State loses appeal in rape case

WINDHOEK; The State was on Tuesday dealt a heavy blow when the High Court dismissed its application for leave to appeal a three-year sentence imposed in a rape case.

Windhoek resident Laizer Kuhlewind, 23, was sent to jail for an effective three years on 14 August 2012 by High Court Judge-President Petrus Damaseb for rape committed in June 2008.

Shortly after Kuhlewind was sent to jail, the prosecution led by State Advocate Erick Moyo approached the court with an application for leave to appeal against Kuhlewind’s punishment, claiming that the three-year sentence was too lenient compared to sentences imposed in other related cases.

The State’s application was dismissed in a ruling handed down by High Court Judge-President Damaseb in court on Tuesday morning.

“After having perused all the evidence presented before court, I came to the conclusion that the State’s application has no merits. And in the result, this application is dismissed because the State will not be able to secure a different sentence in another court,” Damaseb said in his judgement.

In the failed appeal bid, the prosecution wanted to appeal against both the conviction and the prison term.

On 14 August 2012, Kuhlewind was sentenced to seven years’ imprisonment, of which four years were suspended for a period of five years on condition that he is not convicted of any charges related to rape during the period of suspension.

Kuhlewind, who had spent 18 months in police custody at the Windhoek Central Prison’s holding cells awaiting the finalisation of his case, was tried and punished in terms of the provisions of the Combating of Rape Act of 2000.

He was initially arrested in June 2008, but was out on bail until the matter was taken to the High Court.

“The incidents of sexual violence committed against women and girls are now on the increase in the country. These are very serious offences, because the victims suffer psychological trauma for the rest of their lives. In this case, the offence was committed against an innocent and defenceless four-year-old girl,” Damaseb said while handing down the sentence at the time.

Kuhlewind’s conviction and sentencing followed a finding by the Judge-President at the time that Kuhlewind was not so intoxicated from crack and marijuana that he did not know what he was doing when he put one of his fingers into the private parts of the victim, causing some bleeding in the process.

The incident took place at a house in the Hakahana area of Katutura on 18 June 2008.

In terms of the Combating of Rape Act, Act No. 08 of 2000, the deed which the girl claimed Kuhlewind had committed is included in the definition of a sexual act, and is regarded as an offence of rape when it is committed intentionally and under coercive circumstances.

During his trial, Kuhlewind told the court that he could not recall whether the event which the girl had testified about had actually taken place or not.

He claimed that he was “out of his senses” after he had spent the day smoking marijuana and crack cocaine with friends, and that it was the first day he had used the drugs.

Kuhlewind is said to have had a very unhappy upbringing as he grew up in the care of foster parents at a farm in the Mariental district in the Hardap Region after his biological parents abandoned him at an early age.

He attended school up to Grade 10 before dropping out, making a living by doing odd jobs around Windhoek.

He had showed strong remorse for what he did to the girl, and pleaded for mercy from the court during trial.

Windhoek-based defence lawyer Boris Isaacks had represented Kuhlewind during the trial, acting on the instructions of the Justice Ministry’s Directorate of Legal Aid.

Isaacks also appeared for Kuhlewind during the State’s failed appeal bid, while Moyo appeared for the prosecution.