High Court throws light on Rape Act sentence options

COURTS sentencing convicted rapists under the Combating of Rape Act of 2000, which lays down stiff minimum sentences for rapists, have more discretion to decide on appropriate sentence than may have been generally thought until now, according to a new judgement of the High Court.

The Combating of Rape Act directs courts to impose minimum sentences ranging from five years’ imprisonment for certain types of rape committed by a first offender, to a minimum sentence of as much as 45 years’ imprisonment for a repeat rapist for certain types of rape, such as child or gang rape. Courts can only deviate from these prescribed sentences if “substantial and compelling circumstances” exist which justify a lesser sentence to be imposed, the Act also states.The Act itself however does not define what such “substantial and compelling circumstances” would be, with the result that since this law came into operation in mid-June 2000, Namibian courts have had to try to figure out for themselves under just what circumstances they would be entitled to deviate from the law’s prescribed sentences.The latest in a short line of High Court judgements that could give guidance in the issue, came from Judge Kato van Niekerk last week.She gave judgement in an appeal that Frans Limbare, a prisoner serving a 10-year jail term for having raped a neighbour’s wife in early October 2000, had lodged against the sentence that he received in the Walvis Bay Regional Court in February 2002.The end result of Judge Van Niekerk’s appeal judgement was that Limbare’s sentence was set aside and that his case was referred back to the Walvis Bay Regional Court, where the Magistrate who presided over his trial will have to sentence him again.This time, however, the Judge also directed, it must be properly explained to Limbare that he is liable to be sentenced to a mandatory minimum term of 10 years’ imprisonment, and also that if the court is satisfied that there are substantial and compelling circumstances which justify the imposition of a lesser sentence, the court will enter those circumstances on the record of the case and may impose a lesser sentence.The Magistrate must also take into account the length of time that Limbare has already been in prison, the Judge ordered.The Combating of Rape Act’s prescription of minimum sentences limit, but do not entirely take away, a court’s discretion to impose a proper sentence based on all the circumstances of a case, Judge Van Niekerk reasoned in her judgement.”The Act does not require sentencing according to a formula in which the discretion of the sentencing officer has no role to play,” she stated.”Substantial and compelling circumstances” are furthermore not required to be “special” or “exceptional” circumstances, Judge Van Niekerk also remarked.She stated: “It also does not mean that the ‘normal’ circumstances which are usually considered by the sentencing court as part of the process of arriving at an appropriate sentence, such as the personal circumstances of the offender, for example his age, education, employment and family circumstances, must be ignored because they are the ‘usual’ circumstances that one encounters in most cases.They are relevant and must be taken into consideration to be weighed cumulatively with all the other factors in order to decide whether there are substantial and compelling circumstances.”Courts should not deviate from the prescribed sentences without solid reason for doing so, though, Judge Van Niekerk added.She quoted from a South African Supreme Court of Appeal case on the same issue to demonstrate her stance, saying: “The specified sentences were not to be departed from lightly and for flimsy reasons which could not withstand scrutiny.Speculative hypotheses favourable to the offender, maudlin sympathy, aversion to imprisoning first offenders, personal doubts as to the efficacy of the policy implicit in the amending legislation, and like considerations were equally obviously not intended to qualify as substantial and compelling circumstances.”It is the cumulative effect of the circumstances of a case – and each of those circumstances need not be “special” or “exceptional” in itself – that would warrant a court to deviate from the sentences prescribed in the law, she pointed out.In Limbare’s case, she stated, circumstances that should have received serious consideration before he was sentenced include evidence that a small degree of force was used during the rape, that there were no injuries caused except pain to the complainant’s stomach or arm, and that Limbare had spent close to a year in custody before his case was finalised and he was sentenced.The Walvis Bay Regional Court will have to take these factors, as well as others that may be placed before it, into account when Limbare has to be sentenced afresh.Judge Van Niekerk ordered that Limbare should remain in custody until he has been re-sentenced.Courts can only deviate from these prescribed sentences if “substantial and compelling circumstances” exist which justify a lesser sentence to be imposed, the Act also states.The Act itself however does not define what such “substantial and compelling circumstances” would be, with the result that since this law came into operation in mid-June 2000, Namibian courts have had to try to figure out for themselves under just what circumstances they would be entitled to deviate from the law’s prescribed sentences.The latest in a short line of High Court judgements that could give guidance in the issue, came from Judge Kato van Niekerk last week.She gave judgement in an appeal that Frans Limbare, a prisoner serving a 10-year jail term for having raped a neighbour’s wife in early October 2000, had lodged against the sentence that he received in the Walvis Bay Regional Court in February 2002.The end result of Judge Van Niekerk’s appeal judgement was that Limbare’s sentence was set aside and that his case was referred back to the Walvis Bay Regional Court, where the Magistrate who presided over his trial will have to sentence him again.This time, however, the Judge also directed, it must be properly explained to Limbare that he is liable to be sentenced to a mandatory minimum term of 10 years’ imprisonment, and also that if the court is satisfied that there are substantial and compelling circumstances which justify the imposition of a lesser sentence, the court will enter those circumstances on the record of the case and may impose a lesser sentence.The Magistrate must also take into account the length of time that Limbare has already been in prison, the Judge ordered.The Combating of Rape Act’s prescription of minimum sentences limit, but do not entirely take away, a court’s discretion to impose a proper sentence based on all the circumstances of a case, Judge Van Niekerk reasoned in her judgement.”The Act does not require sentencing according to a formula in which the discretion of the sentencing officer has no role to play,” she stated.”Substantial and compelling circumstances” are furthermore not required to be “special” or “exceptional” circumstances, Judge Van Niekerk also remarked.She stated: “It also does not mean that the ‘normal’ circumstances which are usually considered by the sentencing court as part of the process of arriving at an appropriate sentence, such as the personal circumstances of the offender, for example his age, education, employment and family circumstances, must be ignored because they are the ‘usual’ circumstances that one encounters in most cases.They are relevant and must be taken into consideration to be weighed cumulatively with all the other factors in order to decide whether there are substantial and compelling circumstances.”Courts should not deviate from the prescribed sentences without solid reason for doing so, though, Judge Van Niekerk added.She quoted from a South African Supreme Court of Appeal case on the same issue to demonstrate her stance, saying: “The specified sentences were not to be departed from lightly and for flimsy reasons which could not withstand scrutiny.Speculative hypotheses favourable to the offender, maudlin sympathy, aversion to imprisoning first offenders, personal doubts as to the efficacy of the policy implicit in the amending legislation, and like considerations were equally obviously not intended to qualify as substantial and compelling circumstances.”It is the cumulative effect of the circumstances of a case – and each of those circumstances need not be “special” or “exceptional” in itself – that would warrant a court to deviate from the sentences prescribed in the law, she pointed out.In Limbare’s case, she stated, circumstances that should have received serious consideration before he was sentenced include evidence that a small degree of force was used during the rape, that there were no injuries caused except pain to the complainant’s stomach or arm, and that Limbare had spent close to a year in custody before his case was finalised and he was sentenced.The Walvis Bay Regional Court will have to take these factors, as well as others that may be placed before it, into account when Limbare has to be sentenced afresh.Judge Van Niekerk ordered that Limbare should remain in custody until he has been re-sentenced.