter the
respondent (accused in the court below) was convicted of
intentionally committing a sexual act under coercive circumstances in
terms of the Combating of Rape Act, 2000 (Act No. 8 of 2000) (the
Act). The accused was 21 years old and the victim, a child girl, 10
years old at the time of the commission of the offence. The accused
was convicted as charged and sentenced to 15 years’ imprisonment;
that is, the learned magistrate imposed a sentence lesser than the
sentence specified in s 3 (1) of the Act. The State now applies for
leave to appeal against the sentence imposed by the learned
magistrate. Ms Nyoni represents the State; the respondent appears in
person.
[2] In its application for
leave to appeal, the State has set out a number of grounds. I need
not repeat them here; only to mention that the gravamen of the
grounds in their totality is basically this: the learned magistrate
was wrong in imposing a sentence that is less than the statutorily
specified sentence in terms of the Act because the learned
magistrate’s reasons for departing from the specified sentence
cannot pass muster since no substantial and compelling circumstances
existed. In particular, Ms. Nyoni submitted, the learned magistrate
overemphasized the accused’s personal circumstances at the expense
of the other factors traditionally and rightly taken into account
when sentencing that have been developed by the courts over the
years, being the crime (in
casu, the
seriousness of the crime) and the interests of society. Counsel
submitted further that the seriousness of the crime is heightened by
the fact that the respondent committed the unlawful sexual act
against the victim more than once the same night; the respondent was
more that 10 years older than the victim; the act was carried out in
the safety of the victims house where she ought to have felt safe;
and what is more, the respondent threatened to kill the victim if she
told her father about what the respondent had done to her. Counsel
argued that the threat added on to the severe trauma that the child
girl had suffered at the hands of the adult respondent. Accordingly,
counsel argued that the learned magistrate completely disregarded
these deeply aggravating factors. I agree with counsel, as will
become apparent shortly.
[3] The application was served
on the respondent personally on 20 May 2009 by a police official, but
the respondent did not lodge any written submission with the Court.
In his oral submission in Court, the respondent merely informed the
Court that he was a sick man (he did not tell the Court the nature of
his sickness) and that in his view the sentence imposed by the
learned magistrate should be allowed to remain.
[4] Since
the learned magistrate imposed a sentence that is less than the
statutorily specified sentence under s 1 of the Act, in terms of the
mandatory provision of s 3 (2) of the Act, the learned magistrate
must spell
out
and enter on the record the circumstances that the learned magistrate
considered justified his refusal to impose the statutorily specified
minimum sentence. (See S
v Lopez
2003 NR 162 H.) Thus, such circumstances must measure up to
‘substantial and compelling circumstances’; that is, the
circumstances must not just be any circumstances imaginable.
[5] As I said in S
v Nowaseb 2007(2) NR 640
at 640F, relying on the cases there cited, ‘It
has been stated in a long line of cases that
in an application of this kind the applicant must satisfy the court
that he or she has a reasonable prospect of success on appeal.’
[6] On
the authority of Lopez
supra, I accept that in considering what circumstances are
substantial and compelling, a court ought to take into account the
many factors traditionally and rightly taken into account by courts
when sentencing offenders; of course, in addition to any other
factors. What these factors are apt to convey is that the ultimate
cumulative impact
of those circumstances must be such as to justify a departure from
the statutorily specified sentence (Lopez
supra at …); that is, those factors must in their circumstances and
in their combined impact, be ‘substantial’ (i.e. of ‘real
importance, value, or validity’ – Concise
Oxford Dictionary,
10th
ed) and ‘compelling’ (i.e. ‘rousing strong attention,
conviction, …’ – Concise
Oxford Dictionary
10th
ed). In sum, there must be something
more
(i.e. substantial and compelling) in the circumstances of the factors
that are in favour of the accused for those circumstances to be able
to measure up to the ‘substantial and compelling’ mark within the
meaning of s 3 (2) of the Act.
[7] What
substantial and compelling circumstances does the learned magistrate
say existed to justify his refusal to impose the specified minimum
sentence? The circumstances relied on by the learned magistrate are
primarily the period the accused was in custody awaiting trial (what
the learned magistrate calls the ‘pre-sentence incarceration’)
and ‘other mitigating factors that are traditionally taken into
account whether or not the offence calls for a minimum sentence.’
Under the head of ‘mitigating factors that are traditionally taken
into account’, the learned magistrate considered only the personal
circumstances of the respondent out of many factors: he completely
disregarded other crucial factors, as I have said previously. I do
not think the learned magistrate was entitled to take into account
only the factor that he considered to be in favour of the respondent
and sit back. Accordingly, in my view, the learned magistrate could
not have reasonably assessed the ultimate cumulative impact of the
factors traditionally and rightly taken into account when sentencing
offenders in order to determine judicially whether there were
something
more
in the circumstances of the factors justifying a departure from the
specified sentence. In any case, as I have said more than once, it
was wrong for the learned magistrate to have considered only one such
factor among the many factors.
[8] Accordingly, I
conclude that the learned magistrate departed from the specified
sentence lightly and for flimsy reasons: his reasons for so doing
cannot withstand scrutiny. It follows that I accept Ms Nyoni’s
submission on the point. I, therefore, hold that there is a
reasonable prospect of success on appeal; that is, there is a
reasonable prospect that the court of appeal might take a different
view.
[9] For all the
above conclusions and reasoning the application for leave to appeal
against the sentence imposed by the learned magistrate is granted.
______________
Parker, J
ON BEHALF OF THE
APPLICANT: Adv
Nyoni
Instructed by: The
Prosecutor-General
THE RESPONDENT: In person