WINDHOEK - A Swakopmund man whose indecent assault conviction was overturned with a conviction of attempted rape in the Supreme Court was slapped with a sentence more than twice the original sentence.
Stefanus Hendrick Ruba Gariseb was convicted by High Court Judge Naomi Shivute in May 2015 on indecent assault and acquitted on two counts of rape of a nine year old year on April fool’s Day in 2011 in Mondesa, Swakopmund.
The judge sentenced him to seven years imprisonment. The State appealed the judgement to the Supreme Court and it found that Gariseb is guilty of attempted rape and ordered that he should be sentenced afresh on the attempted rape conviction.
Judge Shivute delivered the fresh sentence on Gariseb last Thursday and increased the sentence to 20 years imprisonment.
According to the judge, the convict is a subsenquent offender who was previously convicted of rape and it seems he has a propensity for committing sexual offences.
She further said by going to his victims’ school and asking for permission under the false pretext that he was taking her to the doctor while the intention was to rape her, he committed a premeditated crime.
The accused is an uncle to the complainant and instead of protecting the minor child, he opted to sexually abuse her, Judge Shivute remarked and added; “The accused abused the generosity of the complainant’s family who took him in by repaying them through the sexual molestation of their daughter.”
What remains to be determined, Judge Shivute said, is whether the fact that the accused is currently 50 years old and has spent more than eight years in jail either as a trial awaiting prisoner or serving part of his sentence is enough to deviate from the mandatory sentence of 45 years.
According to her, the accused is a repeat offender who has been incarcerated for four years before the finalisation of his case and another four years after his conviction of indecent assault.
She further said that while a lengthy time of incarceration on its own does not amount to substantial and compelling circumstances, the circumstances of this case are so unique that the court regards the lengthy period of incarceration prior to conviction and after sentence to amount to substantial and compelling circumstances.
According to the judge, she feels a great sense of uneasiness about the imposition of a prescribed mandatory sentence of 45 years and is convinced beyond doubt that the minimum mandatory sentence would result in injustice being done.
“The sentence is disproportionate to the offence committed and it ignores the interest of the offender and the legitimate needs of society,“ the judge said and continued: “The facts of the case as well as the disproportionate nature of the prescribed sentence amounts to substantial and compelling circumstances, hence it is justified for the court to deviate from imposing the mandatory minimum prescribed sentence that would result in a shockingly inappropriate sentence being imposed and injustice being done.”
Gariseb was represented by Illeni Gebhardt and the State by Advocate Innocencia Nyoni.