Court name
High Court
Case number
17 of 2010

S v Kharigub (17 of 2010) [2012] NAHC 106 (08 March 2012);

Media neutral citation
[2012] NAHC 106
Shivute JP

CASE NO.: CC 17/2010


In the matter between:





Heard on: 2012 February 07 - 08

Delivered on: 2012 March 08



J: [1] The accused person was found guilty of one
count of rape in contravention of section 2(1) (a) of the Combating
of Rape Act, 2000 (Act 8 of 2000 as amended) (the Act) and of one
count of assault with intent to do grievous bodily harm.

[2] The accused
was represented by Mr Isaacks on the instructions of the Directorate
of Legal Aid while Mr Lisulo appeared on behalf of the State. The
fact of the case may be summarized as follows:

[3] The accused
person who was under the age of 18 years at the time of the
commission of this offence committed a sexual act under coercive
circumstances with a 21 years old victim by inserting his penis into
her vagina after he had applied physical force to her person.
Thereafter he took a broken bottle and assaulted her between her
buttocks, face, cut her tongue with intent to cause grievous bodily
harm. Complainant sustained serious injuries.

[4] The accused
opted to exercise his right to remain silent in mitigation. Mr
Isaacks addressed the Court from the Bar and drew the Court’s
attention to well established principles regarding sentencing,

(a) The nature of
the crime;

(b) The interests
of society; and

(c) The personal
circumstances of the offender.

He referred this
Court to several well-known authorities on sentencing which I do not
deem necessary to repeat.

[5] I have further
listened to the mitigatory circumstances advanced on the accused
person’s behalf, to wit that he was 18 years old at the time he
committed these offences. It was at this stage that the accused
informed his legal representative that he was born on 26 October 1988
and the offence was committed on 15 October 2006, which meant that
the accused had not yet attained the age of 18 years at the time the
offence was committed. Because the age of the accused plays a crucial
role when determining an appropriate sentence to be imposed, the
Court called the accused person’s mother as a witness and she
confirmed that the accused was indeed born on 26 October 1988.

[6] The accused
person is a first offender, who spent 5 years and some months’
incarceration awaiting trial. He was born in Gobabis where he grew up
in the care of his mother. He has a sibling who is 40 years old. He
grew up without a father figure since his father left him when he was
3 years old. The accused has a daughter who is 9 years old. He was
arrested on 18 October 2006 when he was doing Grade 10. Mr Isaacks
further argued that a lengthy term of imprisonment would not be
appropriate. He therefore urged the Court to apply Section 3(3) of
the Act and to impose any other appropriate sentence. It was again
counsel’s argument that the sentences to be imposed on the two
counts should run concurrently.

[7] On
the other hand,
counsel for the State submitted
that the provisions of section 3(3) do apply and that the court
should therefore impose an appropriate sentence. Counsel for the
State emphasized the point of the injuries suffered by the victim,
saying that these were very serious to the extent that she was unable
to speak properly because of the injuries inflicted on her tongue.
Society has a legitimate expectation that courts would impose
appropriate sentences in cases coming before them. Counsel continued
to say that the period the accused spent in custody should be taken
into account. He further explained that the matter was delayed due to
the fact that the accused at some stage had terminated the services
of his legal representative. Additionally the matter had to start
because of the unfortunate and untimely
passing of the learned Judge who had initially presided over the
case. It was further counsel’s submission that the accused did
not show any remorse to the Court because he did not apologize for
the wrongs he has done. I agree with counsel for the State that there
are no indications that the accused has shown any remorse for what he
has done.

[8] Having heard
arguments from both parties, it is now time for me to carry out the
onerous task of sentencing the accused. I have taken into account the
factors relevant to sentencing, being the crime; the personal
circumstances of the accused; the interests of society and objectives
of punishment namely; prevention of crime; deterrence, rehabilitation
of the offender and the imposition of appropriate punishment for the
offence committed.

[9] Although the
accused was under the age of 18 years his actions were not consistent
with the actions of a young offender. He showed unimagined savagely
and callousness towards the victim. He first assaulted her, raped her
and as if that was not bad enough he proceeded to assault her with a
bottle neck on her private parts and cut her on the tongue. The
victim sustained many severe injuries on the body. I had the
opportunity to view the photographs depicting the victim and the
injuries she suffered. Those photographs show the extent of the
horrific injuries suffered by the victim at the hands of the accused.
They leave a lasting impression that the accused had reduced himself
to the intolerable level of a savage with no regard whatsoever for
the human rights of others.

[10] In sentencing
the accused, I have considered the period the accused spent in
custody awaiting the trial to be concluded and that he is a first
offender. However, I do not lose sight of the fact that rape is a
serious offence which leaves serious and often long-lasting
psychological trauma on the victim. The victims’ rights to
privacy and dignity have been seriously violated by the accused and
this factor should be taken into account in sentencing.

[11] I
am also alive to the provision of section 3(3) of the Act, which
reads as follows:

The minimum sentence
prescribed in subsection (1) shall not be applicable in respect of a
convicted person who was under the age of eighteen years at the time
of the commission of the rape and the court may in such circumstances
impose any appropriate sentence.”

[12] My
understanding of the above provision is that the minimum sentence
prescribed in subsection (1) of the Act cannot be imposed on a person
who was under the age of 18 years at the time of the commission of
the rape. In those circumstances, the trial Court may impose any
appropriate sentence. By “any appropriate sentence” I
understand it to mean any appropriate sentence which is less than the
prescribed sentence so that a convicted person who was under the age
of 18 years at the time of the commission of the rape is not
subjected to the regime of the minimum sentences prescribed in
subsection (1) of section 3 of the Act.

[13] In the
result, I impose the following sentence on the accused person:

Count 1: Ten (10)
years’ imprisonment.

Count 2: Two (2)
years’ imprisonment.

It is ordered that
the two sentences are to run consecutively.



Adv. Lisulo

Instructed by:
Office of the Prosecutor-General

Mr Isaacks

Instructed by:
Directorate: Legal Aid