Triple child rape appeal dismissed

TWO High Court Judges have put their stamp of approval on the 25-year prison sentence and triple conviction for the rape of three young girls that an Otjiwarongo resident received some 19 months ago.

Judge President Peter Shivute and Judge Sylvester Mainga dismissed convicted child rapist Amon Thimoteus’s appeal in a judgement handed down in the High Court in Windhoek on Thursday. Thimoteus, then 35 years old, was found guilty in the Otjiwarongo Regional Court on three counts of rape on November 13 2002.Magistrate Christie Liebenberg convicted him under the Combating of Rape Act on charges that he had committed a sexual act with three girls – two aged 11, one nine years old – at Otjiwarongo during August 2001.On each count the Magistrate sentenced Thimoteus to the mandatory prison term of 15 years prescribed by the Act in cases where “substantial and compelling circumstances” to warrant a lesser sentence were not present.He also ordered that 10 years of each of the first two sentences should run concurrently with the sentence on the third count.Thimoteus had denied the charges, telling the court that at the time he did not even live at the house where the incidents were alleged to have been committed.He did not venture an explanation on why the three children would have chosen to falsely implicate him; nor did he call any witnesses to back up his defence, Judge President Shivute recounted during last week’s appeal judgement.According to the evidence heard by Magistrate Liebenberg, the three girls, together with two other boys and another girl, were watching television at the house where Thimoteus stayed.At some stage Thimoteus told the two boys to leave, since their mother had supposedly called for them.Both boys and the fourth girl left.Thimoteus then called two of the girls into his room, where he bluntly told them that he wanted to have sexual intercourse with them.They told the third girl about his “eerie message” – in the Judge President’s words – and once she had been told that he had also offered money for the favour, she agreed.Thimoteus then called the girls into his room one by one, and there committed sexual acts with each of them.Each of the girls described in graphic detail what Thimoteus had done with each of them, the Judge President noted.Afterwards, he gave each of them N$5 and instructed them not to talk about what had happened, they claimed.They did not report the incidents until one of them, by chance, mentioned it to a child who in turn informed an adult.The Judge President commented that Magistrate Liebenberg’s analysis of the evidence and his conclusions and reasons for those conclusions could not be faulted.Thimoteus was implicated by credible witnesses; in a “well-reasoned judgement” the Magistrate had properly warned himself of the dangers inherent in relying on the evidence of young children and found that the evidence had been reliable, the Judge President found.On the sentence the Magistrate had correctly found that there were no circumstances in Thimoteus’s case that could be said to be substantial and compelling and which could justify the imposition of a sentence other than the prescribed minimum, it was found.Thimoteus’s appeal had been argued, at the request of the court, by Johan van Vuuren.Henrico von Wielligh opposed the appeal on behalf of the State.Thimoteus, then 35 years old, was found guilty in the Otjiwarongo Regional Court on three counts of rape on November 13 2002.Magistrate Christie Liebenberg convicted him under the Combating of Rape Act on charges that he had committed a sexual act with three girls – two aged 11, one nine years old – at Otjiwarongo during August 2001.On each count the Magistrate sentenced Thimoteus to the mandatory prison term of 15 years prescribed by the Act in cases where “substantial and compelling circumstances” to warrant a lesser sentence were not present.He also ordered that 10 years of each of the first two sentences should run concurrently with the sentence on the third count.Thimoteus had denied the charges, telling the court that at the time he did not even live at the house where the incidents were alleged to have been committed.He did not venture an explanation on why the three children would have chosen to falsely implicate him; nor did he call any witnesses to back up his defence, Judge President Shivute recounted during last week’s appeal judgement.According to the evidence heard by Magistrate Liebenberg, the three girls, together with two other boys and another girl, were watching television at the house where Thimoteus stayed.At some stage Thimoteus told the two boys to leave, since their mother had supposedly called for them.Both boys and the fourth girl left.Thimoteus then called two of the girls into his room, where he bluntly told them that he wanted to have sexual intercourse with them.They told the third girl about his “eerie message” – in the Judge President’s words – and once she had been told that he had also offered money for the favour, she agreed.Thimoteus then called the girls into his room one by one, and there committed sexual acts with each of them.Each of the girls described in graphic detail what Thimoteus had done with each of them, the Judge President noted.Afterwards, he gave each of them N$5 and instructed them not to talk about what had happened, they claimed.They did not report the incidents until one of them, by chance, mentioned it to a child who in turn informed an adult.The Judge President commented that Magistrate Liebenberg’s analysis of the evidence and his conclusions and reasons for those conclusions could not be faulted.Thimoteus was implicated by credible witnesses; in a “well-reasoned judgement” the Magistrate had properly warned himself of the dangers inherent in relying on the evidence of young children and found that the evidence had been reliable, the Judge President found.On the sentence the Magistrate had correctly found that there were no circumstances in Thimoteus’s case that could be said to be substantial and compelling and which could justify the imposition of a sentence other than the prescribed minimum, it was found.Thimoteus’s appeal had been argued, at the request of the court, by Johan van Vuuren.Henrico von Wielligh opposed the appeal on behalf of the State.