High Court of Namibia Northern Local Division, Oshakati s1

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI

APPEAL JUDGMENT Case no CA 12:/2012 In the matter between:

MUHONGO JOACHIM DANIEL APPELLANT and

THE STATE RESPONDENT

Neutral citation: Muhongo v The State (CA 12/2014) [2012] NAHCNLD 17

(7 March 2016)

Coram: TOMMASI J and JANUARY J

Delivered: 7 March2016

Flynote: Criminal Procedure ― Appeal ― Application for condonation ― Right to appeal not properly explained ― No indication that appellant understood-appellant lay person-reason for delay in circumstances reasonable.

Summary: The appellant was convicted for rape in contravention of section 2(1)(a) read with the relevant sections of the Combating of Rape Act 8 of 2000 after he pleaded not guilty. The appeal is against both conviction and sentence. It was submitted that sexual intercourse was not proven and that the conviction should be set aside. Held that sexual intercourse was indeed proved. It was further submitted that the sentence was

1 disproportionate and should be interfered with. The court found that the magistrate misdirected himself by finding that he had no option but to impose the minimum sentence of 15 years imprisonment. Condonation was granted and the appeal against conviction was dismissed. The court upheld the appeal against sentence.

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1. The appellant's application for condonation for the late filing of his appeal against conviction and sentence is granted.

2. The appeal against conviction is dismissed.

3. The sentence of the Regional court magistrate is set aside.

4. The appellant is sentenced to 13 (thirteen) years imprisonment of which 3 (three) years are suspended on condition that the appellant does not commit the crime of rape within the period of suspension.

5. The sentence is antedated to 17 December 2007, the date on which the appellant was sentenced

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APPEAL JUDGMENT

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JANUARY J, TOMMASI J (CONCURRING)

2 [1] The appellant in this matter was convicted in the Regional Court, Outapi on a charge of rape in contravention of section 2(1)(a) read with sections 1, 2(2), 2(3), 3, 4, 5, 6, and 7 of the Combating of Rape Act, Act 8 of 2000. He pleaded not guilty. The appellant was sentenced on 17 December 2007 to 15 (fifteen) years imprisonment. He was unrepresented. This appeal is against both conviction and sentence.

[2] The appellant’s right to appeal was explained to him after sentence on the above mentioned date as follows;

“Accused if you are not satisfied with the decision of this court whether with regard to the conviction or whether with regard to the sentence, you may note an appeal with the Clerk of Court within fourteen days from today.”

There is no indication of an enquiry on whether the accused understood or not.

[3] The appellant filed his notice of appeal on 06 April 2009 despite the explanation of his right quoted above. He filed his reasons for the delay on 30 June 2011 wherein he stated that he could not file the notice timely due to his ignorance of the law and court proceedings. He thus experienced difficulty to obtain assistance from another inmate as the prison where he was incarcerated was a new environment and he did not know the fellow inmates.

[4] Ms Mainga eventually was appointed by the Directorate Legal Aid to represent the appellant in this appeal. She withdrew the initial notice of appeal, filed a new notice of appeal and application for condonation with a supporting affidavit of the appellant. The appellant stated in addition to his previous reasons for the delay in filing the notice of appeal timely, that;” although my rights to appeal were explained to me, I did not fully comprehend the importance thereof as I was shocked by my sentence”. The grounds of appeal are as follows;

3 1. AD CONVICTION

1.1 The Learned Magistrate erred on the facts and/or the law when he found that the Appellant had sexual intercourse with the complainant on the following grounds:

1.1.1 the complainant in her evidence never testified that the Appellant had sexual intercourse with her;

1.1.2 the complainant testified that the Appellant did naughtiness on her but she did not know what she was naughtiness;

1.1.3 the medical evidence clearly contradicts the evidence of the complainant and the second state witness, especially in relation to the hymen having old tears whilst it was testified that the complainant had been injured no more than 5 days after the incident;

1.2 The Learned Magistrate erred in law and/or the facts in not having treated the complainant’s evidence with caution and especially in light of the contradictions between what she told the second state witness and what she testified to under oath.

2. AD SENTENCE

2.1 The Learned Magistrate erred in law in concluding that the only other option that

the court had was to sentence the Appellant to a period of 15 years when it was evident that the Appellant was about 17 years at the time of the commission of the offence and the provisions of section 3(3) of the Combating of Rape Act 8 of 2000 was applicable;

2.2 The sentence imposed is harsh under the circumstance and induces a sense of

Shock.

4 2.3 The Learned Magistrate did not assist the Appellant during mitigation and failed to

properly explain the purport of compelling and substantial circumstances.

2.4 The Learned Magistrate did not take the youthfulness of the Appellant into

consideration.

[5] The respondent, represented by Mr Wamambo, raised a point in limine and opposed the application for condonation of the late filing of the notice of appeal. He referred to the fact that the right to appeal was explained to the appellant as is reflected in the record. I have already quoted the explanation verbatim and I also indicated that there is no indication in the record of whether the appellant understood or not.

[6] This court has a discretion to be exercised judicially in deciding if condonation should be granted or not. I am further guided by principles crystalized over years by our courts.

“ In granting an application for condonation, the Court exercises its discretion judicially depending on the circumstances of each case. The Courts have over the years determined certain factors as guiding principles in granting condonation applications for the non-observance of Court Rules. In Melanie v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532C-D Holmes JA made the following seminal observations:

”In deciding whether sufficient cause has been shown, the basic principle is that the Court has a discretion, to be exercised judicially upon a consideration of all facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefor, the prospects of success, and the importance of the case. Ordinarily these facts are interrelated: they are not individually decisive, for that would be a piecemeal approach incompatible with a true discretion, save

5 of course that if there are no prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus, a slight delay and a good explanation may help to compensate for the prospects of success which are not so strong. Or the importance of the issue and strong prospects of success may tend to compensate for a long delay…” 1

[7] In the normal course of events ignorance of the law or proceedings is not a reasonable explanation for an appellant to wait for a year or longer before he/she files a notice of appeal. That is when it is beyond doubt that his /her rights to appeal were properly explained and a clear indication that it was understood at the time.

[8] In my view, the explanation of the right to appeal by the learned magistrate in this case, with respect, falls short of what is required. Furthermore there is no indication by the appellant whether he understood what was explained. In these circumstances I find the explanation of the accused on this aspect to be reasonable. In addition I find that there are prospects of success on appeal at least in relation to the sentence as will become evident in dealing with the merits of the appeal in this judgement.

[9] Condonation for the late filing is accordingly granted.

[10] The mother of the complainant testified that the complainant was born on 29 th October 2000. The complainant does not have a birth certificate.

[11] The complainant testified that at the time of her testimony on 17 December 2007 she was 7 years old and attending school in grade 1. She testified that on the day of the incident she was coming from school and met the accused pushing a wheelbarrow. The

1 Herold Uenjadjoza Mutjavikua v The State CA 53/2003, Unreported, Delivered 16 March 2012

6 accused loaded her on the wheelbarrow and they went home. She changed her school (kindergarten) clothes and dressed into other clothes. The accused then pulled her into his room. He put Vaseline between her legs after he removed her panty. The accused also put Vaseline between his legs. At the time she was lying on the bed on her back. The witness later pointed to her vagina where the Vaseline was put.

[12] The complainant testified that after the accused rubbed Vaseline on his “hyena, okambungu, penis” he had done “naughty” to her. On further questioning the witness could not clarify what she meant by stating “he did naughty things”. Later on she stated: “He was sleeping on top of me.” The record further reflects as follows;

“…Just hold on. I want to understand and I am sure the Court also want (sic) to understand. The accused has put some Vaseline on your vagina and he has also put some Vaseline on his okambungu, his hyena and he lay on top of you did he just lie on top of you and just end there, what happened? ---- (answer) With his naughtiness.

His naughtiness, how did he do the naughtiness?

---- I do not know.

Did you feel anything? --- Yes

What did you feel? --- I was feeling pain.

Where did you feel the pain? --- Between my legs (Witness indicates)

When you felt this pain on your vagina what was actually happening? --- Naughtiness.

….When this naughtiness was taking place where was Lucas? At their house.

Okay. You said you felt pain when he was on your vagina when he was doing this naughtiness, what did he do when you felt this pain on your vagina? ---From there I just started feeling pain between my legs.”

7 [13] The evidence of the complainant was not challenged by the accused. In my view the complainant described the incident as best as her experience and understanding allowed. In these circumstances, I conclude that what she described was sexual intercourse. She did not mention penetration but experienced pain on her vagina. She further testified how the accused rubbed Vaseline on his penis and that he was sleeping on her. Why else would a person rub Vaseline on a person’s vagina, then on his penis, laying on the person whose vagina was rubbed with Vaseline and does nothing? The complainant experienced pain in her vagina. The only reasonable inference in these circumstances is that sexual intercourse took place.

[14] The State called another witness who is the wife of a person where the accused was employed as a cattle herder. This witness confirmed the date of 06 November 2006 when the alleged incident took place. She had to return to her house between 13h00 and 14h00 because she forgot a cell phone. Upon her return she met with the accused at a door or gate side coming from the house. She enquired from the accused about the cell phone and thereafter proceeded into the house. She found the complainant at the door of their room wearing her panty in an abnormal manner. She enquired about the panty from the complainant. The complainant reported to her that it was the accused that caused her to wear the panty in the manner she did. The complainant reported to her that the accused called her into his room saying that she must lie on the bed. The complainant further reported that the accused then rubbed Vaseline between her legs at her vagina and had sexual intercourse with her. She looked at the vagina and saw that it was a bit open. She reported the matter to the police.

[15] The complainant was eventually taken to Okahao hospital where she was hospitalized for 3 days and then taken to Oshakati for examination. The witness further testified that the complainant informed her that the incident of 06 November 2006 was apparently not the first time that it happened and that there were other incidents too.

8 The witness testified about a blood spot that she observed on the panty of the complainant prior to the day of the incident. Upon enquiry the complainant responded; “mother that blood is again the accused who has grabbed me or caught me and then he had been naughty to me and then the blood came out.” The complainant did not testify to that effect but stated that the blood spot was observed on the day of the incident.

[16] A medical report (J88) was handed up in court with the consent of the accused. Therein it is indicated that the hymen was torn with old tears. It is further indicated that the injury do fit with the time and circumstances of the alleged incident.

[17] Ms Mainga submitted that no sexual act was proven, that the medical evidence is not reliable and that there were material inconsistencies between the complainant and the last witness called by the State.

[18] I already found that the evidence of the complainant indicates that sexual intercourse took place. Her evidence, in my view, is corroborated by the medical report that the hymen was torn with old tears. The injury does fit with the time and circumstances of the alleged incident.

[19] I cannot find any material inconsistency in relation to the evidence pertaining to the incident of 06 November 2006 by the complainant and the witness to whom she reported the incident. The corroborating witness testified that the accused had sexual intercourse with the complainant but did not specifically quote what was reported to her. Later on in her evidence in relation to the blood spot on the panty she testified that the complainant said; “mother that blood is again the accused who has grabbed me or caught me and then he had been naughty to me and then the blood came out.” I find it significant that the witness did not testify here about sexual intercourse but naughtiness as the

9 complainant testified about in court. In all probability the testimony about sexual intercourse is how the witness interpreted it from what the complainant reported to her.

[20] I do not find any misdirection in relation to the conviction. Accordingly the conviction is confirmed.

[21] In relation to the sentence imposed, the learned magistrate was of the view that he had no other option but to impose the minimum sentence. In this regard, the age of the accused at the time of the commission of the crime is important. It is common cause that the accused was 18 years old at the time that he was sentenced. The charge sheet however alleged that he was 18 years old at the time that the crime was committed. No evidence was presented to proof that the accused was 18 years old when he committed the crime or to gainsay what the accused informed the court during sentencing that he is 18 years old.

[22] It is common cause that the crime was committed on 06 November 2006. The accused was sentenced on 17 December 2007. It is therefore about 1 year and 11days after the crime was committed that the accused was sentenced. He must therefore have been at least at the age of 17 years old.

[23] Section 3(3) of the Combating of Rape Act, Act 8 of 2000 provides:

(3) The minimum sentences prescribed in subsection (1) shall not be applicable in respect of a convicted person who was under the age of eighteen years at the time of the commission of the rape and the court may in such circumstances impose any appropriate sentence.

10 [24] The magistrate could therefore have imposed an appropriate sentence and not the minimum sentence without any option as he thought. . Furthermore the provision of a minimum sentence in the Combating of Rape Act does not take away the discretion of the magistrate. I agree with Van Niekerk J where she stated as follows in S v Limbare 2006 (2) NR 505 (HC) at p508 B -

“[7] In my view sentencing provisions contained in s 3 of Act 8 of 2000 limit, but do not take away, the trial court's discretion to impose a proper sentence based on all the circumstances of the case. The Act does not require sentencing according to a formula in which the discretion of the sentencing officer has no role to play. In other words, it is not a matter of placing the particular offence of rape into a certain category according to its circumstances and then imposing the minimum prescribed sentence as if it follows automatically and without any further consideration of what a proper sentence would be.”

The magistrate, with respect, misdirected himself in this regard.

[25] In the normal course of events it would have been appropriate to remit the case to the magistrate to consider the sentencing afresh. I have decided against that because the appellant was sentenced on 17 December 2007 and to remit the matter at this stage might be prejudicial to the appellant.

[26] This court is justified to consider sentence afresh. An appeal court can only interfere with a sentence when (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-emphasised 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.2

2 See; S v Tjiho 1991 NR 361 HC at p366 A-C

11 [27] The crime is no doubt serious. It was a 6 year old girl who was raped in the confines of her home, the place where she should feel save. The appellant was convicted of the crime of rape under coercive circumstances being those circumstances mentioned in s 2(2)(d) of Act 8 of 2000, 'circumstances where the complainant is under the age of fourteen years and the perpetrator is more than three years older than the complainant'.

[28] I agree with Liebenberg J where he stated;

[9] When regard is had to the circumstances of this case, including the personal circumstances of the accused and in particular his youthfulness and the fact that he is a first offender, I am of the view that, although the aforementioned factors are weighty in sentencing, the accused cannot today escape punishment simply because of his young age when he committed the crime. It seems worthwhile repeating that young offenders cannot (always) hide behind their youthfulness when they are guilty of committing serious crime. The message should also be clear to young people that they will not simply be excused by the courts on account of youthfulness and go out scot-free; but, where justice will not otherwise be done; they will be held accountable and punished accordingly for the pain and misery caused to others as a result of serious crimes committed by them. Although the young age of an offender is usually regarded as a mitigating factor counting in favour of the accused person, it is merely one of several factors that needs to be considered when sentencing.3

[29] The appellant was in custody for about 1 year and 11 months awaiting his trial. His personal circumstances are that he was about 17 years old, relatively youthful, when the crime was committed and 18 years old at the time of sentence. He completed

3 S v K 2011 (1) NR 1 (HC)

12 grade 3 at school. He has I (one) child and he was doing casual work at the time before his arrest. The appellant is a first offender.

[30] The charge alleges that the crime was committed on diverse occasions, that the applicant applied physical force to the complainant and threatening by word or conduct to apply physical force against the complainant. The complainant emphatically testified only of one occasion. She testified that the applicant pulled her into his room and that she experience pain on her vagina. She mentioned nothing about physical force or threats of force. The witness who found her wearing the panty abnormally testified that the complainant told her that the incident was not the first occasion. Apparently the complainant also told her that the applicant threatened to beat her. This evidence is hearsay in the absence of the complainant’s testimony to that effect

[31] In my view, cumulatively the circumstances and factors in this case constitute substantial and compelling circumstances justifying this court to conclude that the sentence of 15 years is unjust in the circumstances.

[32] The sentence in my view, should be, considering the abovementioned factors and the personal circumstances of the appellant which are that he was about 17 years of age at the commission of the crime, having completed grade 3, employed as a casual worker, a father of 1 (one) child and at the time of sentence, 18 years old, a first offender, a partial suspended sentence.

[33] In the result the following order is made;

1. The appellant's application for condonation for the late filing of his appeal against conviction and sentence is granted.

13 2. The appeal against conviction is dismissed.

3. The sentence of the Regional court magistrate is set aside.

4. The appellant is sentenced to 13 (thirteen) years imprisonment of which 3 (three) years are suspended on condition that the appellant does not commit the crime of rape within the period of suspension.

5. The sentence is antedated to 17 December 2007, the date on which the appellant was sentenced

______HC JANUARY

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MA TOMMASI

Appearance

For the Appellant: Ms Mainga

Of Maingas’ Attorney

Instructed by Legal Aid

For the Respondent: Adv Wamambo

Of Prosecutor General Office Oshakati