Court name
High Court
Case name
S v S
Media neutral citation
[2007] NAHC 33











CASE
NO.: CC 06/2007





IN
THE HIGH COURT OF NAMIBIA





In
the matter between:








THE
STATE











and











V.N.S.











CORAM: MULLER,
J








Heard
on: 23 April 2007





Delivered
on: 24 April 2007









SENTENCE






MULLER,
J
: [1]
The accused was charged with a main count of contravening s 2(1) of
the Combating of Rape Act, No 8 of 2000, an alternative count thereto
and a second main count of assault with the intent to do grievous
bodily harm. The State only put the main charge on count 1, namely
the rape charge to the accused. The accused pleaded guilty to that
charge, with a qualification that he did not hit the complainant with
a stick, but only threatened to hit her with a stick before the
accused raped her. The defence counsel read out, and after
confirmation thereof by the accused, handed in a plea explanation in
terms of s112 (2) of the Criminal Procedure Act, No 51 of 1977. The
State accepted the accused’s plea and he was convicted accordingly.






[2]
The accused was represented by Mr Bondai of the Directorate of Legal
Aid and the State by Ms Nyoni. The doctor’s medical examination
report with regard to the complainant (Form J88), the accused’s
warning statement and the key and sketch plan of the scene of the
offence were handed in by agreement.





[3]
Mr Bondai did not call the accused to testify, but made submissions
of mitigation from the bar. The personal circumstances of the accused
are:







  • He
    was 16 years at the time at the time of the offence;



  • He
    is uneducated, never went to school and cannot read or write;



  • He
    herds cattle and tends the mahangu field of his parents;



  • He
    has a clean record; and



  • He
    showed remorse by pleading guilty.







Furthermore,
Mr Bondai submitted that 5 years have expired since the commission of
the offence and no explanation for this delay was offered. Because
the accused was not yet 18 when the offence was committed, Mr Bondai
submitted that the mandatory minimum sentence in terms of Act is not
applicable.






[4]
Ms Nyoni agreed with Mr Bondai that the mandatory minimum sentences
provided for the Act are not applicable, but referred the Court to
its decision in S v Tomas Nakale Case No.: 7/2007 delivered on
16 April 2007, where that accused was also under the age of 18, but
was sentenced for a similar offence to 15 years imprisonment of which
5 years were conditionally suspended. She also urged the Court to
take the expectations of society as expressed by Namibian Supreme
Court in S v Amutenya Shapumba, Case No.: SA 4/1999, delivered
17 November 1999, into consideration. Furthermore she submitted that
the complainant was only 8 years of age at the time, and on her way
to school, attempted to run away from the accused who accosted her,
was threatened to succumb by a stick, cried in vain and was finally
raped by the accused. S 3(1)(a)(iii)(bb) of the Act deals with the
situation of a girl under the age of 13 who is raped by an accused 3
years older than her for which offence a penalty of 15 years minimum
is prescribed. Ms Nyoni submitted further that the accused should be
treated in the same way as if this penalty of Combating of Rape Act
is applicable. The accused invaded the privacy of a female and took
her innocence away at such a young age. Finally, Ms Nyoni reminded
the Court of the other factors that should be balanced when arriving
at an appropriate sentence, despite the accused’s personal
circumstances, namely that of the nature of the offence involving the
circumstances of the victim and the interests of society.







[5]
When the Court considers what an appropriate sentence for the
accused should be, it takes into account the elements of retribution,
prevention, deterrence and reformation or rehabilitation and attempts
to incorporate a combination thereof in the sentence to be imposed.
Furthermore a balance of the circumstances relating to the accused
himself, the nature of the offence and the interest of society,
coupled with a blend of mercy is the aim that the Court attempts to
achieve by imposing an appropriate sentence. In this regard I refer
to S v Zinn 1969 (2) SA 573 (A) and S v Rabie 1975 (4)
SA 855 A.







[6]
The case of S v Tomas Nakale, supra, to which Ms Nyoni has
referred, is indeed very similar to this one. Although the
complainants and the accuseds ages in the 2 cases differ somewhat,
both complainants were very young and both accuseds were not yet 18
when the offences were committed. What makes this offence more
serious is that the accused used a stick to threaten the complainant
and after the complainant attempted to escape he committed this act
without heeding her crying. This is an indication that the accused
wanted to commit this heinous act and nothing would put to him off to
continue with it. His intention is clear and the use of a threat with
a stick to cause her bodily harm or to apply physical force,
constitute coercive circumstances in terms of s2 (2) (b) or (c) of
the Act, as proved by his admission. If the accused was over the age
of 18, a minimum mandatory sentence in terms of s3 (1)(a)(iii)(bb)
would have made him liable to a sentence of 15 years imprisonment.







[7]
I have duly considered all the personal circumstances of the
accused, as well as the fact that he pleaded guilty and the long
delay in bringing this matter to trial. I have also considered the
seriousness of the offence, as well as the interests of society. I
accept the submissions that the accused is not subject to the minimum
mandatory sentence, but despite that fact, I would not have imposed a
sentence of less than 15 years for this offence under the
circumstances and taking all these factors into account. Because the
accused is still young and may be rehabilitated, I shall suspend a
third of the sentence in the hope that such offence will never be
repeated.





[8]
The accused is sentenced as follows:






Imprisonment
of 15 years of which 5 years are conditionally suspended for a period
of 5 years, namely that he is not convicted of an offence of
contravening s2(1) of the Combating of Rape Act, No 8 of 2000,
committed within the period of suspension.


















__________



MULLER,
J









ON
BEHALF OF THE STATE: MS I. NYONI











INSTRUCTED
BY: OFFICE OF THE PROSECUTOR-GENERAL











ON
BEHALF OF THE DEFENCE: MR G. BONDAI











INSTRUCTED
BY: DIRECTORATE OF LEGAL AID