High Court of Namibia Main Division, Windhoek s23

REPUBLIC OF NAMIBIA

NOT REPORTABLE

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

SENTENCE

CASE NO: CC 18/2013

In the matter between:

THE STATE

versus

VICTUM GOMEB ACCUSED 1

ELVIS GAU-GOAB ACCUSED 2

HARRY PATRICK BOWE ACCUSED 3

Neutral citation: S v Gomeb (CC 18/2013) [2016] NAHCMD 344 (10 November 2016)

CORAM: SIBOLEKA J

Heard on: 14 October 2016

Delivered on: 10 November 2016

Flynote: Criminal law: Youthfulness coupled with being a first offender are substantial and compelling circumstances that ought to be taken into account in sentencing juveniles.

Summary: Accused 1 and 2 were 17 years of age while accused 3 was 16 years old at the time they sexually assaulted the complainant and assisted each other to do the same on the complainant.

Held: Custodial sentence of which part is suspended, as well as the concurrent running of sentences are appropriate.

______

VERDICT

In the result the accused are sentenced as follows:

Accused 1:

Count One – Rape: Ten (10) years imprisonment of which four (4) years is suspended for five years on condition that the accused is not convicted of Rape in contravention of section 2(1)(a) read with sections 1, 2(2), 3, 5, 6, and 18 of the Combating of Rape Act 8 of 2000 – Rape committed during the period of suspension;

Count Five – Rape: Four (4) years imprisonment;

Count Eight - Rape: Four (4) years imprisonment.

Accused 2:

Count Two - Rape: Ten (10) years imprisonment of which four (4) years is suspended for five years on condition that the accused is not convicted of Rape in contravention of section 2(1)(a) read with sections 1, 2(2), 3, 5 6 and 18 of the Combating of Rape Act 8 of 2000 – Rape committed during the period of suspension;

Count Four - Rape: Four (4) years imprisonment;

Count Nine - Rape: Four (4) years imprisonment.

Accused 3:

Count Three - Rape: Nine (9) years imprisonment of which four (4) years is suspended for five years on condition that the accused is not convicted of Rape in contravention of section 2(1)(a) read with sections 1, 2(2), 3, 5, 6 and 18 of the Combating of Rape Act 8 of 2000, committed during the period of suspension;

Count Six - Rape: Three (3) years imprisonment;

Count Seven - Rape: Three (3) years imprisonment.

It is ordered that the sentences imposed on:

Accused 1 in counts five and eight

Accused 2 in counts four and nine

Accused 3 in counts six and seven should run concurrently with:

The sentence of six (6) years accused 1 should serve on count one:

The sentence of six (6) years accused 2 should serve on count two.

The sentence of five (5) years accused 3 should serve on count three respectively.

______

SENTENCE

______

SIBOLEKA J

[1] On 27 September 2016 I convicted the three accused as follows:

Accused 1:

Counts One: Rape

Five: Rape

Eight: Rape

Accused 2:

Counts Two: Rape

Four: Rape

Nine: Rape

Accused 3:

Counts Three: Rape

Six: Rape

Seven: Rape

[2] It is now my duty to consider an appropriate sentence for each of them. In executing this exercise I must take into account each accused’s personal circumstances, the crime itself, and the interests of society. Closely connected to the sentencing process are the objectives of punishment namely deterrence, prevention, retribution and reformative. Depending on the merits of each case a factor may override others in the sentencing process.

[3] I will now start with the personal circumstances of each accused.

[4] Accused 1 – Victum Gomeb mitigated under oath saying that he went up to Grade 10. He is currently 24 years old, he was 17 years at the time of the commission of the offence. He is single, but he has two children aged four and three years respectively. They reside by their mother. Before his arrest on the matter he was working at a Lodge on the other side of Sesfontein where he was earning N$1 500 to N$1 800 if overtime was covered. He maintained his children whose mothers are not working. If he is granted a chance to stay out of prison, he will not commit any offence because he has now realized that it is not a good thing to offend. He was residing at his mother’s house, but had since moved to his girlfriend’s residence before his arrest. His mother was working in the construction company but is retiring. Nobody is there to look after his siblings and to pay for the house. He is a first offender.

[5] Accused 2 – Elvis Gau-Goab mitigated under oath, testifying that he failed Grade 9 at Brownville school thirty kilometers outside Khorixas. He is now 24 years old. He was 17 years of age at the time of the commission of the offence. He is single but he has three children aged 5 years and twins aged 9 months. The three children are all from one mother who is not working. Before his arrest, he used to work for a Building Construction Company where he earned N$3 000 for a full month and N$2 000 for half of the month. He was supporting the children. He feels bad for what he has done. He did not talk to the complainant because he was not allowed to do so. He is a first offender.

[6] Accused 3 – Harry Patrick Bowe did not mitigate under oath. His personal circumstances were provided to court from the bar by his counsel, and are as follows: He is now 22 years old, he was 16 years at the time of the commission of the offence. He is single and has no children. He was in school doing Grade 9 at Khorixas at the time of his arrest. Despite the fact that he was out on warning, he was forced to leave school because others were teasing him for what he has done. He was not working, he was staying by his parents in Khorixas. His mother suffered a stroke in 2012 and got paralyzed, such that she has to be taken care of. His father is always out with work, and he was the only one who was helping out his sick mother. He is a first offender and the matter was hanging over his head for six years. His group was intoxicated on the day of the commission of the offence.

[7] On behalf of their clients, the counsel addressed court in mitigation of sentence as follows:

[8] Mr Karuaihe on behalf of accused 1 submitted that the prescribed minimum sentences are not applicable to juvenile offenders as stipulated in section 3(3) of the Combating of the Rape Act 8 of 2000. According to this counsel a custodial sentence is therefore not obligatory. He asked the court to consider a wholly suspended sentence. The complainant was 16 years old and the group was intoxicated. This counsel referred to some case law in support of the none custodial sentence he requested.

[9] Mr Engelbrecht on behalf of accused 2 submitted that the accused was a first offender who was intoxicated at the time of the commission of the offence. There was no planning beforehand and he has showed strong remorse. This counsel submitted that in the circumstances of the matter eight (8) years partly suspended will be an appropriate sentence. He said the co-current running of sentences should be considered on the sentences imposed on other counts.

[10] Mr Van Vuuren on behalf of accused 3 submitted that the group was intoxicated. The complainant did not suffer serious injury. Accused 3 was only 16 years at the time. According to this counsel the fact of being a first offender coupled with youthfulness is a substantial and compelling circumstances. He persuaded the court to consider a wholly suspended sentence or the co-current running thereof. He also referred the court to some case law in support of his request.

[11] Mr Kuutondokwa is the counsel for the prosecution on the matter. He submitted that all three accused have been convicted on serious charges – gang rape. The accused did not show any remorse. They are all juveniles and a sentence of not more than ten (10) years is proscribed. According to this counsel it will not be appropriate to impose a wholly suspended sentence which will result in the accused walking away as free persons for such serious charges. He asked the court to consider sentences that are not far below the prescribed ten years. This counsel also referred the court to case law in support of his request.

[12] On the offence itself the complainant, Benita Eises, and the three accused went to Hot Spot Bar which has no ablution facilities where the group consumed alcohol. When the complainant went outside to pass water, accused 1 followed her. Later accused 2 and 3 did the same leaving Benita Eises, the sister of accused 1, alone in the Bar. It was at that occasion that all three accused sexually assaulted the complainant and proceeded to help each other in that regard.

[13] Rape is a very serious offence that is the reason why the Legislature found it appropriate to promulgate the Combating of the Rape Act 8 of 2000 providing for minimum sentences. This Act is sought to protect defenseless women by way of punishing convictees appropriately.

[14] On the interests of society, its voice is, and remains continuously high as regard violence on defenseless women. Courts are expected by law to reflect the protection of women in the sentence that are impose on those who are convicted. I am however mindful of the fact that the two accused were 17 and the third was 16 years old at the time of the commission of these offences. Section 3(3) of the Combating of Rape Act 8 of 2000 is applicable on all of them and it provides the following:

“Section 3(3)

The minimum sentences 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”.

[15] In the result the accused are sentenced as follows:

Accused 1:

Count One - Rape: Ten (10) years imprisonment of which four (4) years is suspended for five years on condition that the accused is not convicted of Rape in contravention of section 2(1)(a) read with sections 1, 2(2), 3, 5, 6 and 18 of the Combating of Rape Act 8 of 2000 – Rape committed during the period of suspension;

Count Five - Rape: Four (4) years imprisonment;

Count Eight - Rape: Four (4) years imprisonment.

Accused 2:

Count Two - Rape: Ten (10) years imprisonment of which four (4) years is suspended for five years on condition that the accused is not convicted of Rape in contravention of section 2(1)(a) read with sections 1, 2(2), 3, 5, 6 and 18 of the Combating of Rape Act 8 of 2000 – Rape committed during the period of suspension;

Count Four - Rape: Four (4) years imprisonment;

Count Nine - Rape: Four (4) years imprisonment.

Accused 3:

Count Six - Rape: Three (3) years imprisonment;

Count Seven - Rape: Three (3) years imprisonment.

It is ordered that the sentences imposed on:

Accused 1 in counts five and eight

Accused 2 in counts four and nine

Accused 3 in counts six and seven should run concurrently with:

The sentence of six (6) years accused 1 should serve on count one;

The sentence of six (6) years accused 2 should serve on count two;

The sentence of five (5) years accused 3 should serve on count three respectively.

______

A M SIBOLEKA

Judge

APPEARANCES

STATE : Mr J. T. Kuutondokwa

Office of the Prosecutor-General, Windhoek

ACCUSED 1 : Mr. M. R. Karuaihe

Directorate of Legal Aid

ACCUSED 2 : Mr. M. Engelbrecht

Directorate of Legal Aid

ACCUSED 3 : Mr. J. Van Vuuren

Directorate of Legal Aid