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[2016] ZAWCHC 48
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September v S (A74/16 , BSH 57/2014) [2016] ZAWCHC 48 (28 April 2016)
THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
High Court Case No:
A74/16
Lower Court Case No:
BSH 57/2014
DATE: 28 APRIL 2016
CHARL
SEPTEMBER
.....................................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
Coram: ROGERS J & MAGONA AJ
Heard: 22 APRIL 2016
Delivered: 28 APRIL 2016
JUDGMENT
ROGERS J (MAGONA AJ concurring):
[1] Together with one [AB], the
appellant was charged in the court quo on three counts of assault and
six counts of rape. The alleged
rape victims were X, a 10-year-old
girl, and her cousin Y, a 16-year-old boy. The alleged assault
victims were three other children.
The charges were framed on the
basis that the accused were co-perpetrators of all the offences.
[2] The alleged offences were committed
on 3 June 2014. At that time the appellant was 21 and AB 17. The
accused were arrested the
same day. On 8 April 2015 the appellant
pleaded guilty on one count of vaginally raping X. AB pleaded guilty
on two counts of raping
X (vaginal and anal) and two counts of raping
Y (both anal). The prosecutor accepted the guilty pleas and withdrew
the other counts.
The accused were convicted in accordance with their
pleas.
[3] Probation and correctional
supervision reports were obtained. The State led evidence in
aggravation. The appellant and his mother
gave brief evidence in
mitigation as did AB and a family member. On 13 May 2015 the
appellant was sentenced to life imprisonment.
AB was sentenced to 15
years’ imprisonment for the rapes of X and to 10 years’
imprisonment for the rapes of Y, half
of which was to run
concurrently with the 15 years.
[4] The appellant appeals against the
life imprisonment in accordance with the right conferred by s 309(1)
of the Criminal Procedure
Act. Ms Losch appeared on his behalf. The
State was represented by Ms Erasmus.
[5] The appellant’s statement in
terms of s 112(2) of the Criminal Procedure Act disclosed in summary
the following. On the
day in question the accused were walking in the
veld with their dogs when they came across X and four of her friends
near a sewerage
reservoir. They asked the children why they were not
at school. It was clear that the children were scared of them. They
told the
children to walk to the river, take off their clothes and
swim. The children did so. They then told the four boys to run away.
The appellant ordered X to take off her panties and lie on the
ground. He vaginally raped her. Although he did not use physical
force to subject her to his will, it was clear that she was scared
and would do anything he asked. Intercourse was not consensual.
He
was much bigger and stronger than her and it appeared that she was
scared of his dogs. After raping her he took his bike and
rode away.
He was later apprehended by the police and arrested.
[6] AB’ statement regarding the
preliminary events was the same as the appellant’s. AB stated
that as the boys were
running away he told Y to stop. He proceeded to
rape him twice anally. He walked back to the river and found X alone.
He told her
to remove her panties. He raped her vaginally and then
anally.
[7] Whatever one’s suspicions,
the guilty pleas did not establish that the appellant and AB were
co-perpetrators of the various
rapes or that they acted in the
furtherance of a common purpose. Although the record reflects that
the appellant and AB were both
convicted on count 6, being one of the
vaginal rape counts, this appears to have been an oversight. Based on
their pleas, one of
them should have been convicted on count 6, the
other on count 7. Nothing turns on this.
[8] The appellant had a prior
conviction for attempted rape for which on 2 April 2012 he was
sentenced to 5 years’ suspended
imprisonment and 18 months
correctional supervision.
[9] In aggravation the State called Dr
van Schalkwyk who examined X on 3 June 2014. The full extent of her
injuries only appeared
upon examination under anaesthesia. This
revealed a perineal tear which it was necessary to treat with sutures
in two layers. The
clitoris, labia majora and labia minora were
swollen. There were three tears and bleeding in the posterior
fourchette. There was
bruising and a perineal tear of the hymen.
There were tears in the posterior vaginal wall. There was a perineal
tear of the anus.
She had abrasions on her arms and legs.
[10] Dr van Schalkwyk testified that
X’s vaginal injuries were almost like those suffered by a
mother who has exerted too
much pressure in giving birth. Although Dr
van Schalkwyk was a relatively junior doctor (she started her
internship in 2012), she
said X’s vaginal injuries were more
serious than any other case she had yet encountered.
[11] X was discharged from hospital on
6 June 2014. Because of the vaginal sutures, she had to take salt
baths three times a day
for a number of weeks. Vaginal bleeding
continued for about two weeks after her discharge. Bleeding started
again more recently.
Her mother testified that X complained of
headaches and bladder pain and that it had been necessary to visit
the day hospital almost
monthly. Dr van Schalkwyk said that it might
be necessary to refer her to a specialist in George.
[12] Since her discharge from hospital
X has suffered nightmares. Having previously slept with siblings in
another room, it was
necessary for her parents to have her in their
bed though by the time her mother testified X was sleeping on a
separate mattress.
A very full impact report was filed which supports
the mother’s testimony. The social worker, Ms Links, expressed
the view
that X had suffered deep-seated emotional damage. She was
anxious, fearful and tearful.
She was afraid to move around in her
community and had a negative view of men. Nightmares persisted as did
headaches and bladder
pain. Ms Links considered that X should not be
exposed to judicial proceedings, even through an intermediary,
because she would
alternate between tearfulness and shivering silence
when asked to speak about the rape.
[13] The State also called the
investigating officer, Const Louw. At the time he testified he had
been with the Family, Child and
Sexual Offences Unit in Beaufort-West
for about three years. He said that his unit received three to five
rape cases per month.
X’s rape was the most serious case he had
yet come across.
[14] Louw had been summoned to the
vicinity by colleagues who had come across the boys whom the accused
had chased away. While he
was with the boys, the appellant cycled
across the road with nine to ten dogs. Y immediately identified the
appellant who was apprehended.
Louw and other colleagues then began
looking for X in the area identified by the boys. She was found by
one of his colleagues.
At that stage she was very unsteady
(‘papperig’) and there was blood on the seat of her
pants. The first thing X said
to him was that ‘dit was my
eerste keer gewees’ (ie the first time she had had sex). When
he asked her what had happened,
she said, very softly, that two boys
had raped her.
[15] The State also called X’s
class teacher, Ms Draghoender, who gave evidence about her school
report for 2014 (Grade 3).
This indicated a significant falling-off
in her performance at the end of the second term (the tests were
written in mid-June 2014),
with a modest improvement in the third
term. X complained of headaches and bladder pain and often had to ask
to leave the classroom.
She was by nature quiet but had now become
completely withdrawn. She needed a lot of help with her lessons. Ms
Draghoender recently
recommended to the principal that X receive
psychological counselling.
[16] The probation report in respect of
the appellant indicated that he was one of six children. He grew up
without a father figure.
He left school during the course of Grade 7.
He was employed occasionally as a farm worker. Apart from state
grants, he was the
family’s only breadwinner, his mother being
medically unfit for work.
[17] In his evidence in mitigation, the
appellant asked for forgiveness from X’s family and asked the
court to show him mercy.
When asked if there was anything more he
wanted to say to X and the family, he said no. The appellant’s
mother testified
that he was the oldest of five children. She asked
the magistrate to show leniency. She said the appellant contributed
money to
the family’s welfare and also helped around the house.
[18] The appellant was in custody for
11 months prior to being sentenced.
[19] Because X was 10 at the time of
the rape, the court a quo was obliged in terms of s 51(1) of Act 105
of 1997 to sentence the
appellant to life imprisonment unless it was
satisfied that substantial and compelling circumstances existed to
impose a lesser
sentence.
[20] The approach to the question
whether substantial and compelling circumstances exist is the one
laid down in S v Malgas
2001 (1) SACR 469
(SCA), which has been
consistently followed. In terms of that case the factors to be
considered in determining whether substantial
and compelling
circumstances exist are all the factors traditionally taken into
account in assessing an appropriate sentence, bearing
in mind,
however, that it is no longer ‘business as usual’ and
that the emphasis has shifted to the objective gravity
of the crime
and the need for effective sanctions. If, after considering all
relevant sentencing factors, the court has not merely
a sense of
unease but a conviction that injustice will be done if the prescribed
sentence is imposed or (to put it differently)
that the prescribed
sentence would be disproportionate to the crime, the criminal and the
legitimate needs of society, there will
be substantial and compelling
circumstances requiring the court to depart from the prescribed
sentence.
[21] The Supreme Court of Appeal has
emphasised, however, that a trial court should not base a finding of
substantial and compelling
circumstances on flimsy or speculative
grounds or hypotheses (see, eg S v PB
2011 (1) SACR 448
(SCA) paras
9-10 and the passages there quoted). In Malgas it was said that the
lawmaker has ordained that ‘ordinarily and
in the absence of
weighty justification’ the prescribed sentence should be
imposed. Unless there are ‘truly convincing
reasons for a
different response, the crimes in question are therefore required to
elicit a severe, standardised and consistent
response from the
courts’ (para 25).
[22] In determining whether an
injustice would arise from the imposition of the prescribed life
sentence, the customary sentencing
considerations which come into
play are the well-known triad comprising the offender, the offence
and the interests of society.
These three factors in turn require a
court to bear in mind the varying purposes served by criminal
punishment, namely deterrence,
prevention, retribution and
rehabilitation. Nevertheless, and in respect of crimes dealt with in
the Act, the type of sentence
to which these considerations point
should not be assessed as if the Act had not been enacted. As was
observed by Cameron JA in
S v Abrahams
2002 (1) SACR 116
(SCA) at
para 25 the Act ‘creates a legislative standard that weighs
upon the exercise of the sentencing court’s discretion’,
so that even where there are substantial and compelling circumstances
one should expect discretionary sentences to be more severe
than
before.
[23] The magistrate referred to the
relevant authorities dealing with sentencing under the minimum
sentencing regime. He noted all
the relevant circumstances of the
case. He also took note of the fact that the incidence of rape was
high in his area of jurisdiction,
that the community was outraged by
this particular crime and that schoolchildren had held demonstrations
outside the court. He
considered that deterrence and retribution
should be to the forefront, with prevention and rehabilitation
playing a lesser role.
It is clear that but for the provisions of the
Child Justice Act 75 of 2008
he would have imposed a life sentence
not only on the appellant but also on AB.
[24] In my view the magistrate’s
conclusion that there were no substantial and compelling
circumstances to impose a lesser
sentence cannot be faulted. A life
sentence cannot be said to be disproportionate to the crime, the
criminal and the legitimate
needs of society. The rape was a horrific
one, causing the victim serious injury and pain. It was preceded by
the frightening and
degrading experience of having been forced by the
accused, who had dogs with them, to go to the river, take her clothes
off and
swim. The appellant was not a first offender in relation to
sexual offences.
[25] Ms Losch submitted that the court
a quo misdirected itself by failing to give sufficient weight to
various factors. One of
these was that the appellant was only 21 when
he committed the crime. In Director of Public Prosecutions KZN v
Ngcobo & Others
[2009] 4 All SA 295
(SCA) the fact that the
appellants were aged between 20 and 22 at the time of the
premeditated murder was not regarded, on its
own or with other
factors, as constituting substantial and compelling circumstances.
The court said that none of them demonstrated
immaturity and that
there was no evidence of peer pressure. In S v Matyityi
2011 (1) SACR
40
(SCA) Ponnan JA was critical of the trial judge’s use of the
phrase ‘relative youthfulness’ without any attempt
at
defining what exactly that meant in respect of the particular
individual. The learned Judge of Appeal said that while someone
under
the age of 18 years could be regarded as naturally immature the same
does not hold true for an adult and that a person of
20 years or more
must show by acceptable evidence that he was immature to such an
extent that his immaturity can operate as a mitigating
factor.
[26] In the present case the evidence
does not suggest that the appellant was immature to an extent that it
could operate as a mitigating
factor.
[27] Other factors mentioned by Ms
Losch were that the appellant was a ‘productive member of
society’, earning about
R120 per day as a farm worker and
contributing to his family’s financial support. Factors of this
kind might play some role
where the sentencing court is considering
whether or not to impose a significant period of direct imprisonment.
In the present
case, however, the appellant was on any reckoning
facing a lengthy period of direct imprisonment. The factors in
question thus
had little role to play in the assessment of whether
there were substantial and compelling circumstances to depart from
the life
sentence.
[28] Ms Losch pointed to the fact that
the appellant had only reached Grade 7 and grew up without a father’s
guidance and
that his poor socio-economic environment exposed him to
alcohol and drugs at a young age. According to the probation and
correctional
supervision reports, the appellant had used dagga before
the incident. While the appellant’s socio-economic and domestic
circumstances were far from ideal, there are unfortunately many
people in this country exposed to similar environments but who do
not
resort to crime. There is no evidence that the use of dagga impaired
the appellant’s faculties at the time he perpetrated
the
offence.
[29] Ms Losch asked us to take into
account that the appellant had pleaded guilty and shown remorse. In S
v Matyityi supra Ponnan
JA said the following (para 13, footnotes
omitted):
‘There is, moreover, a chasm
between regret and remorse. Many accused persons might well regret
their conduct but that does
not without more translate to genuine
remorse. Remorse is a gnawing pain of conscience for the plight of
another. Thus genuine
contrition can only come from an appreciation
and acknowledgement of the extent of one’s error. Whether the
offender is sincerely
remorseful and not simply feeling sorry for
himself or herself at having been caught is a factual question. It is
to the surrounding
actions of the accused rather than what he says in
court that one should rather look. In order for the remorse to be a
valid consideration,
the penitence must be sincere and the accused
must take the court fully into his or her confidence. Until and
unless that happens
the genuineness of the contrition alleged to
exist cannot be determined. After all, before a court can find that
an accused person
is genuinely remorseful, it needs to have a proper
appreciation of inter alia: what motivated the accused to commit the
deed; what
has since provoked his or her change of heart; and whether
he or she does indeed have a true appreciation of the consequences of
those actions.’
[30] The magistrate was doubtful about
the genuineness of the remorse. So am I. The probation officer’s
view was that the
appellant had not demonstrated real insight into
the seriousness of his crime and its impact on the victim and her
family; he was
more worried about the legal consequences for himself
and the financial effect on his family. The version of events
furnished by
the appellant to the probation officer bears this out.
It differs materially from the plea. Among other things, the
appellant said
that he was persuaded by AB that the appellant had
consented to sexual intercourse. The appellant’s mother told
the probation
officer that while in custody her son had consistently
maintained his innocence. The appellant’s expression of remorse
in
court was perfunctory to say the least. His plea statement was
also, in the circumstances, a terse document which omitted any
mention
of joint conduct with AB after the point where they came
across the children and reprimanded them for not being at school.
[31] It is to the appellant’s
credit that he pleaded guilty but this does not take him very far.
The accused were arrested
on 3 June 2014. They do not appear to have
communicated an intention to plead guilty prior to the appearance on
8 April 2015. The
State’s case against them was strong. X and Y
were undoubtedly raped. The appellant was observed riding away from
the scene
with his dogs. Y, a 16-year-old boy, was able immediately
to identify him as one of the two attackers. In all likelihood the
other
children could also have done so.
[32] Finally Ms Losch referred to the
fact that the appellant had spent 11 months awaiting trial. This is
not an unusually long
time. If the appellant had pleaded guilty at an
earlier stage, the period would have been shorter. There was no
time-wasting by
the State.
[33] Ms Losch submitted that the
magistrate misdirected himself by over- emphasising the seriousness
of the offence, the interests
of society and the attitude of the
Beaufort-West community. This misdirection was supposedly reflected
in the fact that about 90%
of the judgment was devoted to these
matters. One should bear in mind, though, that the bulk of the oral
evidence which the magistrate
heard, and which he summarised in his
judgment, was evidence in aggravation. The magistrate was rightly
appalled by the crime and
undoubtedly impressed by the community’s
outrage but I do not gain the impression that he abdicated his
responsibility to
determine a just sentence. Balancing the relatively
meagre mitigating factors against the aggravating circumstances, I am
satisfied
that he came to the right conclusion.
[34] The appeal is dismissed.
ROGERS J
MAGONA AJ
APPEARANCES
For Appellant JE Losch
Chambers
Cape Town
For Respondent E Erasmus
Office of the Director of Public
Prosecutions
Western Cape