Court name
High Court
Case number
CC 3 of 2007
Case name
S v Kanyuumbo
Media neutral citation
[2007] NAHC 34











CASE
NO.: CC 03/2007





IN
THE HIGH COURT OF NAMIBIA








In
the matter between:








THE
STATE











and











FANUEL
KANYUUMBO











CORAM: MULLER,
J








Heard
on: 24 – 25 April 2007






Delivered
on: 26 April 2007








SENTENCE






MULLER,
J.:
[1] In this case Ms Nyoni represented the State and Ms
Natanael, instructed by the Directorate of Legal Aid, appeared for
the accused.







[2]
The charge of contravening s 2(1) of the Combating of Rape Act, No 8
of 2000 (the Act) was put to the accused. He pleaded guilty to the
charge and Ms Natanael read out an amended plea explanation in terms
of s 112 (2) of the Criminal Procedure Act, No 51 of 1977 (CPA). It
was confirmed and signed by the accused. The plea explanation was
amended to include coercive circumstances after Ms Nyoni indicated
that the plea of not guilty will not be accepted by the State without
an admission to that effect. The Court also indicated that because
coercive circumstances, together with the intention of rape
constitute the offence in terms of s 2(1) of the Act, and a plea of
guilty without the admission of coercive circumstances, will not
accepted. After such amendment of the plea explanation, the State was
prepared to accept the accused’s plea of guilty and led the
evidence of the doctor who examined the complainant after the
incident.







[3]
Dr Anguel Madjaron, qualified in Bulgaria and has 15 years
experience and was a medical officer at Eenhana Hospital. He
testified that he conducted the medical examination on the
complainant on 28 October 2005 and completed the medical examination
report, form J88. The doctor commenced his evidence by providing a
general introduction of the complainant’s behaviour at the
examination. He testified that a very frightened and hysterical
little girl of 6 years old was brought to him by the police. It was
alleged that she was raped and she was accompanied by her mother.
Despite efforts by her mother, a nurse and the doctor to calm her
down so that the doctor could conduct the medical examination, it was
no possible. She hid hysterical in a corner. With the permission of
her mother she was put to sleep by way of an anaesthetic. The doctor
then conducted his examination. He found that there was blood in the
vestibule of her vagina and that her hymen was perforated. The
opening of the vagina of a child of that age should not even allow
penetration of one finger, but the doctor found that 1-2 fingers
could so penetrate. Laceration of the hymen, which is normally intact
in a woman until the first penetration, also indicated, cumulatively
with the other findings, consistency with the allegation of rape.
This was not the only finding of penetration of the complainant’s
body. Her anus was wide open, while it is normally closed in any
person. It allowed penetration of 2-3 fingers, while the anus of even
an adult would not allow the penetration of a finger. There were also
lacerations or cracks in the area of the complainant’s anus. These
injuries could only have been caused by penetration and is also
consistent with forceful entry though the anus. According to the
doctor such penetrations as he found, must have been painful and the
conduct of the complainant before the examination indicates emotional
stress.







[4]
After the State presented medical evidence of the examination on the
complainant, the Court convicted the accused of rape, namely a
contravention of s 2 (1) of the Act.







[5]
The accused did not testify in mitigation, but his legal
representative made certain submissions. These submissions included
his personal circumstances:








  • The
    accused is 23 years old and was 21 years at the time when he
    committed the offence of which he was convicted.



  • In
    respect of this kind of offence he is a first offender, although he
    is presently in prison serving a sentence for the discharge of a
    firearm, which previous conviction he admitted.



  • He
    became the breadwinner after his father died and as I understand it,
    he contributed to the support of 13 minor siblings.



  • It
    was submitted that he has remorse for his deed and ask the
    forgiveness of the complainant and her family.



  • He
    averred that he reported the incident himself to the police.



  • He
    further alleged that alcohol contributed to the commission of this
    offence.








[6]
Ms Nyoni commenced her arguments in mitigation by calling the
complainant into Court so that the Court could see her. She was not
required to testify . My observation is that she is a small girl,
even for her age, which is now 8 years.







[7]
Ms Nyoni accepted that the accused saved the Court’s time by
pleading guilty, but submitted that his personal circumstances cannot
weigh up to the seriousness of the offence, which includes the brutal
rape on such a young complainant, as well as the interests of
society. The young age of 6 years and the fact that she is very small
are important factors to be considered. The injuries that the doctor
found, the effect of the rape on this young child, whose examination
had to be conducted in the way the doctor described, and that the
complainant was a very frightened young girl, aggravates the offence.
Furthermore, Ms Nyoni submitted that the accused not only raped her
he also violated her through penetration of her anus. She submitted
that the life of an innocent girl has been changed forever by the
conduct of a grown-up man. Ms Nyoni argued that this kind of offence
is not tolerated by society and that the Namibian Supreme Court in
the case of
S
v Michael Katamba,

Case No 2/1999, warned that a too heavy emphasise is often placed on
the circumstances of the offender, while that of the victim receives
little attention. She further referred the Court to the seriousness
with which the legislator regard such offences as expressed in the
Combating of Rape Act. In this case there were coercive circumstances
as admitted by the accused. Ms Nyoni submitted that the penalties
contained in the Act are minimum sentences and that only a heavier
sentence would be an appropriate sentence in the circumstances to do
justice to the complainant and constitute a balanced sentence.







[8]
The Court called the mother of the complainant and asked her certain
questions. E.H. testified that the complainant is one of four
children. The ages of her other children are 18, 11 and 4 years. She
observed that since the incident the complainant has an abnormal
release of wind for instance. The complainant is still frightened and
in particular of men. She wets her bed, which she never did before
the incident. E. withheld any suggestion of what should happen to the
accused and said she leaves it in the discretion of the Court. Both
counsel were allowed to question him and to submit further arguments.
Only Ms Nyoni made use thereof and submitted that the Court should
consider the evidence in respect of the psychological effects of the
offence on the complainant.







[9]
I am aware of all the factors that the Court should consider in its
objective to impose a balanced and well considered sentence on the
accused before him, namely the personal circumstances of the accused
himself, the nature of the offence and the interests of society. To
round this off, it has been suggested that such mercy as the Court
may find, in its discretion, may be included. (See:
S
v Zinn

1969 (2) SA 537 (A) and
S
v Rabie

1975 (4) SA 855 (A)). The function of imprisonment contains usually
the elements of retribution, prevention, deterrence and reformation
or rehabilitation and the Court attempts to incorporate these
elements in its sentence.







[10]
I refer to the elements of sentence before. In
S
v Ndlovu

1967 (2) SA 230 (R) Young, J said:







The object of
punishment is to hurt the offender and to hurt him sufficiently to
prevent him committing a similar offence.”







The
accused is punished for his offence and imprisonment for a long
period is part of the retribution that society would expect. This
also shows to those who suffered by his conduct, the complainant in
particular, as well as her family and the community, that he is
punished for what he has done and that justice has been done.
Imprisonment also serves the purpose of prevention and deterrence,
namely to withhold the convicted accused from committing such an
offence in future. Imprisonment is also aimed at deterring other
members of society from committing such offences and it protects
society by prevention not only against the particular offender, but
also by removing the offender from the community. Finally, the
rehabilitation or reformation function should not be forgotten.
Hopefully the convicted person will be rehabilitated whilst in
prison.







[11]
I take cognizance thereof that the accused preferred not to testify
in mitigation, but rather elected to provide the Court with some
mitigating factors. The personal circumstances of the accused are in
fact only 2, namely his age and that he contributes to the support of
13 minor siblings. The age of the accused does not carry much weight
as a mitigating factor. He was already 21 and is regarded as an
adult. He certainly knew what was right or wrong and could have
appreciated the effect of his deed. I have no doubt that he knew he
cannot have sex with a small child of that age, namely 6 years old.
He was more than 2½ times older than she was. The fact that he
is sorry that he committed this offence and that he wants to
apologise to the complainant and her family for what he did, is in
my opinion something that could only be considered as a mitigating
factor, if he had said so himself in evidence. In any event, to feel
sorry now and apologise now for such a terrible offence does not
carry much weight as a mitigating factor. He further provided the
excuse of alcohol as a factor which apparently contributed to this
conduct. It is the first and only time that the influence of alcohol
on his deed has been mentioned and to carry any weight, he should
have testified and subjected himself to cross-examination to
determine the amount of alcohol he consumed, the effect thereof, etc.
This he preferred to do. I am justified to ignore this factor
entirely. No other factor was submitted in mitigation. The accused’s
previous conviction is not applicable, except that it has been
committed since this offence and that he is presently serving a
sentence of 10 months imprisonment.






[12]
The offence is very serious. Not only was a very small young girl’s
privacy invaded and her innocence forever taken away, the offence was
committed in the most brutal manner. She was raped and the accused
also penetrated her anus as he admitted. This constituted two acts of
penetration. This also caused what appears to be permanent physical
harm and the psychological and emotional effects are still present to
such an extent that she still frightened and wets her bed. There is
no doubt that she will need psychological and other professional help
in the future. There may also be physical damage that needs urgent
medical attention. In respect of the offence, the accused made the
following admissions in his plea explanation in paragraphs 2 to 5,
which I quote hereunder verbatim:







2. I plead guilty
to the main charge of committing a sexual act with a child under the
age of fourteen years.



3. I admit that on
the 22nd of October 2005 and at or near Onakamwandi
village in the district of Eenhana, I did wrongfully, unlawfully and
intentionally committed a sexual act with A.S.S. by inserting my
penis into her vagina and anus.



4. I admit that
applied physical force to the complainant by removing her shorts and
panties and threatened to kill her.



5. I knew that the
complainant was 6 years old at the time and under the age of fourteen
whilst I was 21 years old, thus 3 years older than the complainant.”







[13]
I agree with Ms Nyoni that there existed coercive circumstances. S 3
(1)(a)(iii)(bb)(A) of the Act provides for a sentence of 15 years for
an accused having committed a “sexual act” with the complainant,
while she was under 13 and he was 3 years older.. The complainant was
also by virtue of her age “exceptionally vulnerable” in terms of
subsection (B) of that statutory provision. The age difference at the
time between the complainant and the accused was 15 years, but what
is important is that she was only 6 years old. I agree with Ms Nyoni
that the seriousness of the offence, coupled with the circumstances
of the victim of this heinous crime, warrants a sentence in excess of
what the legislator provided.











[14]
The third factor is the interest of society. I notice that several
people of the community attend this session of Court in this case.
The society looks upon the Court to prevent persons to take the law
in their own hands and to maintain law and order. Society requires
the Court to protect its members, in particular those that are
vulnerable, like innocent children. In this instance, I believe
society will expect the Court to impose a sentence that takes all the
other factors into consideration and that the sentence mentioned,
will be warning to all other Namibians that if they will be severely
punished if convicted for this type of offence.







[15]
Taking all the factors of the personal circumstances of the accused,
the crime and interests of society into consideration in respect of
this particular accused, as discussed earlier, I have no doubt at all
that a long period of imprisonment is the only sentence that will be
balanced one. Such a long term of imprisonment will also comply with
the elements of retribution, deterrence and reformation. I totally
agree with Ms Nyoni’s submission that the sentence for this type
offence contained in the relevant penalty provision of the Act is
only a minimum and to impose that minimum sentence for this accused
and this offence, will not do justice. I should consequently impose
the sentence that I believe is a balanced sentence, but which is in
excess of the minimum sentence provided for in the Act of 15 years
imprisonment.







[16]
The accused is sentenced to 21 years imprisonment.















_________



MULLER,
J














ON
BEHALF OF THE STATE: MS I. NYONI





INSTRUCTED
BY: OFFICE OF THE PROSECUTOR-GENERAL








ON
BEHALF OF THE DEFENCE: MS R. NATANAEL





INSTRUCTED
BY: DIRECTORATE OF LEGAL AID