CASE NO.: CC 23/2010

IN THE HIGH COURT OF NAMIBIA 
HELD AT OSHAKATI
In the matter between:
THE STATE

and

PETRUS MATEUS

SENTENCE

plea of guilty on a charge of rape, read with the provisions of the Combating of Rape Act, 2000 (Act 8 of 2000). We have now come to the stage where the Court needs to consider what sentence would be suitable and just to impose upon the accused.

[3] The victim was medically examined at St. Martin Hospital, Oshikuku that same day, and from a medical report compiled by a certain doctor Baluti Kongo handed in by agreement, the following noteworthy findings were made: The hymen was absent; the vagina admitted two fingers; white thick discharge present. The doctor described the examination as 'easy' and noted under remarks, 'impression of penetration in child's vaginal canal'. These findings confirm the accused's admission that he indeed penetrated the victim.

[5] Accused gave evidence in mitigation and placed his personal circumstances before the Court, which are the following: Despite the accused's age reflected on the indictment being twenty-eight years, he was unable to confirm this in Court. This notwithstanding, from his appearances, I am satisfied that he is an adult person. He did not receive any formal education and was raised by an aunt of his as both his parents are deceased. He has an elder brother, in whose house he is currently staying; as the brother works permanently in Walvis Bay. Accused makes a living from cultivation and the income he received during last year for fencing work he did for others. This is clearly not a full-time occupation from which he can make a living. He is a first offender and admitted that what he has done was wrong and that he was sorry for that. He was at a loss for words as to the sentence he should be given. Before being released on his own recognisance, he was in custody for one-and-a-half years.

[10] It is clear from the accused's audacious conduct to have sexual intercourse with the baby left behind in the room by the mother when taking a bath, that he merely saw an opportunity to satisfy his sexual desires without having regard to, and fully appreciating the consequences and blameworthiness of his conduct. When asked under cross-examination why he did this, he replied that he does not know. It was hinted in his plea explanation that he was sexually aroused by the child having been naked; however, according to the mother, the child was dressed and not naked as the accused alleged. Hence, there is no merit in this contention that should favour the accused. I personally find it repulsive that an adult person could be sexually arousedby a one year old baby; something that seems to be symptomatic of a distorted mind. Unfortunately, the courts are lately frequently required to decide cases in which extremely young children are subjected to terrible crimes of rape and murder; which inevitably raises the question as to what has happened to the moral values of our society? Children should not be molested or become victims of crime, irrespective whether they are in the safety of their homes or playing on the streets; as there is simply no justification to exploit young and innocent children, irrespective of the circumstances they, or the accused persons, may find themselves in. The fact that the victim was still a small baby, who was raped in the safety of her own home by the accused, a known and trusted person to the family, are all aggravating factors, weighing heavily against the accused.

"The Courts are under a duty to send a clear message to the accused, to other potential rapists and to the community: We are determined to protect the equality, dignity and freedom of all women [and children I may add], and we shall show no mercy to those who seek to invade those rights."

In this instance, I believe society expects from this Court to impose a sentence that will not only reflect that regard was had to the interests of the accused, but also to that of society; and the seriousness of the crime committed. It does not mean to say that the interests of the accused carry no weight with the Court - only that it should not be attributed too much weight.

[13] The accused stands convicted of the offence of rape, read with the provisions of the Combating of Rape Act 8 of 2000, in circumstances where the victim is under the age of thirteen years and the accused more than three years older, for which the prescribed minimum sentence is one of imprisonment of not less than fifteen years for

[14] Given the circumstances of this case, I am satisfied that, despite accused being a first offender and him having been in custody awaiting trial for one-and-a-half years, the seriousness of the offence, coupled with the circumstances under which it was committed, warrants a sentence in excess of the prescribed minimum of fifteen years imprisonment. The aggravating factors by far outweigh the mitigating factors and a lengthy term of imprisonment seems inevitable. The circumstances of this case call for the deterrent and retributive objectives of punishment to be brought to the fore and that rehabilitation, as a sentencing objective, plays a minor role. However, I am of the view that the accused should not be sacrificed on the altar of deterrence, simply because of the prevalence of the crime; ultimately, it is the accused person in his unique circumstances who must be punished. Accused should be given the opportunity, once he has paid his dues, to prove to society that he has reformed and is therefore entitled, to once again, take up his position amongst them as a law-abiding citizen.

[15] In the result, the accused is sentenced as follows:

Twenty (20) years imprisonment of which three (3) years is suspended for five (5) years, on condition that the accused is not convicted of the offence of rape or attempted rape, committed during the period of suspension.

LIEBENBERG, J

ON BEHALF OF THE ACCUSED				Ms. G. Mugaviri

Instructed by:							 Directorate: Legal Aid

ON BEHALF OF THE STATE				Mr. Matota
Instructed by:						Office of the Prosecutor-General