CASE NO. CC 32/2008
IN THE HIGH COURT OF NAMIBIA
In the matter between:
THE STATE
and
STANLEY GANEB
CORAM:
MAINGA, J.
Heard on:
2009/08/06
Delivered on:
2009/08/07
SENTENCE:
MAINGA, J: [1]
Accused was convicted yesterday (6 August 2009) on counts of
Murder with direct intent, rape in contravention of the Combating of Rape Act of 2000 and
Abduction.
[2]
It is now the task of this court to impose a sentence which it thinks is appropriate
under the circumstances. In discharging that lonely and onerous task I must proceed
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from the paradigm which is commonly known as the triad of factors, consisting of
the nature and circumstances of the offences, the characteristics of the offender and his
circumstances and the impact of the crime on the community, its welfare and concern.
[3]
Accused is 24 years old, he is single, but has two children, a boy and girl of 2 and
3 years old. They are living with accused’s aunt on a farm. The two children have
different mothers who accused appears not to know their whereabouts except that they
are believed to be residing in the Gobabis district. Accused’s mother and father passed
away in 2005 and 2006 respectively. Accused has two siblings, a brother who is 18 years
old and a sister aged 14 years old. The brother is not employed and the sister is still in
school. Accused had had school until Grade 8. He could not further his education due to
financial constraints. Accused was last employed in January 2007 at a Lodge in the
Gobabis district. His salary was N$500,00 from which he contributed to maintain his
children. Accused feels bad about the crimes he committed. He was overwhelmed by
anger when he came learn to that the deceased who he still considered to be his
girlfriend was going out with another man, the man who had punched him on the mouth
while he was talking to the deceased outside the shebeen and the deceased after the
rape had hit him with a panty in the face which is a traditional taboo. I will also have to
consider the fact that accused has been in custody for a period of about 2 years and 2
months.
[4]
Turning to the crimes accused committed, I cannot overemphasize the
seriousness of the crimes. Murder in my opinion is the crime, for the reason that Mina
Goeieman is no more, her life terminated at the age of 16 years. I have more than once
said, nothing is as precious as life. Rape on the other hand, when committed leaves the
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victim
humiliated,
dirty
and
helpless. Accused abducted the deceased, raped
and murdered her by strangling and hitting her, several times with a half brick. When
accused drove the deceased away, she was screaming.
[5]
In cases of this nature society demands that its interest be served by the
imposition of deterrent sentences. I take judicial notice that our society for the reason of
the nature of the crimes committed by the accused have called for the return of capital
punishment, which is outlawed by our constitution since independence. The cry of our
society in offences of this nature requires some serious consideration. Our society has
become increasingly vocal in expressing their anger, outrage and disapproval at crimes of
this nature committed by the accused. They have organized demonstrations, protests
and marches and petitions to the relevant authorities calling for stiffer sentences. It is not
wrong that natural indignation of interested persons of the community at large receive
some recognition in the sentences that the courts impose and it is not irrelevant to bear in
mind that if sentences for serious crimes are too lenient the administration of justice may
fall into disrepute and injured persons may incline to take the law into their own hands (R
v Karg 1961(1) SA 231 AD at 236).
[6]
The crimes of the nature perpetrated by the accused especially on a minor child of
16 years arouse revulsiveness from our community.
From accused’s own version
deceased was killed because either she rejected the accused and took another man or
the man who was going out with her at the time assaulted the accused or deceased hit
the accused in the face with her panty which is a traditional taboo. When accused was
asked why he raped the deceased, he changed his version of having admitted abducting
the deceased with the purpose to having sexual intercourse with her and his admission of
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raping her to say he wouldn’t say he raped her, for under the circumstances there is no
reason why he raped her except for showing her that whether she rejected him he would
use his masculinity to have his own way. Accused even went to an extent of saying when
he left the scene deceased was still alive. Contrary to medical evidence that deceased
was strangled, accused disputed that he strangled the deceased.
[7]
The violent crimes which you have been convicted have become a common
feature in our society.
Women and young female children are abducted, raped,
indecently assaulted and murdered. The court rolls in this court and in the Regional
Courts is testimony of the rising incidence of these crimes. As Moosa J correctly said in
S v Olivier 2007(2) SACR 596 CPD at 610b, courts need to send a clear message that it
will act firmly against the offenders of such heinous crimes lest the members of the
community take the law into their own hands. Something the court cannot tolerate and
allow, as that would lead to anarchy and chaos in our society.
[8]
Mr. Akweeda, on your behalf, submitted that you have shown remorse in your
confession of the crimes, your pleas of guilty and cooperation with the police.
It is
possible that you pleaded guilty to the offences as by your own version your own
footprints were followed from the scene of the crimes to where you were found sleeping
and the state’s case was watertight against you. I am not convinced that you have shown
any contrition. Accused is a person who has no respect for the laws of this country. He
was released from custody on another offence on the afternoon of 6 June 2007 and
hardly a day thereafter he committed these heinous crimes.
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[9]
Mr. Akweenda did not find it necessary to address this court on whether there was
any substantial and compelling circumstances on the count of Rape. I reckon that he did
not find any.
I do not find any, to warrant a departure from the minimum sentence
prescribed by the Legislature for that crime. Given the circumstances, nothing prohibits
this court from imposing a sentence exceeding the prescribed minimum. However, given
the fact that you committed the crimes at the age of 22 years and the fact that you have
been in custody on these offences for 2 years and 2 months, I am inclined to impose just
the minimum prescribed.
[10]
You abducted the deceased with the purpose of having sexual intercourse with her
and did have sexual intercourse with her against her will under coercive circumstances
and thereafter killed her. Although the abduction triggered the commission of serious
offences, I am of the view that a sentence of 8 years would be appropriate for that
offence.
[11]
In the respect of count 2 (Rape) the court did not find any substantial and
compelling circumstances, but given the period you have spent in custody awaiting trial, I
will keep the sentence at the prescribed minimum of 15 years.
[12]
years.
In respect of count 1, Murder I have no alternative but to impose a sentence of 30
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[13]
The offences were perpetrated at the same time and at the same place on the
deceased by the same accused. I take cognizance of the cumulative effect they would
have. In the circumstances I will order that the 8 years run concurrently with the sentence
in count 2.
[14]
Accordingly the following sentences are imposed:
(a)
On count 1 (Murder) – you are sentenced to thirty (30) years imprisonment;
(b)
On count 2 (Rape) – you are sentence to fifteen (15) years imprisonment.
(c)
On count 3 (Abduction) – you are sentenced to eight (8) years
imprisonment, which sentence is ordered to run concurrently with the
sentence on count 2.
____________________________
MAINGA, J
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For the State
:
Mr. R Shileka
Instructed by:
:
OFFICE OF THE PROSECUTOR GENERAL
For the Defence
:
Mr. Akweenda
Instructed by:
:
DIRECTORATE OF LEGAL AID