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, 10^th ed) and ‘compelling’ (i.e. ‘rousing strong attention, conviction, …’ – Concise Oxford Dictionary 10^th 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