Court name
High Court
Case number
CC 23 of 2010
Title

S v Mateus (CC 23 of 2010) [2011] NAHC 70 (14 March 2011);

Media neutral citation
[2011] NAHC 70






























CASE
NO.: CC 23/2010







IN
THE HIGH COURT OF NAMIBIA



HELD
AT OSHAKATI



In
the matter between:


THE
STATE





and





PETRUS
MATEUS















CORAM:
LIEBENBERG,
J.







Heard
on:
March
11, 2011.



Delivered
on:
March
14, 2011.










SENTENCE















LIEBENBERG,
J.:
[1]
The accused, an adult male, was earlier convicted on his



plea
of guilty on a charge of rape, read with the provisions of the
Combating of Rape Act, 2000 (Act 8 of 2000). We have now come to the
stage where the Court needs to consider what sentence would be
suitable and just to impose upon the accused.



[2]
It seems common cause that the accused was twenty-eight years of age,
whilst his victim was a one year old girl. Accused's plea is based on
the following admissions: On the 1
st
of
November 2001 he went to the house where the victim resided with her
mother to collect money, and during the course of the afternoon, he
'approached' the baby girl lying naked on a blanket; and after
unzipping his trousers, he had sexual intercourse with her.











[3]
The victim was medically examined at St. Martin Hospital, Oshikuku
that same day, and from a medical report compiled by a certain doctor
Baluti Kongo handed in by agreement, the following noteworthy
findings were made: The hymen was absent; the vagina admitted two
fingers; white thick discharge present. The doctor described the
examination as 'easy' and noted under remarks, 'impression of
penetration in child's vaginal canal'. These findings confirm the
accused's admission that he indeed penetrated the victim.







[4]
When it comes to sentencing, the Court has a judicial discretion as
to the nature of the sentence to be imposed; and this process is
guided by well-established judicial principles where regard is had to
the personal circumstances of the offender, the crime, and the
interests of society.1
In addition thereto, regard must also be had to the objectives of
punishment because ultimately, it is the accused, within his unique
situation, that needs to be punished.2
This would require a process where the interests of the accused are
weighed up against the interests of society; and although all factors
relevant to sentence must be considered, it does not require that it
should be given equal weight, as a situation may arise where one has
to be emphasised at the expense of the other.3
As was stated in
S
v Rabie4:
"Punishment should fit the criminal as well as the crime, be
fair to society, and be blended with a measure of mercy according to
the circumstances."



















[5]
Accused gave evidence in mitigation and placed his personal
circumstances before the Court, which are the following: Despite the
accused's age reflected on the indictment being twenty-eight years,
he was unable to confirm this in Court. This notwithstanding, from
his appearances, I am satisfied that he is an adult person. He did
not receive any formal education and was raised by an aunt of his as
both his parents are deceased. He has an elder brother, in whose
house he is currently staying; as the brother works permanently in
Walvis Bay. Accused makes a living from cultivation and the income he
received during last year for fencing work he did for others. This is
clearly not a full-time occupation from which he can make a living.
He is a first offender and admitted that what he has done was wrong
and that he was sorry for that. He was at a loss for words as to the
sentence he should be given. Before being released on his own
recognisance, he was in custody for one-and-a-half years.



















[6]
I enquired from the prosecution why it took over ten years to bring
the case to trial, but Mr.
Matota
was
unable to come up with any explanation. There is nothing suggesting
that the delay was brought about by any wrongdoing on the accused's
part. It seems unthinkable to take over ten years to finalise
pre-trial proceedings in a case as simple as the present; where the
accused's agony for having to wait that long to have the case tried,
is unduly protracted - more so, where he intended pleading guilty.
Could it reasonably be expected from a person in the accused's
position to put his life on hold for such a long period? I believe
the answer to that question lies in the negative as an accused in
terms of Article 12 (1)(b) of the Constitution has a right to be
heard by a court of law within a reasonable time, failing which the
accused shall be released. In the absence of any explanation by the
prosecuting authority explaining the unreasonable delay, this, in my
view, would be a factor to be taken into consideration in sentencing,
weighing in favour of the accused.



















[7]
Mr.
Matota
contended
that little weight, if any, should be given to the accused's
expression of remorse, as it cannot be seen to be genuine because, in
his view, it comes too late. He argued that the accused should have
expressed remorse immediately when confronted by Maria Mwatila, the
victim's mother, shortly after the incident. Mwatila testified that
the accused at first denied any wrongdoing, but when they came to the
police, he admitted guilt. It is common cause that the accused, ever
since, acknowledged his guilt; which eventually culminated in him
pleading guilty to the charge. In evidence in mitigation he said that
he knew that what he did was wrong and that he was remorseful
('sorry'). It was also submitted that the accused's plea of guilty
should not readily be seen as a sign of remorse, as he was left with
no choice.



















[8]
I am mindful that contrition, as an indication that the accused will
not again commit the offence, is an important factor to be taken into
consideration insentencing, but, in order to be a
valid
consideration,
it must be sincere
(S
v
Seegers5).
Furthermore,
that there may be instances where it is clear to the accused that
there is no way out and therefore, he pleads guilty. A guilty plea
under those circumstances should not be given too much weight,
unless
accompanied
by genuine and demonstrable expression of remorse
(S
v
Landau6).
I
am unable to agree with Mr.
Matota
on
this point, as I fail to see why the Court should find that the
accused's expression of remorse was
not
genuine,
simply because he did not immediately admit his guilt the moment he
was confronted by Mwatila. This would imply that an accused who does
not immediately admit his guilt, could not be seen to have genuine
remorse; an assumption I find without merit and untenable. In this
case the accused did not only admit his wrongdoing from an early
stage, but also took the Court into his confidence and testified,
expressing himself in the simplest of way, by saying he was sorry.
What more could be expected from him? I suppose he could have
approached the victim's family and asked for their forgiveness; but
can it be said that, because he did not do that, therefore, his
expression of remorse was not genuine? I believe not. Thus, I am
satisfied that the accused was honest and that his expression of
contrition was indeed sincere.



















[9]
The offence of rape in itself is considered to be serious - more so,
when the victim, a one year old child, is subjected to such a heinous
crime. I will bear in mind that it does not appear from the mother's
testimony or the medical record, that the victim suffered any
physical harm - which, in the circumstances, is almost
incomprehensible. Whereas no physical injuries, other that the broken
hymen, were observed, it would imply that minimal force accompanied
the sexual act. This notwithstanding, there is another form of pain
the victim, now ten years old, has to endure; which is truly
unfortunate. That is, that presently at school, she is teased and
mocked by fellow pupils, as to her having been raped as a baby, by
the accused. This demonstrates the collateral psychological suffering
endured by rape victims, even long after they fall victim to rape -
even where the parents
in
casu,
tried
to keep this away from the victim. It underscores the need to assist
rape victims afterwards to come to terms with such an horrific
ordeal; or as in this case where a child is simply too young to
recall the incident independently but it is later brought to her
attention -to assist these young children to deal with and overcome
psychological issues arising from the incident i.e. to assist this
child to overcome the scorn and contemptuous treatment she receives
from fellow pupils. To that end the Ministry of Gender Equality and
Child Welfare should be approached by the child's mother, for
assistance and to arrange counselling for the victim.



















[10]
It is clear from the accused's audacious conduct to have sexual
intercourse with the baby left behind in the room by the mother when
taking a bath, that he merely saw an opportunity to satisfy his
sexual desires without having regard to, and fully appreciating the
consequences and blameworthiness of his conduct. When asked under
cross-examination why he did this, he replied that he does not know.
It was hinted in his plea explanation that he was sexually aroused by
the child having been naked; however, according to the mother, the
child was dressed and not naked as the accused alleged. Hence, there
is no merit in this contention that should favour the accused. I
personally find it repulsive that an adult person could be sexually
arousedby a one year old baby; something that seems to be symptomatic
of a distorted mind. Unfortunately, the courts are lately frequently
required to decide cases in which extremely young children are
subjected to terrible crimes of rape and murder; which inevitably
raises the question as to what has happened to the moral values of
our society? Children should not be molested or become victims of
crime, irrespective whether they are in the safety of their homes or
playing on the streets; as there is simply no justification to
exploit young and innocent children, irrespective of the
circumstances they, or the accused persons, may find themselves in.
The fact that the victim was still a small baby, who was raped in the
safety of her own home by the accused, a known and trusted person to
the family, are all aggravating factors, weighing heavily against the
accused.



















[11]
A factor not to be overlooked is the interests of society; for
society looks up at the courts for protection against unscrupulous
criminals who apparently have no respect for their fellow human
beings and their rights. In this regard the courts fulfil an
important function in applying the law in the community, by
maintaining law and order through its decisions and sentences it
imposes. It is therefore of utmost importance for the sentencing
court, to also be in touch with reality and the requirements of
society; lest society might take the law into its own hands. Serious
crimes, such as the present, should not be punished too leniently and
must not only reflect the shock and indignation of society and serve
as just retribution for the crime committed, but should also deter
others from similar conduct. In
S
v Chapman,7
an
oft quoted dictum, endorsed in this jurisdiction, it was stated:



"The Courts
are under a duty to send a clear message to the accused, to other
potential rapists and to the community: We are determined to protect
the equality, dignity and freedom of all women [and children I may
add], and we shall show no mercy to those who seek to invade those
rights."



















In
this instance, I believe society expects from this Court to impose a
sentence that will not only reflect that regard was had to the
interests of the accused, but also to that of society; and the
seriousness of the crime committed. It does not mean to say that the
interests of the accused carry no weight with the Court - only that
it should not be attributed too much weight.



















[12]
It has been said in
S
v Van Wyk8
that
the duty the sentencing court is under to harmonise and balance the
principles applicable to sentence, does not imply that equal weight
ought to be given to the different, and sometimes opposing, factors;
but that the one may be emphasised at the expense of the other. That,
obviously, needs to be determined in the circumstances of the
particular case.



















[13]
The accused stands convicted of the offence of rape, read with the
provisions of the Combating of Rape Act 8 of 2000, in circumstances
where the victim is under the age of thirteen years and the accused
more than three years older, for which the prescribed minimum
sentence is one of imprisonment of not less than fifteen years for



a
first offender (s 3 (1)(a)(ii)(bb)(A)). Only when there are
substantial and compelling circumstances present, the court
may
impose
a lesser sentence. It is now well established that in its
determination whether the circumstances of a particular case could be
seen to be substantial and compelling, regard must be had to the
usual factors traditionally taken into consideration for sentence,
and therefore, does not require the existence of any 'special
circumstances' before a finding on the presence of substantial and
compelling circumstances, can be made.











[14]
Given the circumstances of this case, I am satisfied that, despite
accused being a first offender and him having been in custody
awaiting trial for one-and-a-half years, the seriousness of the
offence, coupled with the circumstances under which it was committed,
warrants a sentence in excess of the prescribed minimum of fifteen
years imprisonment. The aggravating factors by far outweigh the
mitigating factors and a lengthy term of imprisonment seems
inevitable. The circumstances of this case call for the deterrent and
retributive objectives of punishment to be brought to the fore and
that rehabilitation, as a sentencing objective, plays a minor role.
However, I am of the view that the accused should not be sacrificed
on the altar of deterrence, simply because of the prevalence of the
crime; ultimately, it is the accused person in his unique
circumstances who must be punished. Accused should be given the
opportunity, once he has paid his dues, to prove to society that he
has reformed and is therefore entitled, to once again, take up his
position amongst them as a law-abiding citizen.







[15]
In the result, the accused is sentenced as follows:











Twenty
(20) years imprisonment of which three (3) years is suspended for
five (5) years, on condition that the accused is not convicted of the
offence of rape or attempted rape, committed during the period of
suspension.




























LIEBENBERG,
J







ON
BEHALF OF THE ACCUSED Ms. G. Mugaviri








Instructed
by: Directorate: Legal Aid






ON
BEHALF OF THE STATE Mr. Matota


Instructed
by: Office of the Prosecutor-General



1S
v Tjiho
1991
NR 361 (HC).




2S
v
Khumalo and Others
1984
(3) SA 327 (A).




3S
v van Wyk
1993
NR 426 (HC).





41975
(4) SA 855 (AD) at 862G-H.





51970
(2) SA 506 (A) at 511G-H.





62000
(2) SACR 673 (WLD).





71997
(2) SACR 3 (SCA) at 5e.




8Supra
at
448D-E.