State appeals suspended rape sentence

JANA-MARI SMITH



WINDHOEK

The Oshakati prosecutor general’s office is fighting to appeal a judgement in which a man convicted of rape and severe assault four years ago was handed a fully suspended sentence with no time behind bars.

In November 2016, more than four years after the rape took place in October 2012, Magistrate Alvin Simpson sentenced Kutareua Tjirambi to eight years imprisonment, fully suspended, after he was found guilty of one count of rape and two counts of assault.

Simpson imposed a two-year sentence or N$2 000 fine for the two counts of assault with intent to do grievous bodily harm.

In response, the State filed a leave to appeal in 2019. Since then, the matter has dragged on, in part because Tjirambi has been unable to secure legal representation and has failed to appear at court ordered dates.

He was charged and found guilty of violently attacking and raping a woman on 13 October 2012 near a cattle post in Opuwo district, when he was 17.

The government appeal underlined that the victim was first assaulted with a stick and beaten before she was dragged into a riverbed and raped.

A witness testified during the trial that he saw her soon after the attack, and that she was covered in blood, “totally dirty, even her clothes were very dirty. [She had] marks on her forehead, blood in her mouth and her eyes were swollen”.

Heads of argument, filed ahead of the leave to appeal hearing at the Oshakati High Court, accused the magistrate of having misdirected himself and erred in law by overemphasising the mitigating circumstances - primarily Tjirambi’s age - during sentencing, and ignoring the “heinous violence [that] was perpetrated on the complainant”.

Mystery

In his reasons for the judgement, Simpson wrote that the court took into consideration “the age of the accused during the commission of the offences”.

Further, that “as the prescribed minimum sentence was not applicable in this instance, the court imposed a total suspended sentence on the rape charge”.

State advocate Ruben Shileka, however, argued that the leave to appeal was prompted because the State was “left to guess on what authorities the magistrate relied in meting out a wholly suspended sentence” for eight years’ imprisonment.

He said the reasoning “is still mysterious”.

The non-custodial punishment “undermined the seriousness of rape”, the State noted.

Not the first time

Shileka underlined that the victim was “violently savaged” and, moreover, that before the day in question, the victim had already once escaped an assault at the hands of Tjirambi.

He did not testify in his own mitigation, and “did not show or express any remorse for his wrongdoing”, the advocate noted.

Shileka underlined that the court’s emphasis on Tjirambi’s age was a “fatal misdirection”.

Tjirambi had pleaded not guilty to all charges against him, but later admitted to the assault, though he continued denying the rape.

A social worker report, compiled on the court’s request, noted that Tjirambi assaulted the woman after she falsely accused him of rape. The report further noted that he regretted the assault.

In March 2020, Tjirambi’s application for legal aid was declined, with the director of legal aid stating that the case had no merits.