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REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
Case No: CC 7/2012
THE STATE
versus
ERWIN KOCK
Neutral citation:S v Kock(CC 7-2012) [2015] NAHCMD 214 (15 September 2015)
Coram:SHIVUTE, J
Heard:10 August 2015
Delivered:15September2015
SENTENCE
Count 1:Assault with intent to do grievous bodily harm: 6 years’ imprisonment.
Count 2:Rape contravening s 2 (1) (a) of the Combating of Rape Act 8 of 2000: 18 years’ imprisonment.
Count 3:Robbery with aggravating circumstances as defined in s1 of the Criminal Procedure Act 51 of 1977: 10 years’ imprisonment.
Three (3) years’ imprisonment on the 1st count is to run concurrently with the sentence imposed on the 2ndcount.
SENTENCE
SHIVUTE J:
[1]Accused has been convicted of assault with intent to do grievous bodily harm; rape contravening s 2 (1) (a) read with ss 1, 2, (2) and 3 of the Combating of Rape Act 8 of 2000 and robbery with aggravating circumstances as defined in s 1 of the Criminal Procedure Act 51 of 1977.
[2]The accused did not testify in mitigation neither did he call witnesses. Counsel for the accused made submissions from the Bar and placed the personal circumstances of the accused as follows:
The accused is 38 years old. He is single without children. He was born in Mariental where he grew up with his parents. He has eight siblings. The accused is the eldest of his siblings and he only schooled up to Grade 1. He left school to go and work at the farm as a general worker until the time he was incarcerated. He spent six years and ten months in custody awaiting trial. He was drunk when he committed these offences.
[3]His counsel argued that the assault was perpetrated by the accused by stabbing the deceased with a fork like instrument and the same instrument was used during the robbery. Therefore, sentencing the accused for both offences would result in double jeopardy. Counsel urged the Court to take the two counts together for the purpose of sentence or to order the sentence on count 1 to run concurrently with the sentence to be imposed on count 3. Concerning the robbery, counsel argued that all the property have been recovered. With regard to the rape, counsel argued that since the accused raped the deceased who was mentally incapacitated due to intoxicating liquor which amounted to coercive circumstances, the penalty provided for is that of not less than five years.
[4]Counsel for the State argued that the accused is not a first offender as he was convicted of two counts of housebreaking with intent to steal and theft. The accused assaulted the deceased in a brutal manner by targeting her vulnerable part of her anatomy. The accused was 30 years old when the offences took place. The deceased was 58 years old, enough to be the accused’s mother. The age of the complainant is an aggravating factor. The accused having robbed the victim of her dignity, he proceeded to rob her of her property. The accused took advantage of the deceased because she was under the influence of alcohol. It was further counsel’s argument that the offence of rape is serious and prevalent. Therefore, it should be viewed in a serious light. Concerning the account of robbery with aggravating circumstances counsel argued that the accused cannot escape punishment simply because the property he robbed was recovered.
[5]I have given due consideration to the personal circumstances of the accused and all the factors placed before me by both counsel. In deciding what a proper sentence should be, I will consider a triad of factors namely the offender, the crime and the interest of society. At the same time regard must also be had to the objectives of punishment which are prevention, deterrence, rehabilitation and retribution. Although the Court must endeavor to strike a balance between these factors the circumstances of a case might dictate that one or more of the factors must be emphasised at the expense of the others. S v Van Wyk1993 NR 426 at 448.
[6]The factor that the accused spent six years and about 11 months in custody awaiting the finalisation of his case weighs heavily in his favour. However, he is not a first offender. The offences he committed are very serious and rampant. All of them involve violence, a clear indication that the accused is a violent person who has no respect for human dignity. He ferociously assaulted his victim who suffered injuries at the most vulnerable part of her body. This was undoubtedly a cowardly attack on a defenseless woman and it should not be tolerated.
[7]Counsel for the accused argued that the penalty provided for rape in circumstances where the victim is affected by physical disability or helplessness, mental incapacity or other inability or intoxicating liquor or any drug or other substance which mentally incapacitates the complainant, provided for is not less than five years. However, I do not agree with this proposition. S 3 (1) (a) (1) reads as follows:
‘(1)Any person who is convicted of rape under this Act shall, subject to the provisions of sections (2) (3) and 4 be liable –
(a)In the case of first conviction –
(i)Where rape is committed under circumstances otherthan the circumstances contemplated in subparagraphs (ii) and (iii) to imprisonment for a period of not less than five years.’
The coercive circumstances in this case are contemplated in subparagraphs (ii) and (iii) therefore the sentence provided for under s 3 (1) (a) (i) does not apply. In fact there is no minimum mandatory sentence provided for rape committed under coercive circumstances under subparagraphs (ii) and (iii) therefore the Court is at liberty to impose any sentence that it deems fit in the circumstances.
[8]The accused committed the offences which are closely related in time. However, this does not mean that he should not be sentenced for each offence he has committed although the Court may have to consider the cumulative effect of the sentence.
[9]In view of this the following sentence is imposed.
Count 1:Assault with intent to do grievous bodily harm: 6 years’ imprisonment.
Count 2:Rape contravening s 2 (1) (a) of the Combating of Rape Act 8 of 2000: 18 years’ imprisonment.
Count 3:Robbery with aggravating circumstances as defined in s1 of the Criminal Procedure Act 51 of 1977: 10 years’ imprisonment.
Three (3) years’ imprisonment on the 1st count is to run concurrently with the sentence imposed on the 2ndcount.
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N NShivute
Judge
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APPEARANCES
STATE: Ms Esterhuizen
OfOffice of the Prosecutor-General
ACCUSED:Mr Isaacks
Instructed by Directorate of Legal Aid