High Court issues Rape Act guidelines

AN appeal by a young man who was sentenced to 16 years’ imprisonment for raping a 13-year-old girl at Otavi close to three years ago has resulted in the High Court issuing guidelines on how people should be sentenced in terms of the Combating of Rape Act.

The Act has been in force for over five years, but the judgement in the appeal that convicted rapist Levi Gurirab had launched against his sentence was the first time that the High Court has given detailed guidelines on how people convicted under this law should be sentenced. The impact of the guidelines given on Tuesday last week by Acting Judge Raymond Heathcote in a judgement with which Judge Elton Hoff agreed, may go wider than just convictions under the Combating of Rape Act.In the judgement, Acting Judge Heathcote specifically dealt with the Act’s prescribed minimum prison sentences, which have to be imposed on convicted rapists unless there are “substantial and compelling circumstances” that would warrant a lesser sentence.Both the amended Stock Theft Act, which lays down severe minimum sentences for stock thieves, and Namibia’s new Criminal Procedure Act, which likewise prescribes minimum sentences for an array of offences, also allow courts to impose lesser sentences only if there are “substantial and compelling circumstances”.Acting Judge Heathcote’s judgement on Gariseb’s appeal could thus turn out to provide guidance not only on the way that offenders have to be sentenced in terms of the Combating of Rape Act, but also under other laws prescribing minimum sentences.One common denominator that has to be present at all trials in Namibia, being the requirement of fairness, may see to that.The Combating of Rape Act’s sentencing provisions should be read carefully to figure out exactly what sort of minimum sentence a particular rape would attract, Acting Judge Heathcote indicated in the judgement.For an unrepresented accused, it would probably be a confusing matter to figure out, he remarked.Namibia’s High Court has already pronounced itself on what would be considered “substantial and compelling circumstances”, but despite that judgement from Judge Nic Hannah, the concept remains quite difficult to grasp.Through Judge Hannah’s decision the High Court has accepted that the concept would encompass “truly convincing” reasons for a sentence that is lighter than the prescribed terms of imprisonment.The line that has been laid down is that courts would not be allowed to deviate from the prescribed sentences lightly or for flimsy reasons, but may do so only if the cumulative effect of mitigating circumstances in a case is such that a prescribed minimum sentence would be considered unjust.That would be the case if the sentence would be disproportionate to the crime, the criminal and the needs of society, and that an injustice would be done by imposing the prescribed minimum term.Acting Judge Heathcote also reasoned along those lines in Gariseb’s appeal case.However, he added that in the sentencing part of his trial, Gariseb did not receive a fair trial, because he was not properly informed of the Combating of Rape Act’s sentencing provisions and under what circumstances the court could have deviated from the law’s prescribed sentences.The Acting Judge commented: “What is at stake is that any undefended or unrepresented accused should be afforded a fair trial.Fairness is hardly capable of being achieved, if an accused is uninformed.”He listed four points as guidelines that should be implemented in respect of the Combating of Rape Act.These are that Magistrates have to properly inform the accused about the sort of sentence that they may face, the scenarios under which a lesser sentence may be imposed, and what sort of facts an accused person would have to place before the court before the Magistrate could decide to impose a lighter sentence.It is imperative that an accused should be assisted during this sentencing process, Acting Judge Heathcote continued.According to the Acting Judge he had little hesitation in concluding that an irregularity occurred which violated the sentencing part of Gariseb’s trial: “He was simply never properly informed about the applicability of any minimum prescribed sentence or what the meaning of ‘substantial and compelling circumstances’ is.”He directed that Gariseb should be sentenced afresh by the Magistrate who had dealt with his case, but this time after the court had complied with the High Court’s guidelines.The impact of the guidelines given on Tuesday last week by Acting Judge Raymond Heathcote in a judgement with which Judge Elton Hoff agreed, may go wider than just convictions under the Combating of Rape Act.In the judgement, Acting Judge Heathcote specifically dealt with the Act’s prescribed minimum prison sentences, which have to be imposed on convicted rapists unless there are “substantial and compelling circumstances” that would warrant a lesser sentence.Both the amended Stock Theft Act, which lays down severe minimum sentences for stock thieves, and Namibia’s new Criminal Procedure Act, which likewise prescribes minimum sentences for an array of offences, also allow courts to impose lesser sentences only if there are “substantial and compelling circumstances”.Acting Judge Heathcote’s judgement on Gariseb’s appeal could thus turn out to provide guidance not only on the way that offenders have to be sentenced in terms of the Combating of Rape Act, but also under other laws prescribing minimum sentences.One common denominator that has to be present at all trials in Namibia, being the requirement of fairness, may see to that.The Combating of Rape Act’s sentencing provisions should be read carefully to figure out exactly what sort of minimum sentence a particular rape would attract, Acting Judge Heathcote indicated in the judgement.For an unrepresented accused, it would probably be a confusing matter to figure out, he remarked.Namibia’s High Court has already pronounced itself on what would be considered “substantial and compelling circumstances”, but despite that judgement from Judge Nic Hannah, the concept remains quite difficult to grasp.Through Judge Hannah’s decision the High Court has accepted that the concept would encompass “truly convincing” reasons for a sentence that is lighter than the prescribed terms of imprisonment.The line that has been laid down is that courts would not be allowed to deviate from the prescribed sentences lightly or for flimsy reasons, but may do so only if the cumulative effect of mitigating circumstances in a case is such that a prescribed minimum sentence would be considered unjust.That would be the case if the sentence would be disproportionate to the crime, the criminal and the needs of society, and that an injustice would be done by imposing the prescribed minimum term.Acting Judge Heathcote also reasoned along those lines in Gariseb’s appeal case.However, he added that in the sentencing part of his trial, Gariseb did not receive a fair trial, because he was not properly informed of the Combating of Rape Act’s sentencing provisions and under what circumstances the court could have deviated from the law’s prescribed sentences.The Acting Judge commented: “What is at stake is that any undefended or unrepresented accused should be afforded a fair trial.Fairness is hardly capable of being achieved, if an accused is uninformed.”He listed four points as guidelines that should be implemented in respect of the Combating of Rape Act.These are that Magistrates have to properly inform the accused about the sort of sentence that they may face, the scenarios under which a lesser sentence may be imposed, and what sort of facts an accused person would have to place before the court before the Magistrate could decide to impose a lighter sentence.It is imperative that an accused should be assisted during this sentencing process, Acting Judge Heathcote continued.According to the Acting Judge he had little hesitation in concluding that an irregularity occurred which violated the sentencing part of Gariseb’s trial: “He was simply never properly informed about the applicability of any minimum prescribed sentence or what the meaning of ‘substantial and compelling circumstances’ is.”He directed that Gariseb should be sentenced afresh by the Magistrate who had dealt with his case, but this time after the court had complied with the High Court’s guidelines.