Teacher guilty of raping learner (13) walks free
A teacher convicted of raping a 13-year-old student received a suspended sentence because of “compelling and exceptional reasons”.
29 November 2021 | Justice
The State is appealing a magistrate’s decision last week to keep a teacher convicted of raping and fathering a child with his 13-year-old student out of jail.
On Friday, regional court magistrate Leopold Hangalo imposed a fully suspended 10-year sentence after finding Itana Sakaria (40) guilty of raping a 13-year-old learner in 2014, when he was 34.
The teacher has been out on bail and reportedly continues to work at the same school, Ondundu Primary School in the Tsumeb district, where the rape took place.
During the trial, the court heard that Sakaria pays monthly maintenance for the five-year-old boy he fathered with the girl, in addition to seven other children he cares for.
Sakaria pleaded not guilty to rape, but testified that he had consensual sex with the girl on one occasion in 2014.
Sakaria was charged with raping the girl on multiple occasions between January and August 2014.
In pre-sentencing arguments, the State asked the court to impose an 18-year sentence, three years more than the minimum prescribed 15-year sentence for perpetrators in positions of trust who raped a minor.
The defence asked the court to impose a seven-year prison sentence, with four years suspended, so that Sakaria would effectively only serve three years.
However, in his judgment on Friday, Hangalo said the court had identified compelling and exceptional reasons to keep Sakaria out of jail.
The magistrate argued that in his interpretation of the law, the sentence for raping a minor can be fully suspended under certain conditions, which he felt was relevant to Sakaria.
He said jailing Sakaria would punish his wife and eight children, including the complainant’s child, as he is their sole breadwinner.
He said jailing Sakaria would leave his dependents “debilitated by an unjust sentence.”
Hangalo said in his view the 13-year-old complainant "was a willing partner” and she did not “suffer any physical injuries.”
Hangalo said the convicted rapist did not use violence, threats or a weapon in the commission of the offence.
Hangalo also said the girl and her parents testified that they accepted Sakaria’s apology, and had forgiven him.
He quoted the complainant’s testimony, in which she said she had failed grade 10 and is unemployed.
“She does not want you to be sent to prison, because nobody else will be able to maintain the child. Although she felt bad about what happened, she has since forgiven you,” Hangalo told Sakaria during sentencing.
In addition, the girl’s parents testified that they are also unemployed and survive by selling vegetables.
“They said they have no means to maintain your child if you are sent to prison. They have forgiven you after you apologised.”
Moreover, he said health issues plaguing Sakaria following a car crash factored into his decision.
Sakaria’s defence argued that he is a “family man and a breadwinner” and by jailing him he would lose his job.
Moreover, the remorse he showed for the crime, and the fact that he is a first offender, counted in his favour, Hangalo stated.
The State had pointed out that a child of 13 cannot legally give consent and that consent is not a defence.
On Friday, Dianne Hubbard of the Legal Assistance Centre (LAC) said while there is potentially legal room to deviate from a prescribed minimum sentence for rape in the case of substantial and compelling circumstances, the sentence is still worrying.
“A wholly suspended sentence may send out a wrong signal to teachers who prey on their young students. There are options such as periodical imprisonment (such as weekend incarceration) that allow convicted offenders to continue to earn money for the maintenance of their dependents.”
She added that the court’s findings that a 13-year-old had consensual sex with a teacher is “legally not relevant, because she is too young to give legally meaningful consent.”
Hubbard and Ingrid Husselmann of the ombudsman’s office also pointed out that the Combating of Rape Act explicitly prohibits courts from suspending minimum sentences, and that they can only suspend portions of the sentence that are in excess of the prescribed minimum.
Husselmann added that the school can take disciplinary action against the convicted rapist.
In March this year, a community protest was staged in Oshakati to demand the removal of Hangalo, who was tasked to impose a sentence against Sindano Hango who was found guilty of rape, after Hangalo had acquitted him earlier.
Upon review of an appeal brought by the State, the Oshakati High Court found Hango guilty of raping his cousin and referred the matter back to Hangalo for conviction.