THE STATE V
E M SHIKONGO
will interfere in sentence.
of a sentence for the Sodomy of two children the sentence was
increased from one year to three years but two years suspended as
the Accused was already out of prison.
NO. CA 83/98 IN THE HIGH COURT OF NAMIBIA
the matter between:
M SHIKONGO RESPONDENT
this matter the appellant is represented by Mr Advocate January and
the respondents is represented by Mr Advocate Walters.
is an appeal brought by the State in terms of Section 310(1) as read
with Section 310(2) of Act 51 of 1977. Leave to appeal having been
granted to the State by His Lordship Mr Justice O'Linn. The appeal
is against sentence only. The respondent who was the accused in the
Lower Court was found guilty on two counts of sodomy.
one instance the victim, a boy was 7 years old, and in the other
instance also a boy the victim was 12 years old.
sentence which the Magistrate imposed was 12 months imprisonment.
offences took place on two different occasions but the magistrate
treated them as one for sentence.
is pre-eminently, a matter for the discretion of the trial Court and
the right of a Court of appeal to interfere therewith is limited.
The Court of appeal will however interfere where a trial Court has
not exercised it's discretion judicially. This occurs where the
trial Court misdirected itself in respect of sentence or where the
sentence is so startling or disturbing and inappropriate that an
inference can be drawn that the court
a quo did
not apply it's judicial mind.
this matter the Learned Magistrate has submitted his reasons for
sentence. It appears therefrom that he failed to take into account
the ages of the victims and that in respect of the elder boy the
victim resisted and that he was forced to submit. Furthermore, he
threatened to kill the boy if he should complain about the offence.
Obviously the child of 7 could not consent. The Learned Magistrate
also appears to have overlooked the fact that both offences,
although on different occasions, took place in the veld while the
victims were herding cattle or goats, making them far more
vulnerable than under other circumstances where the offence may have
been taking place in a village or town. For these reasons this Court
is entitled to interfere in the sentence. It must however, be borne
in mind that to re-arrest the accused, who has already served his
sentence, would be grossly unfair and unjust. -Furthermore, when
these offences were committed, the accused was 16 years of age. In
terms of the legislation concerning statutory rape of girls, where
an accused is under 16 years, this fact is a complete defence.
Therefore, if he is 16 it would be a mitigating factor. The court
a quo overlooked
the fact that the accused had committed the same type of crime on
two different occasions in very similar circumstances, namely in the
veld where the victims were herding animals, and the sentence
therefore, in addition to its other purposes, must also be directed
at deterring him from repeating the same offences.
part of the sentence frequently acts as a deterrent. The sentence is
in my view far too lenient and must be altered to 3 years
imprisonment, 2 years whereof should be suspended for 5 years on
condition that during such time the accused is not found guilty of
committing the crime of sodomy. The sentence should be ante-dated to
of August 1998.
Just a short point or correction of fact. Judge O'Linn refused to
certify the proceedings and I granted leave to appeal. Subject
thereto I agree. Accordingly the order of this Court is
Appeal is upheld. The sentence is altered to three years
imprisonment, two years to be suspended for 5 years on condition
that during such period the accused is not found guilty of
committing the crime of sodomy. The sentence is ante-dated to 13