Court name
Supreme Court
Case name
S v JB
Media neutral citation
[1970] NASC 25
Judge
Shivute CJ










IN THE SUPREME COURT OF
NAMIBIA





CASE NO.: SA 18/2013





DATE: 13 NOVEMBER 2015





REPORTABLE





In the matter between





THE
STATE...............................................................................................................................Appellant





And





JB.............................................................................................................................................Respondent





Coram: SHIVUTE CJ, STRYDOM AJA and
MTAMBANENGWE AJA





Heard: 1 November 2013





Delivered: 13 November 2015





APPEAL JUDGMENT





SHIVUTE CJ (STRYDOM AJA and
MTAMBANENGWE AJA concurring):





[1] In this appeal by the State against
sentence with the leave of the trial court, the respondent was
convicted in the High Court of assault read with the provisions of ss
1(1)(a)(i) and (ii), 2(1)(b), 3(1), 21, 25(1) and (3) of the
Combating of Domestic Violence Act Act 4 of 2003 as well as the first
schedule thereto. This was preferred as the first count in the
indictment. He was also convicted on the second count, being of rape
in contravention of section 2(1)(a) read with ss 1, 2(2), 3, 5, 6 and
7 of the Combating of Rape Act 8 of 2000 and further read with ss
2(1)(a)(i) and (ii), 2(1)(b), 3(1), 21(1), 25(1) and (3) as well as
the first schedule to the Combating of Domestic Violence Act 4 of
2003.





[2] He was sentenced to one (1) year
imprisonment in respect of the first count and to fourteen (14) years
for the rape count. It was ordered that the sentence of 1 year
imprisonment run concurrently with the sentence imposed on the second
count.





[3] While the draft judgment was under
consideration, I received a petition in the matter of S v LK, Case No
P 1/2014, in which a question of whether it was competent for the
State to appeal to the Supreme Court against sentence only imposed by
the High Court arose. In light of initial divergence of opinion
during the consideration of the petition in chambers, I decided to
refer the petition for full arguments in open court. It was also
considered apposite that the judges who sat with me in this appeal
also constitute the panel that would hear and decide the petition. As
we considered that the outcome of the petition may have a bearing on
the present appeal, judgment in this appeal was stayed pending the
outcome of the petition. The parties to the appeal were informed of
the developments and counsel were invited to file heads of arguments
on the questions raised by the court in the petition should they be
so minded or advised.





[4] Judgment in the petition in S v LK
is being handed down together with the judgment in this matter. It
was held in LK that the State has the right to appeal outright
against any sentence imposed by a judge of the High Court subject to
it obtaining leave to appeal and that as such the State was entitled
to petition the Chief Justice for leave to appeal even though such
leave concerned only the sentence imposed by the High Court. In light
of this finding, the outcome of the petition now grants us the
opportunity to dispose of the appeal. I accordingly propose to deal
with the merits thereof.





[5] It is a trite principle that
sentencing is pre-eminently a matter for discretion of the sentencing
court and that a court of appeal may interfere with that court's
exercise of discretion only if such discretion was not exercised
judicially or where it is found that the sentence imposed is vitiated
by an irregularity or misdirection or is disturbingly inappropriate.
(S v Shikunga 1997 NR 156 (SC) at 173B-E; S v Van Wyk 1993 NR 426
(SC) at 447G-J.)





[6] The appellant advanced six grounds
of appeal on the basis of which it contended that the trial court
misdirected itself, alternatively erred in law and/or in fact in
imposing the sentences. It contended that the presiding judge did
this by:





'(a) Finding that the fact that the
respondent spent 11 months in custody pending his trial singularly
constitutes substantial and compelling circumstances justifying a
departure from the mandatory minimum sentence prescribed by the
Combating of Rape Act;





(b) Determining the existence of
substantial and compelling circumstances based on the personal
circumstances of the respondent to the exclusion of all other factors
normally taken into account in sentencing;





(a) Finding that there were substantial
and compelling circumstances that warranted a departure from the
prescribed mandatory minimum sentences when, from the court's own
finding, the circumstances of the respondent were far outweighed by
the circumstances of the offences and the interest of society;





(b) Departing from the mandatory
minimum sentences prescribed by the Combating of Rape Act for flimsy
reasons;





(c) Ordering the sentence of 1 year
imprisonment imposed in respect of the assault charge to run
concurrently with the sentence imposed on the charge of rape; and





(d) Imposing a sentence that is
shockingly lenient when the circumstances of the respondent are
weighed against the circumstances of the offence as well as the
interest of society.'





[7] Where a perpetrator has been
convicted of having committed a sexual act with a complainant who is
under the age of 18 years and the perpetrator is the complainant's
parent as in this case, s 3(1)(a)(iii)(cc) of the Combating of Rape
Act, 2000 prescribes a minimum sentence of 15 years imprisonment. A
court may, however, impose a lesser sentence if it is satisfied that
‘substantial and compelling circumstances’ exist
justifying a departure from the prescribed minimum sentence. The
sentencing court should enter those circumstances on the record of
the proceedings and may then impose such a lesser sentence. (Section
3(2).)





[8] The trial court found that there
were substantial and compelling circumstances present justifying a
departure from the prescribed minimum sentence and so it imposed as
previously stated, a sentence of 14 years on the second count. The
trial court identified what in its view amounted to such
circumstances by stating as follows:





'It is trite that the period the
accused spends in custody, especially if it is lengthy, is a factor
which normally leads to a reduction in sentence. You spent 11 months
in custody and I consider that to constitute substantial and
compelling circumstances to justify a departure from the mandatory
sentence.'





[9] Although the trial court appears to
have taken into account the other factors and circumstances
traditionally considered in sentencing, it apparently singled out the
fact that the respondent had spent 11 months in custody awaiting the
finalisation of his trial as the substantial and compelling
circumstance justifying a departure from the imposition of the
prescribed minimum sentence of 15 years. It is not surprising
therefore that the first four of the appellant's grounds of appeal
appear to have been directed at the above finding. Indeed, counsel
for the appellant readily conceded that this finding by the trial
court was the principal reason why the appeal was lodged.





[10] I may deal with the consideration
of ground 5 of the appellant's grounds of appeal above at the outset.
It has no merits at all since it is clear that the crime of assault
was committed more or less at the same time as the offence of rape
and the trial court was correct in ordering it to run together with
the sentence on the rape count. Furthermore, the sentence on the
second count does not appear to be 'shockingly lenient'. The
difficulty is that it appears discordant with the provisions of s
3(2) of the Combating of Rape Act, 2000 and the question is whether
that is justified on the facts. This aspect is dealt with below.





[11] As mentioned before, the minimum
sentence prescribed in s 3(2) of the Combating of Rape Act, 2000 can
be departed from only where the sentencing court finds that
substantial and compelling circumstances exist to justify such
departure. What may amount to 'substantial and compelling
circumstances' in a particular case has been discussed by the High
Court in a number of cases including S v Lopez 2003 NR 162 (HC); S v
Gurirab 2005 NR 510 (HC); and S v Limbare 2006 (2) NR 505 (HC). I am
satisfied that the principles established in those decisions
constitute good law. As such it is not necessary, on the facts of
this appeal, to embark on a detailed discussion of the principles set
out in those cases. It is necessary nevertheless to emphasise that in
an attempt to make a value judgment as to whether there are
substantial and compelling circumstances present in a given case, a
court is required to take into account all the factors relevant to
sentencing and that it should refrain from finding that a particular
set of facts amount to ‘substantial and compelling
circumstances’ just because in its view the prescribed minimum
sentence appears to be harsh or because of some sympathy towards the
accused or even an aversion to minimum sentences in general. Where
there are no 'substantial and compelling circumstances' present, a
court is under a statutory obligation to impose the prescribed
minimum or a higher sentence where the facts of the case call for the
imposition of such a higher sentence. As the adage goes, each case
must be considered on its own facts.





[12] As already mentioned, in the
present case the trial court determined that the fact that the
respondent had spent 11 months awaiting the finalisation of his trial
alone constituted 'substantial and compelling circumstances'. This
cannot be accepted as correct. Although the period that an offender
has spent in custody awaiting the finalisation of his or her trial,
especially if lengthy, is a factor normally taken into account in
sentencing, in the circumstances of this case such a period cannot by
itself constitute 'substantial and compelling circumstances'. The
trial court also found that the respondent's personal circumstances
were outweighed by the crimes he had been convicted of. In light of
this finding, the trial court misdirected itself in finding at the
same time that the one personal circumstance namely, the period of
custody awaiting the finalisation of his trial amounted to
substantial and compelling circumstances. Such misdirection on a
material aspect on sentencing leaves this court at large to consider
the sentence afresh and it is to this aspect that I propose to turn
next.





[13] It is generally accepted that
sentencing is the most difficult aspect in a criminal trial. It
involves a delicate act of seeking a balance between three competing
factors, namely the offender, the crime and the interest of society.
As courts have repeatedly pointed out, it is unavoidable that in
seeking to balance these competing factors, one or other of them may
be emphasised at the expense of the others. It remains now to
consider the crimes.





[14] The evidence led at the trial
establishes that the respondent, the biological father of the
complainant, arrived home late from an outing. He was seemingly under
the influence of alcohol. An argument ensued between the respondent
and the complainant's mother. The respondent took the complainant's
mother into a room where the complainant was asleep. The complainant
was awoken by the noise generated by the quarrel and upon the
respondent noticing the complainant's presence in the room, he
physically attacked her. She ran out of the room following her mother
who had run out first. The complainant ended up at a neighbouring
house with the respondent in pursuit. In spite of pleas from the
neighbour to leave the complainant alone, the respondent beat up the
complainant and pushed her back to his house. He took her into a room
and pushed her onto a bed, undressed her and proceeded to commit a
sexual act on her. Neighbours who were attracted to the scene by,
amongst others, the complainant’s screams, witnessed the
despicable act by peeping through a window or through holes in the
corrugated iron sheets with which the room was constructed. The
police were called to the scene and the respondent was arrested and
taken into custody.





[15] The respondent's personal
circumstances are that he was 47 years old at the time of the
sentence. He was orphaned at the age of 14 and following the death of
his parents was placed under the care of his brother. He attended
school up to Grade 6 only after which he worked as a farm hand until
the age of 20. He is married to the complainant's mother. At the
time of his arrest the respondent was employed as a farm worker and
was the sole bread winner in the family. As previously stated, he
spent 11 months in custody before the conclusion of the trial and his
sentencing. The respondent has a number of previous convictions that
were more than 10 years old. The presiding judge was therefore
correct in not taking them into account in the process of sentencing.





[16] I agree with the court below that
the respondent's personal circumstances were by far outweighed by the
seriousness of the crimes, particularly the offence of rape and the
utterly brazen and appalling manner in which the crimes were
committed. The assault on the complainant was gratuitous and
unprovoked. Incidents of domestic violence against women and children
are notoriously prevalent in our society and as such our courts are
under a duty to ensure that offenders convicted of such crimes are
dealt with to the fullest extent of the law. The trial court was
correct in its characterisation of the crime of rape as heinous,
particularly because it was committed by a father against his own
daughter. The complainant was understandably distraught when
testifying. This state of affairs persisted even at the time she
testified in aggravation of sentence. She broke down while
testifying both in the main trial and aggravation of sentence. Asked,
perhaps rhetorically, why she was so upset and broke down during her
testimony, the victim replied:





'It hurts me a lot that my biological
father could have done something like this to me.'





[17] I do not find that the cumulative
impact of the factors and circumstances normally taken into account
when sentencing offenders is such that it justifies the departure
from the mandatory minimum sentence prescribed by the Act. In my
view, therefore, there are no substantial and compelling
circumstances present in this matter justifying a departure from the
prescribed minimum sentence in respect of the count of rape. I
consider that the prescribed minimum sentence would be an appropriate
sentence in the circumstances of the case. I would accordingly
impose the minimum sentence.





[18] I agree with the presiding judge
that the sentence on count 1 should be ordered to run concurrently
with the sentence imposed on the second count. Although the assault
preceded the rape, there is no doubt that the two incidents are
intertwined. They occurred more or less in the same space and time.
As earlier alluded to, it is not a misdirection to order the sentence
on the first count to run concurrently with the sentence imposed on
the second count.





[19] I would accordingly make the
following order:





1. The sentence of one (1) year
imprisonment imposed on the respondent in respect of count 1 is
confirmed.





2. The sentence imposed on the
respondent in respect of count 2 is set aside and for it is
substituted the following sentence:





'Fifteen (15) years imprisonment.'





3. The sentence of one (1) year
imprisonment imposed on count 1 is to run concurrently with the
sentence of fifteen (15) years imposed on count 2.





4. The sentence is antedated to 28 June
2012.





SHIVUTE CJ





STRYDOM AJA





MTAMBANENGWE AJA





APPEARANCES





APPELLANT:





RESPONDENT: I M Nyoni





For the State





B B Isaacks





Instructed by the Director of Legal
Aid.