1

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: CA 132/2013

In the matter between:

BEN GAWANABAPPELLANT

And

THE STATERESPONDENT

Neutral citation:Gawanab v State (CA 132/2013) [2014] NAHCMD 286 (03 October 2014)

Coram:GEIER, J and UEITELE, J

Heard:22 SEPTEMBER 2014

Delivered:03October 2014

Flynote : Criminal procedure - Sentence - Appeal against sentence - Role of Court of appeal - Trial court must exercise discretion in sentencing in accordance with judicial principles - Court of appeal only to interfere if discretion not correctly exercised - Court of appeal generally reluctant to erode trial Court's discretion - Such erosion could undermine administration of justice.

Summary:On the 23rd November 2012 the appellant was convicted by a magistrate sitting in the Regional Magistrates’ Court for the District of Windhoek of one count of rape in contravention of the sections 1, 2(3), 3, 4, 6 and 7 of the Combating of Rape Act, 2000 ( Act 8 of 2000). He was subsequently sentenced to 15 years imprisonment and he now appeals against the sentence so imposed on him.The state opposed the appeal.

In essence the appellant grounds for appeal are that; the Court a quomisdirected itself when it imposed the minimum sentence prescribed in s 3(1)(a)(iii)(cc) of the Combating of Rape Act, 2008; that the respondent did not prove that the pre-conditions contemplated in s 3(1)(a)(iii)(cc) of the Combating of Rape Act, 2000 existed in order to trigger the application of that section and that the Court a quo misdirected itself when it arrived at the conclusion that there were no compelling circumstances in this particular case that would have justified the imposition of a lesser sentence than the 15 year minimum sentence prescribed by s 3(1)(a)(iii)(cc).

It is a settled rule of practice that punishment falls within the discretion of the Court of trial. As long as that discretion is judicially, properly or reasonably exercised, an appellate Court ought not to interfere with the sentence imposed.The discretion may be said not to have been judicially or properly exercised if the sentence is vitiated by an irregularity or misdirection.

Another test applied by appellate Courts entertaining appeals against sentence which is said to be on the oppressive side is whether such sentence is so manifestly excessive that it induces a sense of shock in the mind of the Court. If it does, the inference can be drawn that the discretion had not been properly exercised.

Heldthat this Court is satisfied that the circumstances, except the age of the complainant, contemplated in s 3(1)(a)(iii)(cc) of the Combating of Rape Act, 2000were present. Heldfurther that the Court a quo did not err in applying that section.

Heldthat the trial Regional Magistrate did have regard to the principles guiding the sentencing of a convicted person, and that he also had regard to the personal circumstances of the appellant.

Held that the trial Regional Magistrate did not error misdirect himself when he found that there were no 'substantial and compelling circumstances' to justify the imposition of a lesser sentence than that prescribed as a minimum.

Held that that there is no disparity in the sentence that the trial court imposed and the one that the appeal court would have imposed to warrant interference with that sentence. Furthermore this Court cannot find that the sentence is so manifestly excessive that it induces a sense of shock in its mind. This Court is satisfied that the court a quo exercised its discretion properly and judicially in imposing the sentence.

ORDER

The appeal is dismissed.

JUDGMENT

UEITELE, J (GEIER, J concurring):

[1]On the 23rd November 2012 the appellant was convicted by a magistrate sitting in the Regional Magistrates’ Court for the District of Windhoek of one count of rape in contravention of the section 1, 2(3), 3, 4, 6 and 7 of the Combating of Rape Act, 2000 (Act 8 of 2000). He was subsequently sentenced to 15 years imprisonment and he now appeals against the sentence so imposed on him.

[2]The hearing of the appeal was set down for June 09, 2014. On that day, when the matter was called, it transpired that the appellant had not received a copy of the record of proceedings in the Regional Magistrates’ Court and that he had applied to the Directorate of Legal Aid for assistance with legal representation. In such circumstances we postponed the hearing of the appeal to 22 September 2014 and directed the Registrar to assist the appellant with the submission and processing of his application for legal aid. When the matter returned to Court on the date to which it was postponed the appellant indicated that he had not received any reply to his application for legal aid and that he wanted the matter finalized and that he will represent himself. For this purpose he had even prepared heads of argument. After the state advocate was afforded some time to consider these heads did not require any further timethe matter then proceeded on that basis. The appellant acted in person and the Respondent was represented by Ms Moyo from the office of the Prosecutor General.

[3]In compliance with the Magistrates’ Court Rules the appellant had delivered a Notice of Appeal which was formulated as follows: (I quote verbatim the said grounds of appeal.)

‘The grounds whereupon the Appellant will base his appeal will be the following; to wit:

1.The learned Magistrate in the Court a quo misdirected himself in wrongly coming to the conclusion that he should and/or is compelled to sentence the convicted Appellant in terms of section 3(1)(a)(iii)(cc) (Combating of Rape Act, Act 8 of 2000) whereas in truth and in fact the State never led evidence to the effect that the complainant was under the age of 18 years at the time of the commission of the offence. The evidence is in fact that she was 19 years of age at the time of the incident. The section referred to supra reads as follows: “where the complainant is under the age of 18 years and the perpetrator is the complainant’s parent, guardian or caretaker or is otherwise in a position of trust or authority over the complainant”. It will be submitted that none of the requirements as per section 3 (1) (a) (iii) (cc) has been proven by the State during the course of the State’s case. The minimum period of imprisonment in terms of the abovementioned section should therefore not be applicable in casu.

It will be submitted that the magistrate should have imposed a sentence in line with the provisions of section 3 (1) (a) (ii).

2.It is submitted that the learned magistrate in the court a quo erred in law and/or on the facts not to find any compelling circumstances in this particular case that would have justified the imposition of a lesser sentence than the 10 year minimum sentence prescribed by section 3(1)(a)(ii).

3.It will be submitted that compelling circumstances exist in respect of the following aspects:

  1. The fact that the accused is a first offender.
  1. That the alleged physical force to the complainant was almost non-existing; in the alternative that it was of such a nature that not much attention should be given to that particular aspect.
  1. The overall personal particulars and circumstances of the applicant.

4.That the learned magistrate erred in the law and/or on the facts to have construed/may has construed the fact that the door of the flat was locked as a circumstance “where the complainant was unlawfully detained”. It will be submitted that the mere fact that the door might have been locked by the appellant does not necessarily mean that his intentions were to unlawfully detain the complainant.

5.It will be argued that the learned magistrate imposed a sentence without; alternatively giving insufficient weight to the aspects of reform and retribution. It will be submitted that the important element of mercy with which a convicted person should be treated has been ignored; alternatively insufficient consideration was given to same.

6.It will be argued that the magistrate of the court a quo erred in the law and/or on the facts to come to the conclusion that a long term of effective imprisonment is the only possible type of sentence in case in achieving the goals set when it comes to the imposition of a sentence. I submit that a shorter term of imprisonment will be effective and even more effective than the long term of imprisonment imposed in the Regional Court, Windhoek; in the alternative it will be argued that a portion of the sentence of the appellant should be suspended.

7.In support of all arguments supra, I submit that the sentence imposed by the Honourable Magistrate is shockingly inappropriate and that it induces a sense of shock.’

[4]Before I proceed to evaluate these grounds of appeal and the arguments advanced in support of his appeal, I consider it appropriate to briefly restate the principles governing the consideration of appeals in regard to sentences imposed by the trial Court. The principles were articulated as follows by the Supreme Court in the matter of S v Ndikwetepo and Others[1]:

‘It is, indeed, a settled rule of practice that punishment falls within the discretion of the Court of trial. As long as that discretion is judicially, properly or reasonably exercised, an appellate Court ought not to interfere with the sentence imposed. This principle emerges from a chain of authorities, but for our purposes it suffices to refer only to two of them.

In S v Rabie 1975 (4) SA 855 (A) at 857D there occurs the following passage:

'In every appeal against sentence, whether imposed by a magistrate or a Judge, the Court hearing the appeal –

(a)should be guided by the principle that punishment is "pre-eminently a matter for the discretion of the trial Court''; and

(b)should be careful not to erode such discretion; hence the further principle that the sentence should only be altered if the discretion has not been "judicially and properly exercised''.

It is explained in the same judgment that the discretion may be said not to have been judicially or properly exercised if the sentence is vitiated by an irregularity or misdirection.

Another case in point is S v Ivanisevic and Another 1967 (4) SA 572 (A) in which Holmes JA stated at 575F-G that:

`…it has more than once been pointed out that the power of a Court of appeal to ameliorate sentences is a limited one; see Ex parte Neethling and Another 1951 (4) SA 331 (A) at 335H; R v Lindsay 1957 (2) SA 235 (N); S v De Jager and Another 1965 (2) SA 616 (A) at 629. This is because the trial Court has a judicial discretion and the appeal is not to the discretion of the Court of appeal: on the contrary, in the latter Court the enquiry is whether it can be said that the trial Court exercised its discretion improperly.'

Another test applied by appellate Courts entertaining appeals against sentence which is said to be on the oppressive side is whether such sentence is so manifestly excessive that it induces a sense of shock in the mind of the Court. See R v Lindsay 1957 (2) SA 235 (N). If it does, the inference can be drawn that the discretion had not been properly exercised.’

[5]In the matter of S v Tjiho[2]Levy, J said the following:

‘Both in the High Court of Namibia and in various Divisions of the Supreme Court of the Republic of South Africa it has frequently been said that the sentence which the trial Court imposes on an accused is in the discretion of such trial court. Hereunder, I refer to some of the cases: R v Mapumalo and Others 1920 AD 56 at 57; R v Ramanka 1949 (1) SA 417 (A) at 420; S v De Jager and Another 1965 (2) SA 616 (A) at 629; S v Giannoulis 1975 (4) SA 867 (A) at 871; S v Pieters 1987 (3) SA 717 (A) at 727; S v Rabie 1975 (4) SA 855 (A).

This discretion is a judicial discretion and must be exercised in accordance with judicial principles. Should the trial court fail to do so, the appeal Court is entitled to, not obliged to, interfere with the sentence. Where justice requires it, appeal Courts will interfere, but short of this, Courts of appeal are careful not to erode the discretion accorded to the trial court as such erosion could undermine the administration of justice. Conscious of the duty to respect the trial court's discretion, appeal Courts have over the years laid down guidelines which will justify such interference.

…In terms of the guidelines to which I referred above, the appeal Court is entitled to interfere with a sentence if:

(i)the trial court misdirected itself on the facts or on the law;

(ii)an irregularity which was material occurred during the sentence proceedings;

(iii)the trial court failed to take into account material facts or over-emphasized the importance of other facts;

(iv)the sentence imposed is startlingly inappropriate, induces a sense of shock and there is a striking disparity between the sentence imposed by the trial court and that which would have been imposed by the court of appeal.’

[6]In the matter of S v Ndikwetepo[3]Chomba,AJA said:

‘In our view a misdirection would be said to occur if, for example, the Court a quo were to fail to apply any or all the principles of punishment, or if in applying them the Court was guilty of over-emphasizing any one of them at the expense of others. Illustrative of such a misdirection is the judgment of Rumpf, JA, as he then was, in S v Zinn 1969 (2) SA 537 (A), where at 540D-F the learned Judge stated:

'The reference in the second passage from the judgment quoted above to the appellant no longer being young and a man who "spits blood from his bronchial tubes'', is the only reference in the judgment on sentence to the appellant's age and malady, and, having regard to the context in which the reference is made, one is driven to the conclusion that the learned Judge-President considered the crimes committed to be of such magnitude that, if any weight were to be given to the personal circumstances of the appellant, business and industry in the whole of Cape Town would come to a disastrous end. I think that this conclusion of the Judge-President is not merely the strongly-worded but justified condemnation of the indignant censor, but rather a hyperbole, exaggerating beyond permissible limits the nature and effect of the crime, and minimising the personality of the offender and the effect that punishment might have on the offender. The over-emphasis of the effect of the appellant's crimes, and the underestimation of the person of the appellant, constitutes, in my view, a misdirection and in the result the sentence should be set aside.

[7]In the South African case of S v Moipolai[4] Mogoeng, JP found that where a Magistrate incorrectly assumed that certain provisions of a statute were applicable amounted to a misdirection entitling the appeal court to interfere with the sentence imposed by the trial court.

[8]Can it be said, that when the tests (that I have set out above) are applied to the sentence passed in the present case, that the Court a quo fell into error? In other words, can it be said that the trial Court exercised its discretion other than judicially, properly, reasonably or misdirected itself? A positive answer to this question would justify interference with the sentence.

[ 9 ]The appellant argued that the Court a quomisdirected itself when it imposed the minimum sentence prescribed in s 3(1)(a)(iii)(cc) of the Combating of Rape Act, 2008. He argued that the respondent did not prove that the pre-conditions contemplated in s 3(1)(a)(iii)(cc) of the Combating of Rape Act, 2000 existed in order to trigger the application of that section. He gave as an example the fact that the respondent did not lead evidence as regards the complainant’s age. The appellant further argued that the Court a quo misdirected itself when it arrived at the conclusion that there were no compelling circumstances in this particular case that would have justified the imposition of a lesser sentence than the 15 year minimum sentence as prescribed by s 3(1)(a)(iii)(cc).

[10]I will now proceed to examine whether the Court a quo misdirected itself when it imposed the sentence of fifteen years. Section 3(1)(a)of the Combating of Rape Act, 2000 reads as follows:

‘3Penalties

(1)Any person who is convicted of rape under this Act shall, subject to the provisions of subsections (2), (3) and (4), be liable-

(a)in the case of a first conviction -

(i)where the rape is committed under circumstances other than the circumstances contemplated in subparagraphs (ii) and (iii), to imprisonment for a period of not less than five years;

(ii)where the rape is committed under any of the coercive circumstances referred to in paragraph (a), (b) or (e) of subsection (2) ofsection2, to imprisonment for a period of not less than ten years;

(iii)where -

(aa)the complainant has suffered grievous bodily or mental harm as a result of the rape;

(bb)the complainant -

(A)is under the age of thirteen years; or

(B)is by reason of age exceptionally vulnerable;

(cc)the complainant is under the age of eighteen years and the perpetrator is the complainant’s parent, guardian or caretaker or is otherwise in a position of trust or authority over the complainant;

(dd)the convicted person is infected with any serious sexually transmitted disease and at the time of the commission of the rape knows that he or she is so infected;

(ee)the convicted person is one of a group of two or more persons participating in the commission of the rape; or

(ff)the convicted person uses a firearm or any other weapon for the purpose of or in connection with the commission of the rape,

to imprisonment for a period of not less than fifteen years;’

[11]My reading of s 3(1) is that where a person is convicted of rape that person may be sentenced to a minimum period of five years, ten years or a minimum period of fifteen years. The minimum period of five years is only applicable if the person convicted of rape was a first offender and the circumstance contemplated in s 3(1)(a)(ii) &(iii) were not present. If the rape was committed under coercive circumstances then the person convicted of rape may be sentenced to a minimum period of ten years.The circumstances contemplated in section 3(1)(a)(ii) are: The coercive circumstances contemplated in that section include the question whether or not:

(i)the convicted person applied physical force was applied to the complainant or to a person other than the complainant;

(ii)the convicted person threatened (whether verbally or through conduct) to apply physical force to the complainant or to a person other than the complainant; and

(iii)the convicted person unlawfully detained the complainant.

Where the complainant suffered grievous bodily or mental harm as a result of the rapeand the complainant is under the age of eighteen years and the person convicted of the is the complainant's parent, guardian or caretaker or is otherwise in a position of trust or authority over the complainant; or where the convicted person is infected with any serious sexually-transmitted disease and at the time of the commission of the rape knows that he or she is so infectedthen that person is liable to imprisonment for a minimum period of fifteen years.