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REPUBLIC OF NAMIBIA

REPORTABLE

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: CC 14/2013

In the matter between:

THE STATE

and

EPAFRADITUS NDOKOTORA UNENGU ACCUSED

Neutral citation: S v Unengu (CC 14/2013) [2015] NAHCMD 43 (05 March 2015)

Coram: LIEBENBERGJ

Heard:26 February 2015.

Delivered: 05 March 2015

Criminal procedure — Sentence — Rape – Minimum sentences — 'Substantial and compelling circumstances' — What constitutes — Gravity of offence and circumstances – Sentence in excess of mandatory minimum justified.

Criminal procedure — Sentence — Intoxication of accused mitigating factor — Evidence must show accused’s faculties impaired before regarded as diminishing his blameworthiness.

Criminal procedure – Sentence – Effect of imprisonment on family of accused – Inevitable consequence of committing crime – Court not to be deterred from imposing sentence dictated by interests of justice and society.

Summary: The accused was convicted of having raped and assaulted the complainant with intent to cause grievous bodily harm. The accused’s personal circumstances such that a custodial sentence undoubtedly will negatively impact on his family, but this is a consequence of crime and the court not to be deterred from imposing the kind of sentence dictated by the interests of justice. The accused was not sober when committing crimes but his blameworthiness can only be regarded as diminished when evidence shows that his mental faculties were impaired. The court after considering all the relevant factors for purposes of sentence found the accused’s personal interests outweighed by the gravity of the offence and the interests of society. The circumstances justify a sentence in excess of the mandatory sentence of not less than 10 years’ imprisonment. On a count of rape the accused sentenced to 12 years’ imprisonment and for assault with intent to cause grievous bodily harm, a further 6 months’ imprisonment.

ORDER

The accused is sentenced as follows:

Count 2:12 years’ imprisonment.

Count 3:6 months’ imprisonment.

SENTENCE

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LIEBENBERG J:

[1] On 24 February 2015 the accused was convicted on charges of statutory rape and assault with intent to do grievous bodily harm. The court must now impose sentence.

[2] In considering what sentence would be appropriate, certain guidelines are of general application to the facts of the case. Though each of these factors must be considered individually, it need not be given equal weight as, depending on the circumstances of the case, it might benecessary to emphasise some factors at the expense of others. It is however imperative to consider each factor. In the end, andhaving applied its mind to the personal circumstances of the accused, the nature of the crimes committed and the interests of society, and having considered the mitigating and aggravating factors,the court must decide on a sentencesuitable for the accused before court. The sentence should be tailored in such way that it fits the accused, reflects the seriousness of the crime, and is fair to society. This is referred to as the principle of individualisation. In sentencing, the court must further have regard to the objectives of punishment and, given the specific circumstances of the case, decide which of these objectives it wants to achieve with the sentence imposed. Last but not least, it has widely been accepted that punishment must be blended with a measure of mercy and in the application thereof, the court will be guided by the circumstances of the case.

[3] No evidence was led for purposes of sentence and both State and defence counsel merely submitted from the Bar.

[4] The personal circumstances of the accused are as follows: He is currently 34 years of age, married and has two minor children born from the marriage. Since he completed grade 12 in 1999 the accused, at tertiary level,obtained various national certificates in civil engineering and achieved his diploma in urban design. He thereafter graduated in civil engineering (B Tech) and enrolled with the Polytechnic of Namibia for his master’s degree which, as a result of his pending trial, he was unable to pursue. It was submitted on his behalf that irrespective of the sentence imposed, the accused intends furthering his studies. During the commission of the offences the accused was employed by Roads Authority with the rank of Senior Engineer andattachedto projects in the Rundu area. The accused is furthermore a first offender and was in detention for a period of seven months prior to being admitted to bail.

[5] It is trite that the period spent in custody by an accused is a factor to be taken into consideration in sentencing and normally leads to a reduction in sentence when that period is lengthy (S v Kauzuu 2006 (1) NR 225 (HC) at 232F-H). However, such period is not arithmetically discounted and subtracted from the sentence the court imposes, but remains a factor which is considered together with other factors to arrive at an appropriate sentence. In the present instance I do not consider the period of seven months spent in custodyundue, compelling the court to reduce his sentence accordingly.

[6] As regards any remorse on the part of the accused he, by way of his legal representative, said that the conviction destroyed him and that he appreciates the fact that he has ‘done bad’ to society and the complainant to whom he unreservedly apologises. This would suggest that the accused has remorse for his wrongdoing. These submissions should carry some weight with the court, providedthe accused’srepentance is sincere. Mr Lisulo, for the State, submitted that it was not and should thus be given little weight, if any.

[7] In the oft quoted case of S v Seegers 1970 (2) SA 506 (A) at 511G-H, as per Rumpff JA, it was said that remorse is an indication that the accused will not reoffend and, as such, is an important factor when considering deterrence as an objective of sentence. The sincerity of remorse claimed by the accused can only be determined when the accused fully takes the court into his confidence and testifiesto that effect, not by way of submissions made on his behalf (S v Iilonga 2014 (1) NR 53 at 57I – 58B).

[8] The accused in casu,until his conviction, had made no attempt to apologise to the complainant or her family and although he was under no duty to do so, the accused’s belated repentance at the stage of sentencing is less convincing,a fortiori where he did not give evidence to that effect. Furthermore, throughout the trial the accused exculpated himself by creating the impression that the complainant merely got what she was looking for, not only for accompanying him and his friends on that day for ‘companionship and sex’, but also that she on two occasions took the initiative,culminating in them having sexual intercourse. He well knew this was fabricated evidence and far from the truth but, notwithstanding, put the complainant through a trial in which she had to relive the ordeal and was subjected to penetrating cross-examination. Though I am mindful of the accused’s fundamental right of being innocent until proven guilty, it appears to me that the accused claiming to be remorseful for any wrongdoing on his part, cannot simply divorce himself from the way he chose to conduct his defence, or the evidence he gave. Likewise, it cannot be expected of the court to close its eyes and ears to these facts when determining whether or not the accused’s penitence is sincere. The lack of any tangible remorseby the accused prior to his conviction is not something that can go unnoticed.

[9] In view thereof I am unable to find that the accused is genuinely remorseful for having committed the offences he stands convicted of, and that he,therefore, will not reoffend in future.

[10] I find myself in respectful agreement with Mr Namandje’s submissions that the accused, being a formerly disadvantaged person, accomplished what few others in similar positions have managed and that he, undoubtedly through hard work and dedication, succeeded in rising above circumstances byprogressively building his careeras a civil engineer. His endeavours in this regard, however, must for now be shelved because the sentence the court imposes today will undoubtedly impact on his current status. I have specifically used the word ‘shelved’, for what I have understood from counsel’s submissions is that the accused intends furthering his studies whilst serving his sentence and, given his track record in that respect, I have little doubt that he will one day reap the fruits of his endeavours.

[11] With regard to the accused having a family, despite counsel not addressing the court as to how the accused’s wife and children have been affected by his conviction, I have no doubt that it has brought much unhappiness and distress into the family and that more hardship is likely to follow. Add thereto the fall from grace among friends and family he has to endure. For the family, unfortunately this is the consequence of crime; for the accused it is one of the penalties which he must pay. Regrettably, though feeling for the accused’s family, one cannot allow sympathy for them to stand in the way of imposing the kind of sentence dictated by the interests of justice and society.

[12] Turning to the counts the accused stands convicted of, it is common cause that both offences are regarded as serious. It is therefore not uncommon to find in cases of this kind thatlengthy custodial sentences, other than in wholly exceptional circumstances, have become the norm to mark the gravity of the offence of rape and to give effect to society’s disapproval of those making themselves guiltythereof.The prevalence of violent crimes such as murder, rape, serious assaults and various others seems to be on the increase and has now reached alarming proportions, despite stern warnings from the courts that progressively heavier sentences will be imposed until the tide is turned. It is therefore not strange that the public expects of the courts to impose severe sentences in these instances and reacts with outrage when itis not imposed.

[13] Though it is not difficult to understand the feelings and emotions of those in society who are no longer prepared to put up with criminals in their midst, and who often voice their anger and frustration by way of public demonstrations, a court must always be mindful that public expectation is not synonymous with public interest (S v Makwanyana and Another 1995 (3) SA 391 (CC) at 431C-D).The courts have the duty to serve the interests of society and though cognizant of the feelings and expectations of society, it should not blindly adhere thereto, but has to decide what sentence in the circumstances of the case will do justice to society as well as the accused. This exercise requires that the profile and interests of the accused be considered together with that of society, whilst bearing in mind the circumstances of the case. The sentence should be such that after the accused has paid his dues to society, he will be welcomed back in their midst. However, the balancing of these principles and the application thereof to the facts is,more often than not, complicated and no easy task.

[14] The circumstances in which the offences were committed are indeed aggravating. The accusedagainst payment undertook to take the complainant from Nkurenkuru to her village earlier that day where after he, with complete disregard to his earlier undertaking, set out on a drinking spree which, on his own evidence, he initiated. Whilst still at Mpungu the complainantasked him to refund part of the money she had paid for the lift, but he simply refused.This virtually forced her to stay on the vehicle as she had no other monies left for transport.This remained the accused’s stance until they had reached Olavi’s house much later.It was only after her insistence that the accused agreed to take her home.It is common cause that the complainant was offered a place to sleep whilst at Olavi’s place, which she declined. The evidence therefore does not support an inference that the rape was premeditated prior to them departing Olavi’s place. His wicked intentions only hatched on the way whilst alone in the vehicle with the complainant. The complainant alsotrusted the accused to take her home and to this end he abused the trust she had placed in him.

[15] The commission of the offences involved violence used against the complainant which left her injured. She was bleedinginthe face and was bitten on her one finger. These injuries have in the meantime healed without leaving permanent scars.Counsel, in my view, correctly submitted that, because no evidence was led pertaining to any psychological effect the rape and assault had on the complainant, it does not mean to say that, therefore, there was no psychological harm done.That would be unrealistic simply because the offence of rape constitutes ‘an invasion of the most private and intimate zone of a woman and strikes at the core of [the victim’s] personhood and dignity’ (S v Vilakazi 2012 (6) SA 353 (SCA) at 356H-I). The court in S v Iilonga (supra at 59E-F) when considering the psychological harm caused to the complainant, cited with approval the remarks made by Mpati JA in S v Mahomotsa 2002 (2) SACR 435 (SCA) to the effect that, to quantify the likely duration and degree of intensity thereofit would require evidence in that regard but, in the absence of such evidence, ‘it does not mean that one should approach the question of sentence on the footing that there was no psychological harm caused’.

[16] In the present circumstances the complainant was violatedand assaulted and thereafter deserted at an uninhabited place and left at her own mercy in the dead of night.In these circumstances, bearing in mind that she had to walk approximately 7 km through the bushes before finding help, it would not be unrealistic to say that the complainant’s life was put in danger by the accused’s self-absorbed attitude. Against this backdrop it would be naïve to think that the complainant came through all this, unscathed and not traumatised. That much was conceded by defence counsel.

[17] From all the above I havecome to the conclusion that the circumstances surrounding the commission of the offences aresignificantly aggravating, justifying severe punishment.

[18] Evidence of the accused having consumed alcohol and his inability to control the vehicle earlier in the daytends to shows that he was likely under the influence at the time. However, the degree of intoxication when committing the crimes could not be measured as the accused contradicted himself on this point.He said that he has a clear recollection of what happened but at the same time claims to have been drunk, explaining his inability to recall certain incidents. In view thereof the possibility of the accused’s capacities and senses being impaired could therefore not be ruled out, however, the extent thereof remains unknown. Whether or not the intake of alcohol constitutes a mitigating factor depends on the circumstances of the case. As stated in the court’s earlier judgment, there is evidence that he had been drinking during the day and that he was not sober. This compelled the court to find that it was likely that his mental faculties were impaired. In SS Terblanche:Guide to sentencing in South Africa the learned author at p 200 – 201 states the following: ‘However, it has to be shown that the intoxication actually impaired the mental faculties of the offender; only then can his blameworthiness be regarded as diminished.’

[19] Bearing in mind the complainant’s evidence that the accused was capable of blocking the code number of the complainant’s phone shortly before the sexual intercourse; that he overpowered and raped her, where after he managed to drive and find his way home,is a strong indicationthat he could not have been heavily intoxicated. However, what it does not tell us is whether the alcohol actuallyimpaired his mental faculties when committing the offence. The accused himself did not testify that his senses were aroused, or his sensibilities inhibitedby thebeers he consumed. In the absence of evidence to the contrary, I am unable to find as a fact that the consumption of alcoholdiminished the accused’s moral blameworthiness.

[20] It is clear from the judgment that the court found the accused to have committed a sexual act under coercive circumstances involving the application of physical force. In such instance the mandatory sentence of not less than 10 years imprisonment findsapplication: Provided that, if substantial and compelling circumstances exist, the court may impose a lesser sentence of imprisonment and is under no obligation to do so.

[21] It is well established that regard must be had to all the factors traditionally taken into account by the court for sentence (generally referred to as the triad) when deciding whether or not substantial and compelling circumstances exist. It would therefore be wrong to approach sentence ‘on the basis that the prescribed sentence would be imposed as a matter of course unless the personal circumstances of the appellant discloses it to be an exceptional case’ (S v Vilakazi (supra at 367C-D).

[22] I have given due consideration to defence counsel’s submission that the accused is a candidate for a sentence below the prescribed period of 10 years’ imprisonment; also to State counsel’s opposing view that a sentence in excess of the mandatory sentence would be justified in the circumstances of the case. I have in the end come to the conclusion that there are no compelling reasons why the court should impose a lesser sentence than what the Legislature considered to be the minimum sentence for crimes of this kind. On the contrary, I am satisfied that the circumstances of the case dictate a sentence in excess thereof. Though the accused’s personal circumstances as mentioned earlier herein i.e. that he is a first offender and him having a family,are indeed weighty factors counting in his favour,all these, in my view, do not measure up to the gravity of the offences committed and the legitimate expectations of society that lengthy custodial sentences be imposed in cases of this kind. I do not consider a sentence of between five and six years’ imprisonment,inthe present circumstances,appropriate and respectfully endorse the sentiments of Nugent JA in Vilakazi (at 375E-F) that: ‘Once it becomes clear that the crime is deserving of a substantial period of imprisonment the questions whether the accused is married or single, whether he has two children or three, whether or not he is in employment, are in themselves largely immaterial to what that period should be, …’ When the accused personinvolves himself in committing serious crime, his personal circumstances will necessarily recede into the background.