Court name
High Court Main Division
Case number
CA 58 of 2013
Title

Gomaseb v S (CA 58 of 2013) [2013] NAHCMD 366 (29 November 2013);

Media neutral citation
[2013] NAHCMD 366
Coram
Smuts J
Miller AJ










REPUBLIC
OF NAMIBIA




HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK





JUDGMENT








Case
no: CA 58/2013





DATE:
29 NOVEMBER 2013





REPORTABLE





In
the matter between:





DUSANTOS
GOMASEB.............................APPELLANT





And





THE
STATE..............................................RESPONDENT








Neutral
citation: Gomaseb v The State (CA 58/2013) [2013] NAHCMD 366 (29
November 2013)





Coram: SMUTS,
J et MILLER AJ




Heard: 25
November 2013





Delivered:
29 November 2013





Flynote:
Appeal against sentence of 6 years, of which 3 years were suspended
for 5 years on appropriate conditions for a contravention of s2 (1)
(a) of Act 8 of 2000 imposed by a regional magistrate. The appellant
was at the time of the commission of the offence 15 years and 1 month
old. He had also spent some 18 months incarcerated prior to
sentencing. But a severely aggravating feature of the crime
(comprising the insertion of his finger in the vagina of a girl of 5
years) was the tender age of the victim. The regional magistrate had
considered the personal circumstances of the appellant following a
social report being handed in before sentencing. The appellant did
not establish a misdirection or irregularity on the part of the
regional magistrate. Despite the age of the appellant, the sentence
does not induce a sense of shock, given the seriousness of the crime
and the interest of society in ensuring that severe sentences are
handed down for the statutory rape of young children at tender ages.








ORDER








That
the appeal is dismissed.








JUDGMENT








SMUTS
J





[1]
The appellant was charged with and pleaded guilty to the offence of
contravening s2(1)(a) read with ss1,2 (2), 2 (3), 3, 4, 5, 6 and 7 of
the Combating of Rape Act, 8 of 2000 (the Act) by a regional
magistrate in Mariental on 21 June 2011. On 15 September 2011, the
appellant was sentenced to 6 years imprisonment of which 3 years were
suspended for 5 years on condition that the accused is not convicted
of rape or attempted rape within the period of suspension. The
appellant’s appeal lies only against his sentence.





[2]
The primary thrust of the argument of Mr McNally, who appeared for
the appellant in this appeal, was that the regional magistrate failed
sufficiently to take into account the age of the appellant at the
time of the commission of the offence. The appellant was 15 years and
1 month when the offence was committed. Following his conviction, a
report by a social worker was obtained concerning the personal
circumstances of the appellant. It was established that he was the
first of five children and grew up in Gochas. He and his siblings had
been abandoned by their father at an early but unspecified age and he
had dropped out of school already in grade 5. The report stated that
the appellant did not appear to have fully developed his identity
which led to him making wrong choices. The report further pointed out
that the absence of a father figure in the appellant’s life had
made a significant impact. It was further stated in the report that
the appellant dreaded the prospect of imprisonment and had no sense
of emotional security after being abandoned by his father.





[3]
Mr McNally correctly acknowledged that the appellant had been
convicted of a most serious offence. The complainant in the matter
was a 5 year old girl. The appellant had been convicted of statutory
rape by inserting his finger in her vagina. There was medical
evidence from the doctor who had examined the complainant that she
had bled from the hymen and that her vagina was tender and that minor
abrasions on the right knee and shin were also found.





[4]
Mr McNally submitted that despite the very serious nature of the
offence, imprisonment of such a youthful offender should be a course
of last resort. He referred to the Convention on the Rights of the
Child which, in Art 37(b), states:





The
arrest, detention or imprisonment of a child should be used only as a
measure of last resort and for the shortest appropriate period of
time.’





This
Convention forms part of the law of Namibia, having been duly
ratified. I accept that this should be point of departure when
dealing with children. The appellant, being only 15 years and 1 month
at the time of the commission of the offence, certainly falls within
that category.





[5]
Mr McNally also referred to the fact that the appellant had spent
some 18 months in custody prior to being sentenced. He accordingly
submitted that an effective period of imprisonment to which the
appellant was sentenced was of the order of 54 months. He submitted
that the regional magistrate did not properly apply his mind to the
period of pre-trial incarceration and by failing to do so amounted an
irregularity. He submitted that the presiding magistrate also
committed an irregularity by failing to apply his mind to other
sentencing options.





[6]
Mr McNally also referred to several authorities concerning the
sentencing of youthful offenders and the need to avoid incarceration
where possible. The thrust of many of these cases spanning several
decades is to the effect that a court should guard against
overemphasizing the gravity of offence and the interest of society at
the expense of the personal circumstances of a youthful offender. He
also referred to Centre for Child Law v Minister of Justice and
Constitutional Development and Others1
where Cameron J stated:





But
while the Bill of Rights envisaged that detention of child offenders
may be appropriate, it mitigates the circumstances. Detention must be
a last, not a first, or even intermediate, resort, and when the child
is detained, detention must be “only for the shortest
appropriated period of time.” The principles of “last
resort” and “shortest appropriate period” bear not
only on whether prison is a proper sentencing option, but also on the
nature of the incarceration imposed. If there is an appropriate
option other than imprisonment, the Bill of Rights requires that it
be chosen. In this sense, incarceration must be the sole appropriate
option. But if incarceration is unavoidable, its form and duration
must also be tempered, so as to ensure detention for the shortest
possible period of time. In short, s 28(1)(g) requires an
individuated judicial response to sentencing, one that focuses on the
particular child who is being sentenced, rather than an approach
encumbered by the rigid starting point that minimum sentencing
entails. The injunction that the child may be detained only for the
shortest “appropriate” period of time relates to the
child and to the offence he or she has committed. It requires an
individually appropriate sentence.’





[7]
I respectfully agree with that approach. It also accords fully with
the Convention on the Rights of the Child. This approach has also as
to large extent been articulated by the courts of Namibia. Mr McNally
referred us to several cases including unreported cases of this court
stressing that extra care was needed in determining a suitable
sentence for young offenders and where imprisonment should be guarded
against where possible. 2
Mr McNally also submitted that a wholly suspended sentence would
achieve the purposes of sentence in this matter and submitted that
the sentence should be set aside and replaced by such a sentence.





[8]
Ms Esterhuizen for the State referred to the test to be followed by
courts of appeal in respect of appeals against sentence, namely that
the imposition of sentence is a matter within the discretion of a
trial court and that a court of appeal would only interfere with the
exercise of that discretion if the trial court misdirected itself or
perpetrated an irregularity or if the sentence was so inappropriate
so as to induce a sense of shock. Ms Esterhuizen submitted that the
appellant had failed to establish a misdirection or irregularity on
the part of the regional magistrate. Nor did the sentence induce a
sense of shock, so she submitted.





[9]
Ms Esterhuizen submitted that the aggravating feature of the serious
statutory crime of rape was that the complainant was a child of 5
years old when the offence was committed. This is indeed a gravely
aggravating factor. There is unfortunately very little material
before us concerning the circumstances of the commission of the crime
because of the plea of guilty.





[10]
Ms Esterhuizen pointed out that the regional magistrate had in fact
taken the 18 months period of pre-sentence incarceration into account
in his judgment. Ms Esterhuizen also pointed out that the regional
magistrate took the appellant’s youthfulness into account when
sentencing him and submitted that the regional magistrate accorded
sufficient weight to the appellant’s personal circumstances.





[11]
The regional magistrate has in this case provided detailed reasons
for the sentence, taking into account the personal circumstances of
the appellant set out in the social welfare report, his youthfulness,
being a first offender, his plea of guilty and his expression of
remorse expressed to the social worker. The court a quo also referred
to the serious nature of the offence aggravated by its perpetration
upon a child of such a tender age, correctly stating that sexual
abuse upon very young children evokes a sense of outrage in the minds
of right thinking persons. He concluded that a custodial sentence was
justified but should be ameliorated by suspending a portion of it.





[12]
Upon analysis of the approach of the regional magistrate, it would
not seem to me that he misdirected himself or perpetrated any
irregularity in the sentencing of the appellant. Although the
sentence may be considered somewhat harsh for a first offender who
committed the crime at the age of 15 years and 1 month, it certainly
does not induce a sense of shock because of the seriousness of the
offence compounded by the aggravating feature of being perpetrated
upon a child of 5 years old – such a tender and vulnerable age.
The crime of rape and especially the sexual abuse of young children
have rightly received special attention from the legislature in
enacting severe sentences for their perpetration in the Act. Despite
the youthfulness of the appellant and his other mitigating
circumstances, the seriousness of this crime justified the imposition
of a custodial sentence and falls within the category of last resort
contemplated by the convention. An effective three year term –
albeit on top of 18 months pre-sentence incarceration – does
not induce a sense of shock, given the aggravating feature of this
case.





[13]
The appellant has not, despite Mr McNally’s best endeavors,
established any misdirection or irregularity in sentencing. Nor does
the sentence induce a sense of shock.





[14]
It follows that the appeal is dismissed.








DF
Smuts





Judge





I
agree





P
J Miller





Acting
Judge








APPEARANCES





APPELLANT :P
McNally






Instructed by Lentin, Botma & Van den Heeven








RESPONDENT: K
Esterhuizen






Instructed by Office
of the Prosecutor-General






12009
(2) SACR 477 (CC) at 491 (par 32 and 33).




2See
S
v Erickson

2007 (1) NR 164 at 166;
Shikesho
v The State

CA 111/2008 delivered on 13/10/2008;
S
v Amunyela
,
unreported, delivered on 3/03/2010;
S
v Swartz

case number CC 8/2010, delivered on 18/11/2011.