Judges increase Hardap man’s prison term on rape charge

A Hardap region resident has reason to regret his appeal against the jail term he received on being convicted of rape, after the appeal resulted in an increase of his sentence from 13 years’ imprisonment to 20 years.

Dosantos Gomaseb’s sentence was increased in an appeal judgement delivered in the Windhoek High Court on Friday.

In the court’s decision, judge Naomi Shivute found that the Mariental Regional Court magistrate who sentenced Gomaseb in February 2022, after convicting him of rape, misdirected himself by finding there were substantial and compelling circumstances warranting a prison term shorter than the mandatory minimum sentence prescribed by the Combating of Rape Act.

Shivute, with judge Herman January agreeing with her judgement, also found that the magistrate committed an irregularity by suspending part of Gomaseb’s sentence.

Gomaseb (31) was found guilty of raping a woman near Gochas in the Hardap region in March 2017, when he was 23 years old.

He was also prosecuted on another count of rape, dating from March 2017 as well, but was found not guilty on that charge.

Gomaseb was sentenced to 18 years’ imprisonment, of which five years were suspended for a period of five years on condition that he is not convicted of rape committed during the period of suspension.

He had also been convicted of rape previously. In the previous case, he was sentenced to an effective prison term of three years in September 2011, also after standing trial in the Mariental Regional Court.

After being convicted and sentenced in February 2022, Gomaseb filed an initial notice of an appeal in January 2024, which was 22 months late in terms of the rules of the magistrate courts.

His explanation for the delay in filing his appeal was that he had been in shock and not in the right state of mind to make a decision about an appeal after he had been sentenced, Shivute noted in her judgement.

She remarked that there was no medical evidence to support the claim that Gomaseb had been suffering from shock after he was sentenced, and added that his excuse that he was a layperson who is ignorant of the law was not credible, as he was represented by a lawyer during his trial.

In terms of the Combating of Rape Act, Gomaseb faced a minimum prescribed sentence of 20 years’ imprisonment because he had a previous conviction on a count of rape, Shivute said.

The factors considered by the magistrate before he decided to sentence Gomaseb to a prison term lower than that prescribed by the law do not amount to substantial and compelling circumstances, which have to be present for a court to deviate from a minimum sentence stipulated in the Combating of Rape Act, Shivute said.

She also commented that the gravity of the crime committed by Gomaseb is that his victim’s rights to dignity and privacy were seriously violated.

“There can be nothing more degrading and humiliating than being a victim of rape,” Shivute said.

She continued: “The psychological impact on the victim is often long-lasting. The sentencing court appears to have made light of a very serious and prevalent offence in this country. The interests of the victim appear not to have been given due regard.”

Shivute and January set aside the sentence imposed by the magistrate and replaced it with a sentence of 20 years’ imprisonment, which is backdated to February 2022.

Defence lawyer Laura Pack represented Gomaseb in the appeal.

Deputy prosecutor general Filistas Shikerete-Vendura represented the state.

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