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CASE NO.: CC 09/2007
IN THE HIGH COURT OF NAMIBIA
In the matter between:
THE STATE
and
ELIASER SHIKONGO KALINGINDO
CORAM: MULLER, J
Heard on: 23 – 24, 26 April & 02, 03, 07 May 2007
Delivered on: 08 May 2007
JUDGMENT
MULLER, J.: [1] The accused was represented by Mr Bondai of the Directorate of Legal Aid and Ms Nyoni acted for the State.
[2] The main charge of contravening s 2(1) of the Combating of Rape Act, No 8 of 2000 (the Act) as well as an alternative charge committing of attempting to commit a sexual act with a child under the age of 16 were put to the accused. He pleaded not guilty to the main and the alternative charges.
[3] On behalf of the accused Mr Bondai made the following admissions in terms of s220 of the Criminal Procedure Act, No 51 of 1977 (CPA) and handed a plea explanation in. This document was translated to the accused who confirmed it as correct. The following s 220 admissions were made:
1. The accused admits the identity of the complainant.
2. The accused admits the documents referred to in paragraph 10 of this document.
[4] The first State witness was Elina Nuule Kandjala, 18 years old, who testified that she knows the accused very well. He was from her village. On 26 October 2005 she left him at the entrance of her homestead with the complainant. She and another girl, Taimi, went to fetch water from a well. Upon their return they put water jars full in the kitchen. She heard a child crying and after a while she saw the complainant as well as the accused who left while he was whistling. Both came out of the same room. The next morning the complainant’s mother went to the accused’s homestead and to the headman and then to the police. When she was asked later, the complainant told her that they were in Madam Selma’s room and the accused attempted to beat her. Elina saw that the complainant was sweating and breathing heavily. She also said the complainant had the accused’s baby with her in Madam Selma’s room. She alleged that saw the accused and the complainant with the baby in Madam Selma’s room but they did nothing. When she asked the complainant why she was breathing and sweating, the complainant said the accused asked her that he wanted “to see if it fits”, without any further explanation. She told the complainant’s mother, Nicky, about it. Maria, the accused’s girlfriend and mother of the baby was at the time at the cucashop. Elina denied having had any relationship or love proposal from the accused or that she drank traditional beer.
[5] Elina was cross-examined in respect of her evidence that she only knew the accused for 5 days that they had a relationship, which she denied. She was further examined about the time when she saw the accused, where and when he left, as well as on the nature of the room and whether she could see the accused and the complainant inside the zink room. Finally, she was questioned about the alleged statement regarding to what the accused did.
[6] The next State witness was the magistrate of Ondangwa, Mr Namweya who presided the at s119 proceedings. The record of the s119 proceedings were handed in without objection. Mr Namweya testified that on 28 November 2005 the accused appeared before him and after his right to legal representation was explained to the accused he pleaded not guilty. The accused confirmed that he understands his rights in terms of s115 of the CPA and voluntarily made a statement in Oshiwambo, a language which the witness understands. There was a court interpreter present and the proceedings were properly interpreted. The magistrate recorded what the accused said in his own handwriting. In cross-examination it was put to the magistrate that the accused never meant to tell the Court that he wanted to have sexual intercourse with the complainant and that he was confused. Mr Namweya said he does not know why the accused say he was confused. He particularly refrained to record any s220 admissions by the accused and he only recorded what the accused said.
[7] The interpreter Mr Petrus Nghixulu testified that he interpreted at the time of the s119 proceedings what the accused said. He translated what the accused said in Oshiwambo into English. The accused understood the translation and never indicated otherwise. According to him the statement of the accused is a true reflection of what he told the court.
[8] The accused made the following statement in terms of s115 of the CPA:
“I went to the house where that child stays at 16 hours and left 17 hours. Next day police approached me to go to the police station. I had sexual intercourse with her. She permitted me to have sex with her. I did not ask how old she is. She also did not tell me. I will not dispute 10 years of age. I will speak Oshiwambo. I will accept short notice. I will call no witnesses. I will apply for legal aid.”
[9] The complainant was the next witness. The Court took particular care with her evidence, because she is a young girl of 13, 10 at the time of the incident. The Court was so arranged that the complainant could not see the accused, who was behind a one-way glass window, but he could see her and could follow the proceedings through a micro-phone and loudspeaker with the aid of an interpreter with him. A separate interpreter interpreted the complainant’s evidence. I was dressed in a suit and sat down-stairs near the complainant. In this way I believe all possible precautions were taken to avoid that the complainant would be scared of the Court proceedings, was made comfortable and could give her evidence as reliable as possible. Mr Bondai for the defence admitted that he was satisfied with the arrangements.
[10] The complainant was questioned by the Court to determine whether she understands what it means to tell the truth. The Court was satisfied and allowed her to testify, although she was not sworn in.
[11] The complainant said she was in Court because the accused raped her. He found her sleeping in a zink-room. The room was not yet completed. In the room was a bed. She had the accused’s child with her. The accused entered and started touching her breasts. She told him to stop. He did it again and said let us see “if it can fit”. He pressed both the complainant’s arms down against her sides and removed her panty. He wore a t-shirt and lifted it up. He lay on top of her and he had sexual intercourse with her. The complainant told him he was hurting her and he said he shall try not to hurt her, but if she screams, he will beat her. When the accused had finished, he left. The complainant said she informed her mother when she returned and the next morning they both went to the house of the accused where he was asked about the incident, which he denied. According to her she told Elina when she and Taimi returned from the well that the accused touched her breast and asked it will fit. She also said the accused removed her panties and has sex with her. She also said she saw the penis of the accused and that was what hurt her.
[12] In cross-examination she denied that the accused was first in the room and said he was sleeping there with the baby when the accused arrived. She confirmed that she told Taimi and Elina that the accused had sexual intercourse with her and denied the evidence of Elina when it was put to her that she did not tell her everything. She confirmed that she was sweating, which she ascribed to her struggle with the accused when he had sexual intercourse with her. She denied that there was Oshikundu. She said she told her mother what happened that evening. When asked by the Court if she knows what sexual intercourse means, she said is to sleep with somebody.
[13] Taimi confirmed Elina’s evidence to a large extend. She also knew the accused who had a child with Maria. Upon their return she saw the accused passing through the entrance. She saw the complainant did not want to talk, but told him that the accused touched her breasts wanted to see if it fits. The complainant said she cried and the accused said he will beat her. When the complainant’s mother returned the complainant told her that the accused raped her. Early the next morning the complainant and her mother went to the accused’s homestead. Cross-examination was directed at where the accused was when she and Elina left to fetch water. She confirmed that she drank Oshikundu. She did not see what happened in the zink room. She said Elina told the complainant’s mother first what happened. She was present. She later said the complainant told her mother that evening and in the morning.
[14] The mother of the complainant, J S, also called Nicky, testified that she was away that day, taking a child to the clinic. When she returned at approximately 19h30 that evening she found Taimi and Elina at home. She went to sleep and did not talk to any of the children. The next day Taimi and Elina told her after she asked them because she talked to the complainant earlier at 07h00 in response to questions by Maria of what happened the previous day between her and the accused. The complainant told her that the accused came into the room and found her lying on the bed. Understandably cross-examination was directed at the time of the report to her of what occurred and by whom i.e. the complainant or Elina or Taimi. The mother remained adamant that she first heard from Maria the next morning what the complainant told her after Maria questioned her. Thereafter she confronted the complainant and then asked Elina and Taimi. When she confronted the accused he admitted having touched the complainant’s breast, but denied that he had intercourse with her.
[15] Maria testified. She told the Court that the child is now 2 years old. She was away the particular day. She heard the complainant crying and told by Taimi that it was alleged that the accused slept with her. According to her the complainant’s mother was beating the complainant with a stick and the complainant cried because thereof. This was the next morning. The complainant said the accused slept with her. Surprisingly this incident does not seem to have harmed her feelings for the accused. She seemed more concerned about the fact that this incident caused the accused to be in custody and not able to support their child. She denied that there was ever any relationship between Elina and the accused other than that of in-laws. She said she could not believe that the accused did this.
[16] The final State witness was Dr Igor Pyrlya, who examined the complainant several days after the incident. He found no open wounds or injuries, but that the complainant’s hymen was ruptured or distended, as he calls it, indicating penetration of an object like a finger or a penis. According to him it occurred 6-8 days prior to the medical examination. If there was any injury, it might have healed. He communicated with the complainant through an interpreter and she informed him that she was raped.
[17] The accused was called to testify in his own defence. He denied that he raped the complainant or had sexual intercourse with her. According to him, he visited their home that day on the invitation of Elina to whom he proposed to have sexual intercourse with and who also accepted it. When the accused was there Elina and Taimi were on their way to fetch water. He went into the zink room where his girlfriend and their baby stayed. He sat on the bed with the complainant and his baby. Nothing happened between them. Later he left the room and drank Oshikundu with Taimi and Elina in the hall in front of the kitchen. Then he left. Elina told him that they will do the next day what they could not. The next morning he was accused of rape by the mother of the complainant. He was arrested and told by a police officer that it will be best if he admits that he raped the complainant, because his sentence will be lighter. According to him this influenced him when he appeared before the magistrate. He said he pleads not guilty, but made a statement to the magistrate to explain what happened.
[18] He was particularly confronted in cross-examination about the strange phrase the complainant, a child, used that he, the accused wanted to see if it fits, as well as the fact that he left without spending time with Elina, the reason for his visit. He was also cross-examined on his statement made to the magistrate.
[19] No other defence witness was called and Mr Bondai closed the defence case.
[20] Ms Nyoni asked the Court to convict the accused. She argued that the medical evidence confirmed that the complainant’s hymen was distended, as the doctor called it, and that the accused admitted he was alone with her in the room at a certain point in time, as well as that he admitted before the magistrate that he had sexual intercourse with her. Ms Nyoni conceded that there were some discrepancies in the evidence of the State witnesses, but submitted that these discrepancies were not on crucial or material issues.
[21] Mr Bondai concentrated on the discrepancies and submitted that they were in fact material to the extent that the Court would not know who to believe or not. He submitted that the version of the accused should be believed and that the accused’s statement to the magistrate is a result of his confusion after being told by the police that it would be better for him to admit the offence and that he was nervous. He also argued that the fact the doctor examined the complainant 4 days after the event and found that she had intercourse 6-8 days before, means that she had prior intercourse. He submitted that the State has failed to prove guilt of the accused beyond reasonable doubt and that he should be acquitted.
[22] I have not doubt that the statement that the accused made to the magistrate was voluntarily made and not influenced by any threat or inducement by the police. The magistrate, Mr Namweya’s evidence is absolutely reliable and is supported by that of the interpreter in respect of the statement. In that statement the accused related what happened on that day and admitted that he had sexual intercourse with the complainant. His lame excuse in this Court of being confused and nervous, is rejected. His admission of sexual intercourse is confirmed by the findings of the doctor. Although this examination was 4 days later and the doctor said the indications were that she has sexual intercourse 6-8 days before the examination is his opinion and not an exact fact. At least it confirms that she had sexual intercourse a few days before the examination. I do not accept the speculation that she might have had sexual intercourse prior to that with the accused. The doctor said she was not sexually active and she was only 10 years old at the time.
[23] I do not believe the accused’s version as contained in the statement that she gave permission for the sexual intercourse. Her whole demeanour after that and her report to the others, support this. I agree with Ms Nyoni that the complainant’s description and the phrase she used and which is corroborated by Elina and Taimi is unusual and unique. Even the accused found it strange. She said the accused said he wanted to see if it fits, meaning whether his thing would fit into her thing. Not only is it unusual, but it corresponds with the conduct of an adult who wants to see of he can have sex with a young child. I accept her evidence that this is exactly what the accused said and I also accept her evidence that he did not only wanted to see if it fits, but continued to rape her. She cried and experienced pain, but he continued.
[24] I also agree with Ms Nyoni that there are contradictions in the evidence of the witnesses, namely between that of Elina and Taimi and the complainant as well as between that of Maria and the complainant’s mother, but that these contradictions are not so material that their evidence are not reliable. It was a long time ago and most of the witnesses are still young. I would expect differences in their relations of what they heard or saw. I would be more suspicious if their descriptions were exactly the same. The point is that the complainant did report the incident, even if she was beaten by her mother. I believe the evidence of the complainant of what occurred between her and the accused. Her evidence does not leave room for any other interpretation then that the accused committed a sexual act with her against her will and even threatened her.
[25] The doctor did not find any injuries to the complainant, but she had sexual intercourse and her hymen was ruptured, by what I found had been done by the accused.
[26] I totally reject the story of the accused that he visited the homestead to have sex with Elina. She denied it. Why would she call him if she did not know Maria would not be there? Furthermore, even if she agreed to have sex with him, the fact that Taimi and the complainant would be there did not put him off to turn up at the homestead. Nothing had changed when they returned from the well, but the accused left. Maria’s evidence also excludes the accused’s version and I believe her evidence and reject that of the accused.
[27] In the circumstances the accused is convicted of the main charge, namely a contravention of s 2(1) of the Combating of Rape Act, No 8 of 2000.
___________
MULLER, J
ON BEHALF OF THE STATE: MS I. NYONI
INSTRUCTED BY: OFFICE OF THE PROSECUTOR-GENERAL
ON BEHALF OF THE DEFENCE: MR G. BONDAI
INSTRUCTED BY: DIRECTORATE OF LEGAL AID
CASE NO.: CC 09/2007
IN THE HIGH COURT OF NAMIBIA
In the matter between:
THE STATE
and
ELIASER SHIKONGO KALINGINDO
CORAM: MULLER, J
Heard on: 09 May 2007
Delivered on: 10 May 2007
SENTENCE
MULLER, J.: [1] The accused was convicted of raping a young girl, S R, in terms of s 2(1) of the Combating of Rape Act, No 8 of 2000.
[2] No previous convictions were proved.
[3] The accused did not testify in mitigation, but his counsel made certain submissions from the bar. At the outset Mr Bondai informed the Court that he cannot make any submission that there exist any substantial and compelling circumstances which would justify another sentence than the minimum prescribed mandatory sentences contained in the Act. He merely referred to certain personal circumstances of the accused. These are that the accused is now 23 years of age, but 21 years old at the time of the offence, has a clean record and is the father of one child that he has with the complainant’s sister, Maria. He is the third child out of 10 and lives with his parents whom he assists in tending the field. The offence was not committed with pre-meditation and the complainant did not sustain any external injuries or bruises.
[4] Ms Nyoni emphasised that the young age of the complainant and the accused’s selfish urge to satisfy his own needs to take away her innocence make this a very serious offence. She referred to several decisions by this Court and South African Courts where rape was condemned and to the interests of Namibian society, which requires severe punishment for this type of offence. I shall deal with these decisions and the relevant interests later herein.
[5] In considering what an appropriate sentence for the accused should be, the Court considers the elements of retribution, prevention, deterrence and reformation or rehabilitation and attempts to incorporate a combination thereof in the sentence to be imposed. Furthermore, a balance of the circumstances relating to the accused, the crime and society, coupled with a blend of mercy is the aim that the Court’s attempts to achieve when imposing an appropriate sentence. (S v Zinn 1969 (2) SA 537 (A) and S v Rabie 1975 (4) SA 855 (A)).
[6] The personal circumstances of the accused are negligible compared to the other interests that should be considered. The offence is a serious one. The accused was a grown-up man with a child with Maria. He went to Maria’s house and raped her young sister, only 10 years old at the time. From what he said, he knew that his penis would probably not fit into the female parts of such a young child. That is why he said “let us see if it fits.” He threatened the complainant that he will beat her if she cries. One finds it hard to imagine that the accused was prepared to ravish his girlfriend’s own sister against her will even while his own child, who could fortunately not understand anything, was also in the room. He did this while he knew Elina and Taimi were away and he was alone with the complainant. The humiliation of the complainant to be abused in this way by a person she knew had a relationship with her sister and a child, must have been huge. The emotional scars of the complainant cannot be forgotten, even if no physical injuries were detected by the doctor. The accused violated her innocence and probably destroyed her future.
[7] What would society expect of a court to do in these circumstances? This is the question that I have to answer. Ms Nyoni referred me to several cases where the courts and in particular Namibian Courts emphasised the expectations of the Namibian society. She referred me to S v Matolo and Another 1998 (1) SACR 206 (O) where the following dictum by Lombard, J, previously a practising Namibian Advocate, was approved by Maritz, J in the case of Erich Rudath v S, Case No.: CA 109/1998:
“In cases like the present the interests of society is a factor which plays a material role and which requires serious consideration. Our country at present suffers an unprecedented, uncontrolled and unacceptable wave of violence, murder, homicide, robbery and rape. A blatant and flagrant want of respect for the life and property of fellow human beings has become prevalent. The vocabulary of our courts to describe the barbaric and repulsive conduct of such unscrupulous criminal is being exhausted. The community craves the assistance of the courts: its members threaten, inter alia, to take the law into their own hands.
Maritz, J added in the case of Erich Rudath v S, supra, page 4, the following:
“There is a public outcry for more effective and more stringent measures to reduce the occurrence thereof. So universal and compelling has public opinion rallied against perpetrators that legislation is presently under consideration in Parliament to address and combat crimes of that nature more effectively.”
That legislation that Maritz, J referred to is the Combating of Rape Act, No 8 of 2000, which is a culmination of the feeling of society and introducing mandatory minimum sentences. Unfortunately, this type of offence still continues to be committed in Namibia, even on young children, as in this case. One often wonders whether society does its duty to communicate to its members the sentences that are imposed by the courts. Of course the court has a responsibility to impose such sentences as to deter not only the perpetrator, but also other members of society who may consider to commit such an offence.
[8] I have considered all the relevant interests and elements regarding punishment. I have no doubt that the accused should be punished severely and that s 3(1) (a) (iii) (bb)(A) provides for a mandatory sentence of 15 years where a child younger than 13 is raped.
[9] Ms Nyoni submitted that an appropriate sentence for this accused should be much heavier than the minimum mandatory sentence of 15 years and suggested that a sentence of 25 to 30 years should be imposed. Despite all the aggravating circumstances of the offence and expectations of society which she referred to in her argument, and with which I agree, I do not agree with the sentence suggested. The accused is 21 years old and still relatively young. I believe that he may be rehabilitated and, although only a long term imprisonment would be appropriate punishment for his deed and would satisfy the country, part thereof should be suspended, to hang over his head for a relative long time and allow him to regain a place in society when he is released.
[10] In all the circumstances I believe the following sentence, which I impose on the accused, is an appropriate and suitable sentence:
“The accused is sentenced to 20 years imprisonment of which 5 years are suspended for a period of 5 years on condition that the accused is not convicted of the offence of Rape in contravention of s 2(1) of the Combating of Rape Act, No 8 of 2000, committed within the period of suspension.”
__________
MULLER, J
ON BEHALF OF THE STATE: MS I. NYONI
INSTRUCTED BY: OFFICE OF THE PROSECUTOR-GENERAL
ON BEHALF OF THE DEFENCE: MR G. BONDAI
INSTRUCTED BY: DIRECTORATE OF LEGAL AID
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