12 November 2012

Namibia: Prosecution Loses Appeal Against Rape Sentence

Windhoek — The State lost its appeal against what was termed a "startlingly lenient sentence which induces a sense of shock" - regarding the 12-year sentence of a child rapist.

The sentence of 12 years that was handed down to a convicted child rapist for the rape of a 10-year-old girl in the Katima Mulilo Regional Court on May 26, 2006 was challenged by the State in the Windhoek High Court on February 24 this year and was subsequently dismissed. That judgment was delivered last week by Judge Alfred Siboleka supported by Judge Naomi Shivute, who dismissed the State's application for leave to appeal to the Supreme Court.

Judge Siboleka who wrote the judgment said the prosecution had failed to satisfy the court that there are reasonable prospects for success on appeal. According to the judgment, the then 21-year old Vasco Kangulu Libongani was convicted by the Katima Regional Court magistrate on a charge of rape and sentenced to 12 years.

The State however objected to the sentence, requesting a sentence of 15 years or more on the basis that it was found that he raped the minor on several occasions - "a verdict that the applicant construes to mean a conviction of more than one count of rape."

The judges further agreed that the finding on the evidence by the Regional Court that the victim was raped on diverse occasions does not alter the fact that the accused was charged - pleaded, tried and convicted only on one count of rape and that the verdict of "guilty as charged" handed down by the magistrate refers and relates to that one count only. It was further found that the State had ample opportunity during the trial to amend the charge and add as many counts as it wanted to the original charge.

According to the judges, the Regional Court magistrate correctly took judicial notice of the fact that the accused had swollen legs, walked with difficulty and had already spent 21 months in custody, and that this gave him the legal entitlement to regard these factors as sufficiently empowering to depart from the prescribed minimum sentence

The judges further noted that they found no misdirection on the facts of law when looking at the circumstances of the case as a whole, neither any irregularity in the sentencing process warranting an intervention.

According to the judges, the reason for imposing a 12-year sentence instead of the prescribed minimum of 15 years is satisfactory and the appeal could therefore not succeed.

The judges were of the opinion that the magistrate correctly considered the personal circumstances of the convict, the gravity of the offence, and that he (magistrate) was fair to society and exercised his discretion judiciously.

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