Stiffer sentence for abuser
The case had put the spotlight on the legal definitions of what type of sexual acts amount to rape, attempted rape and indecent assault under Namibian law.
A seven-year sentence for the indecent assault of a nine-year-old girl by her uncle was increased to 20 years last week, following a Supreme Court ruling earlier this year that found the man guilty of attempted rape instead.
On Thursday, Stefanus Hendrik Ruba Gariseb (50) heard that instead of serving the seven-year prison term handed down four years ago, he will spend 13 more years behind bars for the attempted rape of niece in 2011 in Swakopmund.
The serial sexual abuser's case made headlines in 2015 when High Court judge Naomi Shivute acquitted Gariseb on two counts of rape and instead sentenced him on a count of indecent assault. The judge said her decision to convict Gariseb of the lesser offence was based on a lack of sufficient evidence of rape in terms of the Combatting of Rape Act of 2000.
He had been accused of placing his private parts between the girl's buttocks. Shivute's ruling put the spotlight on the legal definitions of what type of sexual acts amount to rape, attempted rape and indecent assault under Namibian law.
Although the judge found Gariseb's actions were wrong, she said he had not committed a sexual act that included penetration, even to the slightest degree. Gariseb's sexual abuse of his young niece took place shortly after he had been released on parole after serving four years of a six-year prison sentence for a prior conviction of rape. He was 42 years old at the time.
He was caught red-handed by the victim's guardian on 1 April 2011, though the girl testified in court that he had sexually abused her on several occasions. He had picked her up from school under the pretence that he was taking her to the doctor.
The State took the matter to the Supreme Court, arguing there had been sufficient evidence to warrant a rape conviction.
In April, Supreme Court judges Sylvester Mainga, Dave Smuts and Fred Chomba concluded that the conviction for indecent assault was not a competent verdict, but agreed with Judge Shivute that rape had not been proven.
They set aside the verdict of indecent assault and ordered the High Court to sentence Gariseb for attempted rape.
Last Thursday the case was back before Shivute for sentencing Gariseb on the new conviction.
During her judgment she underlined that Gariseb has “a propensity of committing sexual offences” and that the sexual abuse of his young niece was a premeditated act, carefully orchestrated by him.
The judge said Gariseb had also abused the generosity of the victim's family “who took him in, by repaying them through the sexual molestation of their daughter”.
She underlined that Gariseb had picked up the girl under a false pretext with the “intention to rape her”.
“Instead of protecting the minor child, he opted to sexually abuse her,” she said.
The judge listed Gariseb's lengthy criminal and sexual violence history, stating he was convicted of assault and theft in the 1990s and then on a charge of rape.
While the State had urged the court to impose a mandatory 45-year prison term for which Gariseb qualified under his new conviction, Shivute said the court had reason to deviate from the prescribed minimum term.
“The circumstances of this case are so unique that this court regards the lengthy period of incarceration prior to conviction and after sentence to amount to substantial and compelling circumstances.”
Unique
By November this year, Gariseb had already been in prison for a total of eight years and four months, following his arrest in 2011.
Four years and four months had been served as part of his now dismissed seven-year prison sentence, and four years were spent in custody during the trial.
Shivute thus said the court was justified in imposing a shorter sentence of 20 years instead, more so because it may not order the sentence to be antedated to the date he was first sentenced.
JANA-MARI SMITH
On Thursday, Stefanus Hendrik Ruba Gariseb (50) heard that instead of serving the seven-year prison term handed down four years ago, he will spend 13 more years behind bars for the attempted rape of niece in 2011 in Swakopmund.
The serial sexual abuser's case made headlines in 2015 when High Court judge Naomi Shivute acquitted Gariseb on two counts of rape and instead sentenced him on a count of indecent assault. The judge said her decision to convict Gariseb of the lesser offence was based on a lack of sufficient evidence of rape in terms of the Combatting of Rape Act of 2000.
He had been accused of placing his private parts between the girl's buttocks. Shivute's ruling put the spotlight on the legal definitions of what type of sexual acts amount to rape, attempted rape and indecent assault under Namibian law.
Although the judge found Gariseb's actions were wrong, she said he had not committed a sexual act that included penetration, even to the slightest degree. Gariseb's sexual abuse of his young niece took place shortly after he had been released on parole after serving four years of a six-year prison sentence for a prior conviction of rape. He was 42 years old at the time.
He was caught red-handed by the victim's guardian on 1 April 2011, though the girl testified in court that he had sexually abused her on several occasions. He had picked her up from school under the pretence that he was taking her to the doctor.
The State took the matter to the Supreme Court, arguing there had been sufficient evidence to warrant a rape conviction.
In April, Supreme Court judges Sylvester Mainga, Dave Smuts and Fred Chomba concluded that the conviction for indecent assault was not a competent verdict, but agreed with Judge Shivute that rape had not been proven.
They set aside the verdict of indecent assault and ordered the High Court to sentence Gariseb for attempted rape.
Last Thursday the case was back before Shivute for sentencing Gariseb on the new conviction.
During her judgment she underlined that Gariseb has “a propensity of committing sexual offences” and that the sexual abuse of his young niece was a premeditated act, carefully orchestrated by him.
The judge said Gariseb had also abused the generosity of the victim's family “who took him in, by repaying them through the sexual molestation of their daughter”.
She underlined that Gariseb had picked up the girl under a false pretext with the “intention to rape her”.
“Instead of protecting the minor child, he opted to sexually abuse her,” she said.
The judge listed Gariseb's lengthy criminal and sexual violence history, stating he was convicted of assault and theft in the 1990s and then on a charge of rape.
While the State had urged the court to impose a mandatory 45-year prison term for which Gariseb qualified under his new conviction, Shivute said the court had reason to deviate from the prescribed minimum term.
“The circumstances of this case are so unique that this court regards the lengthy period of incarceration prior to conviction and after sentence to amount to substantial and compelling circumstances.”
Unique
By November this year, Gariseb had already been in prison for a total of eight years and four months, following his arrest in 2011.
Four years and four months had been served as part of his now dismissed seven-year prison sentence, and four years were spent in custody during the trial.
Shivute thus said the court was justified in imposing a shorter sentence of 20 years instead, more so because it may not order the sentence to be antedated to the date he was first sentenced.
JANA-MARI SMITH
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