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

STAFF REPORTER

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.

Breadwinner

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.

Questions

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.

Similar News

 

Anxiety, hope surround landmark same-sex marriage judgment

1 day - 18 January 2022 | Justice

JANA-MARI SMITHWINDHOEKThe long legal battle against the government by two Namibians and their same-sex, foreign-born spouses is heading towards a watershed judgment in the Windhoek...

Kora judgment delayed again

1 day - 18 January 2022 | Justice

ELLANIE SMITWINDHOEKJudgment in the legal battle involving the cancelled Kora Music Awards event has been postponed again.Judge Herman Oosthuizen, who was supposed to deliver the...

Murder-accused pastors, wives secure legal aid

2 days ago - 17 January 2022 | Justice

Kenya Kambowe KAHENGETwo self-proclaimed pastors and their customary wives from the Kavango West Region, who stand accused of three murders and...

Amadhila duped me, pensioner claims

5 days ago - 14 January 2022 | Justice

OGONE TLHAGE WINDHOEKA 69-year-old pensioner, Tobias Mundjele, claims he was cheated out of a closed corporation he started with northern-based businessman Tobias...

Boulter murder case halted

1 week ago - 12 January 2022 | Justice

ENZO AMUELEKAMANJABMurder-accused Harvey Boulter, who was last year released on N$500 000 bail, made a brief court appearance in the Kamanjab Magistrate’s Court yesterday.This while...

Job changes course on Red Line

1 week ago - 10 January 2022 | Justice

ELLANIE SMITWINDHOEKAffirmative Repositioning (AR) activist Job Amupanda has amended the particulars of claim in his court case seeking the removal of the controversial northern veterinary...

Gustavo bail: CRAN weighs in on GPS

1 week ago - 06 January 2022 | Justice

Comedy of errors over proposed tracking device CRAN, ACC and the PG have all indicated that they have no legal means to implement Judge Herman...

State lodges appeal against Gustavo bail

2 weeks ago - 04 January 2022 | Justice

JEMIMA BEUKESWINDHOEKProsecutor-General (PG) Martha Imalwa has set the ball rolling to fight the release of Fishrot accused Ricardo Gustavo from jail in December.Judge Herman Oosthuizen...

Fishrot: The legal dream team

3 weeks ago - 23 December 2021 | Justice

JEMIMA BEUKES WINDHOEKWhen Gilroy Kasper, Trevor Brockerhoff and Florian Beukes were sharing lecture halls...

'Strange’ Gustavo judgement criticised

3 weeks ago - 23 December 2021 | Justice

JEMIMA BEUKES WINDHOEKThe comprehensive bail but ‘strange’ judgement of one of the Fishrot...

Latest News

Buying, selling a business as...

19 hours ago | Business

Audrey van Antwerpen – Many entrepreneurs at one stage or another consider buying or selling a business, especially in these challenging economic times.Where a business...

China cuts rates on policy...

19 hours ago | Economics

China’s central bank on Monday unexpectedly cut the borrowing costs of its medium-term loans for the first time since April 2020, while some market analysts...

Uganda hit by fuel shortage...

19 hours ago | Economics

Ugandans were struggling Monday with a fuel shortage that has sent prices skyrocketing, as hundreds of trucks remain stuck in huge tailbacks at the border...

EDITORIAL: Watch South Africa closely...

19 hours ago | Opinion

South Africa is at a tipping point, something Namibia, as a tiny neighbour, must watch closely. Systemic political corruption in which private interests have significantly...

Swapo sacrifices social cohesion

19 hours ago | Economics

Jo-Maré Duddy – “After three decades in political power, Swapo has wasted social capital and sacrificed the asset of social cohesion for short-term individual gains...

Covid-scarred economy riddled by risks

19 hours ago | Economics

Jo-Maré Duddy – Namibians entered 2022 tossing and turning about bleak prospects for jobs and a decent living: As the country enters its third year...

Global jobs recovery to take...

19 hours ago | Economics

EMMA FARGEThe global job market will take longer to recover than previously thought, with unemployment set to remain above pre-Covid-19 levels until at least 2023...

SPYL gives Sheya the cold...

19 hours ago | Politics

KENYA KAMBOWE RUNDUSwapo Party Youth League (SPYL) secretary Ephraim Nekongo says comments by former...

COMPANY NEWS IN BRIEF

19 hours ago | Business

Unilever faces a dilemmaUnilever faces a dilemma after its 50-billion-pound (US$68 billion) offer for GlaxoSmithKline's consumer healthcare assets was rejected.The bid for GSK's assets, including...

Load More