Judge shows mercy to child assault convict

A charcoal worker from northern Namibia was sentenced to an effective three years imprisonment for assault with intent to do grievous bodily harm in the Oshakati High Court.

Moses Mutuka (33), born and raised in Mangetti in the Tsumkwe constituency was convicted by Oshakati High Court Acting Judge Danie Small on 23 February for the assault of a less than two-year-old child. It was found by the court that he assaulted the girl child on various occasions by beating her with his fists and an open hand and by dragging her on the ground and beating her against a corrugated iron sheet. The child lost some of her teeth during the various assaults.

According to the judge, the doctor concluded that the victim’s body had lesions of different production dates, indicating that she had received trauma at other times and on different dates and that her injuries could have resulted from a fall.

The judge stated that a court must not be blinded by the expectations of society in sentencing a convicted person, but must be guided by the established principles of sentencing. He said that depending on the circumstances of a case, it should be as far as possible be fair to the community, but also blended with a measure of mercy.

“A sentencing court should never assume a vengeful attitude,” the judge said and continued: A court searches for an appropriate sentence in each case and sentencing, at the best of times, is an imprecise and imperfect procedure and there will always be a substantial range of appropriate sentences. While there is a persistent demand for more severe sentences to be imposed on all offenders for all crimes, the foundation for this belief is that no punishment can be too harsh and the more severe it is, the better it will protect society, this is not necessarily correct for all crimes,” the judge asserted. He said he considered the two years Mutuka spent in custody awaiting the finalisation of his trial. While it is not a mitigating factor in determining an appropriate sentence a court must afford sufficient weight to such time spent in pre-trial custody and consider it together with other relevant factors. Furthermore, the judge said, the Combating of Domestic Violence Act does not prescribe increased or mandatory sentences for common law crimes committed in a domestic relationship.

“The Act, for the most part, clearly creates avenues for the victims of domestic violence, who live in a wide range of domestic relationships, to seek protection against such abuse when it occurs or creates avenues to prevent the commission of such offences with the assistance of the courts.

However, the existence of such a relationship between a perpetrator and victim is not per se an aggravating factor, but the conduct of the perpetrator who abuses their power in such a circle to commit such crimes against victims who depend on them for basic human needs like food, shelter, clothing, safety, love and care.

In the end, the judge said, he does not consider a fine an appropriate sentence in the circumstances, but will give a partly suspended sentence which will have the result of the suspended part hanging over him. He sentenced Mutuka to five years with two years suspended on the condition that he is not convicted of the same offence during the period of suspension.