Windhoek
What seemed at first to be his lucky break suddenly turned into a nasty surprise for a young man from Eenhana when an appeal court doubled his sentence on a rape conviction.
Tuhafeni Shinyama was left bitterly regretting his decision to appeal a conviction on a charge of malicious damage to property and assault with intent to cause grievous bodily harm, in addition to a rape conviction for the same incident. He argued the convictions were a duplication of the rape charge. According to Shinyama the court should not have convicted him of the two charges as they happened during the same time the rape occurred, thus constituting a duplication of convictions.
Judges of Appeal Thomas Masuku and Acting Judge Gerson Hinda agreed with Shinyama and set aside his conviction and sentence on the two charges but confirmed the conviction on the rape count.
This is where it got interesting.
The judges then turned their attention to the sentence imposed upon Shinyama for the rape conviction and found that it was not appropriate under the circumstances.
According to them, the 10-year sentence the trial court imposed on Shinyama was not in line with the provisions of the Combating of Rape Act, which prescribes a sentence of not less than 15 years unless compelling and substantial circumstances exist.
In this instance, the judges found, compelling and substantial circumstances did exist, but to the detriment of Shinyama.
This compelled them to increase the sentence from 10 years to 20 years.
They said that the complainant, a defenceless old lady, was assaulted brutally in the sanctity of her home and as a result of the attack suffered grievous bodily harm which served to “conduce” the rape.
They said there is uncontroverted evidence that as a result of the seriousness and brutality of the assault, the complainant lost consciousness and had to be hospitalised for a period of 11 days.
Those were the factors the trial court had to take into account in deciding an appropriate sentence, Judge Masuku who wrote the judgement stressed.
He said that crimes against women are on the rise countrywide and the courts must therefore pass sentences that have a retributive effect and “which will send a clear and unequivocal message to society that such behaviour cannot be tolerated or condoned”.
The judge said the offence of rape is a very serious one as it is invasive of the victim’s bodily integrity as well as innately degrading.
Furthermore, he said, it denies the victims their God-given right to say no. “It is even more serious when coupled with grievous bodily harm to the extent described in evidence in this case.”
Shinyama was convicted of raping the woman after she refused to have intercourse with him. He chased the woman when she tried to run away and dragged her back to her house where he violated her, the court was told during trial.
She was found the next morning by neighbours who took her to hospital.