Appeal denied in Koch case

An application by the State to appeal High Court Judge Petrus Damaseb's decision to acquit convicted child trafficker Bertus Koch on rape charges and to argue for a longer prison sentence was refused yesterday.

In their grounds for leave to appeal, deputy prosecutor-general Innocentia Nyoni Innocentia, who led the case against Koch, said Damaseb's sentence was “shockingly lenient”.

Damaseb in September convicted Koch on charges of child trafficking and committing sexually immoral acts, which he said had been proven beyond reasonable doubt.

However, he acquitted Koch of the rape charges, citing insufficient evidence to prove beyond a reasonable doubt that Koch had committed rape.

Koch was arrested in 2016 and charged with raping and sexually exploiting five girls, aged between 9 and 13 years, in Swakopmund.

He had lured them into his shack with promises of food and money over a period of five months.

The State argued that Damaseb, in imposing the prison sentence, had “erred in law and/or the facts” by paying too much attention to Koch's circumstances, and “paying no regard and/or paying insufficient regard” to the seriousness of the offences, the interests of society and the interests of the children.

They said Damaseb had erred by accepting evidence that Koch had lured the children into his house and sexually exploited them, but “then finding the same children were not credible in their evidence on the rape charges.”

Damaseb dismissed the application for leave to appeal, saying that in his judgment he had emphasised three particular points which guided his final decision.

He said any indication of reasonable doubt as to the accused's guilt entitled him to the benefit of doubt and thus, an acquittal.

He said Namibian law requires a judge adopt a cautionary approach to the evidence of children and it was crucial, in that process, not to “take an armchair approach”.

“I had to look for circumstances and factors in the evidence which excluded the possibility of improper influence on the children and pointed to his guilt beyond reasonable doubt.”

He said the State had proven beyond reasonable doubt that Koch was guilty of human trafficking and immoral practices. But the rape charges “were an entirely different matter”.

Damaseb said there was reasonable doubt that rape had been committed.

“The law required me to acquit in those circumstances.”

Damaseb said he was struck by inconsistencies in the girls' versions, “which remain unexplained by the State, whose duty it was to explain them as I pointed out in my judgment.” In his judgment in September, he said the different versions given by the minors were “most confusing even to the seasoned and hardened judicial mind”.

He described their testimony as “sketchy and so generalised that it would be difficult for an accused even with abundance with resources to offer exculpatory evidence”.

He said based on the contradictory versions put before court it was “most improbable that the rapes could have happened as described”.

He criticised the police for a sloppy investigation, “as no serious attempt was made after the allegations surfaced to try and garner additional evidence that would add greater weight to the complainants' allegations”.

Yesterday Damaseb said he was satisfied that another court would not come to a different conclusion to the one he had reached on the rape charges. Regarding Koch's sentence, he said there were no legal grounds for the suggestion that the individual sentences were too lenient and ought not to have been made concurrent.

On the contrary, he said, the law requires a sentencing court to mitigate the overall harshness of sentences by making them run concurrently in appropriate cases.

Damaseb said while this was a case that called for a term of direct imprisonment, it should be “tempered by mercy”.