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[2018] ZAWCHC 78
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Olivier v S (A517/16) [2018] ZAWCHC 78 (19 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
CASE
NO: A 517/16
In
the matter between:
DONOVAN
OLIVIER
Appellant
and
THE
STATE
Respondent
JUDGMENT
DELIVERED ON TUESDAY 19 JUNE 2018
GAMBLE,
J:
[1]
Seven years ago, on 15 June 2011 the
appellant and another (Clive Coerecius) were each convicted in the
Regional Court, Oudtshoorn
on one count of rape in contravention of
section 3 of the Criminal Law Amendments (Sexual Offences and Related
Matters) Act, 32
of 2007 (“SORMA”) and two counts of
assault with intent to do grievous bodily harm (“assault GBH”).
On
28 June 2011 that court sentenced each of them to life
imprisonment, having taken the three counts together for purposes of
sentence.
[2]
Coerecius, alone, noted an appeal against
his conviction and sentence which was heard by this court (per Allie
and Mantame JJ) in
March 2012. Our colleagues confirmed the
convictions and the sentence of life imprisonment on the rape charge
and further imposed
sentences of 10 and 7 years respectively in
respect of the assault GBH convictions.
[3]
The appellant before this court appealed
only his sentence relying on the provisions of s309(1)(a) of the
Criminal Procedure Act,
51 of 1977 (“the CPA) which provides
for an automatic right of appeal against a life sentence imposed by a
Regional Court.
That appeal was first heard on 20 February 2015 by
Dolamo and Rogers JJ. The court was of the view that the Regional
Magistrate
had erred in imposing sentence on the appellant before
considering a report from a probation officer and in the
circumstances the
matter was remitted to the trial court to procure
such a report and for that court to reconsider sentence in the light
of any such
report.
[4]
On 20 September 2016 the Regional
Magistrate handed down sentence fresh after hearing the evidence of a
probation officer (Ms. Grootboom)
and imposed the same sentence as
before. The appellant noted a further appeal against that sentence
and on 20 February 2017 the
matter was heard by Henney J and Parker
AJ (as he then was). That court directed that the matter be removed
from the roll because
the judges were of the view that the appellant
had not been properly sentenced by the trial court in terms of the
directions issued
by Dolamo and Rogers JJ, the concern being that the
first court of appeal had directed that separate sentences should be
imposed
in respect of the assault GBH charges.
[5]
Hence, the matter went back to the Regional
Court where the appellant was once again sentenced to life
imprisonment on the rape
charge and to 3 years imprisonment on each
of the assault GBH charges. The appellant is before this court on
appeal against sentence,
again exercising his right in terms of s
309(1)(a) of the CPA.
[6]
The relevant background facts are set out
in detail in the judgment of Rogers J reported as
Olivier
v S
[2015] ZAWCHC 19
(26 February 2015)
and will accordingly not be repeated here in. Suffice it to say that
one evening shortly before Christmas 2010
the complainant (MM) aged
18 and her life-partner (PF) aged 30 and the father of her child,
were out walking in the veld near the
township of Toekomsrus in
Oudtshoorn hunting for scrap. The couple were accosted by the
appellant and his erstwhile co-accused
and threatened with knives.
Both of the attackers then each raped MM twice while PF was held at
knife point and made to look on.
They also threw stones at both of
the complainants. Later, as the couple were making their way home,
the assailants caught up with
them again and after pinning her down,
dragged MM face down along a tar road. MM sustained extensive
abrasions and bruises to her
face and body in the process. The
appellant’s plea of consensual intercourse with MM was rejected
by the Regional Magistrate
when convicting him.
[7]
In passing sentence after hearing Ms.
Grootboom’s evidence, the Regional Magistrate found that the
appellant had not established
the existence of substantial and
compelling circumstances warranting the imposition of a sentence
other than the minimum. In terms
of s51 (read with Schedule 2
thereto) of the Criminal Law Amendment Act, 105 of 1977 (the
so-called minimum sentencing legislation),
the minimum sentence was
life imprisonment in light of the fact that MM was repeatedly raped
by more than one person at the same
time – a so-called “
gang
rape
”.
[8]
B
efore us on appeal, Mr. Strauss for the
appellant, urged the court to find that there were indeed substantial
and compelling circumstances
which warranted the imposition of a
sentence other than the maximum. He noted that at the time the
offence was committed the appellant
had just turned 18 and that his
behavior suggested a level of immaturity which one would not expect
to find in an adult person.
[9]
It is of course true that had this offence
occurred just 2-3 months earlier the court would not have been
entitled to consider imposing
life imprisonment in view of the age of
the perpetrator. But we are not dealing with such an offender –
the appellant had
attained majority by the time he attacked these 2
hapless individuals and he is accordingly to regarded by the courts
as one who
is capable of being visited with the harshest sentence
that a court may impose.
[10]
The evidence of the probation officer, Ms.
Grootboom, suggests that the appellant grew up in the impoverished
circumstances on a
farm. He left school at a young age and initially
resorted to petty crime, selling drugs. Indeed, his criminal record
reflects
two convictions for possession of drugs in June and November
2008. In respect of the first offence he was fined R200 and in
respect
of the second the imposition of sentence was postponed for a
period of four years, the point being that the appellant was treated
lightly by the courts in respect of those two offences.
[11]
But the report of the probation officer
contains certain worrying remarks. It is recorded that the appellant
informed Ms. Grootboom
that he had in the interim taken to robbing
tourists and continued to peddle drugs. The appellant clearly did not
benefit from
the non-custodial sentences handed down previously. In
addition, there was an allegation made to Ms. Grootboom by MM that
threats
towards her safety had been made from within the prison where
the perpetrators are presently incarcerated. This coupled with the
fact that the Regional Magistrate recorded that the appellant and his
co-accused were noted to be mockingly smiling at the complainant
during the trial leads one to conclude that the appellant is indeed a
young man who continues to exhibit anti-social behavior and,
importantly, has not demonstrated remorse for his deeds. There can be
little doubt that society deserves to be protected against
a criminal
of his sort.
[12]
The
minimum sentencing legislation has been the subject of much
discussion in our courts. The pendulum has swung back and forth.
The
leading case,
Malgas
[1]
,
cautioned that the minimum sentences should not be deviated from for
flimsy reasons. Subsequent to
Malgas
the
Supreme Court of Appeal, in one of the leading cases on sentence in
rape matters,
Vilakazi
[2]
, stressed the importance of the potential for rehabilitation in an
accused person as a consideration potentially militating against
the
imposition of a life sentence. The appellant in that matter was a man
in his thirties who was in fixed employment and had an
unblemished
record at the time of the offence – the opportunistic rape of a
young woman around 14 years old. The Supreme
Court of Appeal
interfered with the sentence of life imprisonment and replaced it
with 15 years’ imprisonment on the basis
that it considered
that the facts showed that the appellant was not “
of
an inherently lawless character”.
[13]
The same cannot be said of the appellant
now before court. In her report Ms. Grootboom notes that the
appellant attended a farm
school in the Oudtshoorn district until
grade 7 whereafter, at the age of 15, he decided to give up.
Thereafter, he has lead the
life of a lay-about and petty criminal
while abusing drugs such as dagga, Mandrax and Tik. The report notes,
importantly in my
view, that the appellant has taken no
responsibility for his crimes and shows no remorse. On the contrary,
the observations of
the Regional Magistrate referred to earlier
suggest that he behaved callously and contemptuously towards his
victim and her partner.
Nevertheless, Ms. Jacobs for the State did
accept that there was a remote prospect that after a lengthy period
of imprisonment
the appellant might be sufficiently reformed to be
able to return to society as a responsible citizen.
[14]
The
principal factor which can be considered mitigatory is the
appellant’s youthfulness at the time of the offence. Often
it
is said that youthfulness
per
se
might be indicative of immaturity on the part of an offender, but
that is not a given and each case must be assessed on its merits.
In
Mabuza
[3]
Cachalia JA commented as follows in a case involving charges of
robbery and rape committed by offenders who were 18, 19 and 20
years
respectively.
“
[22]…
Youthfulness almost always reflects the moral culpability of juvenile
accused. This is because young people often do
not possess the
maturity of adults and are therefore not in the same position to
assess the consequences of their actions. They
are also susceptible
to peer pressure and adult influence and vulnerable where proper
adult guidance is lacking. There are, however,
degrees of maturity,
the younger the juvenile the less mature he or she is likely to be.
(
S v Lehnberg en ‘n ander
1975(4) SA 553 (A)). Judicial
policy has thus appreciated that juvenile delinquency does not
inevitably lead to adult criminality
and is often a phase of adult
development. (
S v Z en Vier Ander
Sake
1999 (1) SA SACR 427 (E)).
The degree of maturity must always be carefully investigated in
assessing a juvenile’s moral culpability
for the purposes of
sentencing. The Constitutional Court warned in
S
v Williams and Others
(1995 (2)
SACR 251
(CC) at [85]) that youthful offenders, particularly, should
not be sacrificed on the altar of deterrence. There is therefore
compelling
justification for the view that youthfulness, at least
before the advent of the minimum sentencing regime, was
per
se
a factor mitigating sentence.
[23] However, in requiring a
sentencing court to depart from the prescribed sentence in respect of
offenders who have attained the
age of 18 only if substantial and
compelling circumstances justify his departure, the legislature has
clearly intended that youthfulness
no longer be regarded as
per se
a mitigating factor. So while youthfulness is, in the case of
juveniles who have attained the age of 18, no longer
per se
a
substantial and compelling factor justifying a departure from the
prescribed sentence, it often will be, particularly when other
factors are present. A court cannot, therefore, fully discharge its
sentencing function by disregarding the youthfulness of an
offender
in deciding on an appropriate sentence, especially when imposing a
sentence of life imprisonment, for in so doing it would
deny the
youthful offender the human dignity to be considered capable of
redemption.”
[15]
Cachalia
JA went on to consider cases such as
Sikhipha
[4]
– in which a 35 year old man raped a 13 year old girl and whose
life sentence was replaced with 20 years’ imprisonment
-
and
Nkomo
[5]
– in which a 29 year old man held an adult woman hostage in a
hotel room for many hours and repeatedly raped her and was
ultimately
sentenced on appeal to 16 years’ imprisonment – and
observed that the factors in those matters that were
considered to
constitute substantial and compelling circumstances included good
work records, the prospect of personal rehabilitation
and the absence
of injuries to the complainant arising out of the rape itself. On the
rape count the sentence of life imprisonment
in
Mabuza
was replaced with one of 16 years.
[16]
In this matter, it appears from the J88
medical report form that there were no significant injuries to MM’s
genitalia as a
consequence of the rape. There were injuries to her
face and arms as a consequence of being dragged on the tar road but
those injuries
formed the basis of a separate charge of assault GBH
for which the appellant was ultimately sentenced to 3 years’
imprisonment
by the Regional Magistrate.
[17]
In dealing with the aggravating factors in
Mabuza
,
Cachalia JA (in a passage which echoes certain of the
dicta
in
Vilakazi
)
observed as follows.
“
[29] As
against these mitigating factors the aggravating factors must be
considered. There can hardly be a more terrifying experience
than to
be awakened in the middle of the night by armed intruders, to have
one’s privacy invaded and to be subjected to an
ordeal for an
hour with no idea of one’s fate. That is what the appellants
subjected M and her daughter to. The appellants
threatened to hurt
them if they did not co-operate. They ignored S’s crying and
pleas not to rape her. It would have been
obvious to them that she
was distressed but they threatened to chop her with the axe if she
refused to succumb to their predatory
behaviour. They each raped her
in turn and then appellant No 1 did so for a second time. They
invaded her body, humiliated her
and stripped her of the dignity. And
despite overwhelming evidence against them, they denied any
involvement in the crimes throughout
the trial and continued to do so
to the probation officers who interviewed them during the compilation
of their pre-sentencing
report.”
[18]
The aggravating factors in this matter are
not at all dissimilar. The couple involved, MM and PF, were evidently
poor people who
were out scouting for scrap just before Christmas.
Perhaps they wanted to have a little bit of money to buy something
for themselves
or their loved ones, or just to put food on the table?
In any event, they were followed in the veld for some distance by the
2
assailants who eventually cornered them and threatened them with
knives. MM was tossed to the ground and violated in public with
her
life-partner looking on, utterly helpless to come to her assistance
for fear of grave injury to either her or himself. And
then MM was
subjected to the indignity of being violated a second time by both
men (“’
n tweede rondte”
as it was crudely described). Further,
when the matter came before the court, the complainant had to endure
the further indignity
of the absurd suggestion that she had consented
to gratuitous intercourse with 2 scoundrels whom she only knew by
sight. And, this
insult was perpetuated by the appellant in his
interview with Ms. Grootboom.
[19]
In
Matyityi
[6]
Ponnan JA discussed the issue of a perpetrator’s youthfulness
in the context of a case involving a gang of criminals preying
on
people who parked their vehicles at a remote spot near East London.
“
[14] It
is trite that a teenager is prima facie to be regarded as immature (
S
v Seegers
1970 (2) SA 506
(A))
and that youthfulness of an offender will invariably be a mitigating
factor... unless it appears that the viciousness of his
or her deeds
rules out immaturity (
S V Dlamini
1991 (2) SACR 655
(A). Although the exact extent of mitigation will
depend on all of the circumstances of the case, in general the court
will not
punish an immature young person as severely as it would an
adult (
S v Mohlobane
1969 (1) SA 561
(A)). It is well established that, the younger the
offender, the clearer the evidence needs to be about his or her
background,
education, level of intelligence and mental capacity, in
order to enable a court to determine the level of maturity and
therefore
moral blameworthiness (
S
v Lehnberg en ‘n Ander
1975 (4) SA 553
(A)). The question, in the final analysis, is whether
the offender’s immaturity, lack of experience, indiscretion and
susceptibility
to being influenced by others reduces his
blameworthiness (
S v Van Rooi
1976 (2) SA 580
(A)). Thus, while someone under the age of 18 years
is to be regarded as naturally immature, (
S
v Machasa en Andere
1991 (2)
SACR 308
(A)), the same does not hold true for an adult. In my view 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 (
S v Dlamini
supra). At the age of 27 the
respondent could hardly be described as a callow youth. At best for
him, his chronological age was
a neutral factor. Nothing in it
served, without more, to reduce his moral blameworthiness.”
[20]
Ponnan JA went on to caution sentencing
courts about the importance of observing the separation of powers
principle and allowing
the Legislature to prescribe specific
sentences in the interests of society.
“
[23]….(O)ne
notices all too frequently a willingness on the part of sentencing
courts to deviate from the minimum sentences
prescribed by the
legislature for the flimsiest of reasons - reasons, as here, that do
not survive scrutiny. As
Malgas
makes plain, courts have a duty, despite any personal doubts about
the efficacy of the policy or personal aversion to it, to implement
those sentences. Our courts derive their power from the Constitution
and, like any other arms of State, owe their fealty to it.
Our
constitutional order can hardly survive if courts fail to properly
control the boundaries of their power by showing due deference
to the
legitimate domains of power of the other arms of State. Here
Parliament has spoken. It has ordained minimum sentences for
certain
specified offences. Courts are obliged to impose those sentences
unless there are truly convincing reasons for departing
from them.
Courts are not free to subvert the will of the legislature by resort
to vague, ill-defined concepts such as ‘relative
youthfulness’
or other equally vague and ill-founded hypotheses that appear to fit
the particular sentencing officer’s
personal notion of
fairness. Predictable outcomes, not outcomes based on the whim of an
individual officer, is (sic) foundational
to the rule of law which
lies at the heart of our constitutional order.”
[21]
As I understand the reasoning of the court
in
Matyityi
,
it found that when taking into account the age of a person who was 27
years old as a substantial circumstance mitigating against
the
ultimate sentence, the trial court was considered to have been
guilty of applying “
flimsy
reasoning”
in introducing the
concept of “
relative
youthfulness”.
The present case
is, however, quite different. Here the appellant was just 18 at the
time he committed these horrific offences,
and, importantly, he was a
good 2 years younger than Coericius, who, upon the analysis of Ponnan
JA was at an age when he was expected
to demonstrate that his conduct
was attributable to immaturity.
[22]
It must be stressed that we are dealing
here only with the appellant’s moral blameworthiness. We were
not privy to the arguments
advanced on behalf of Coericius before
Allie and Mantame JJ, nor do we have their reasoning in upholding the
life sentence imposed
on him. In addition, while the attack on MM and
PF was brutal, I do not regard it to be of such a degree of
viciousness that it
can be said that it
per
se
rules out immaturity on the part of
the appellant. Furthermore, Ms. Grootboom’s evidence tells us
that the appellant grew
up in a rural environment and that his level
of education is low – not more than that of a primary school
pupil – despite
being of the age of a high school pupil at the
time he left school. The appellant’s criminal record reflects
substance abuse
and this is also confirmed in the evidence of Ms.
Grootboom. Finally, one does not see in the appellant any evidence of
a young
person who has taken responsibility for himself in his
community. He is an unemployed lay-about who leeches off others for
some
limited form of income.
[23]
All of these factors lead me to the
inevitable conclusion that the appellant lacks the maturity of an
adult and that his youthfulness
is certainly a factor which lowers
his moral blameworthiness. If one further has consideration for the
fact that the physical scars
of the victim were not severe, I am
persuaded, in the words of Cachalia JA in
Mabuza,
that this case “
is not one that is
devoid of substantial and compelling circumstances justifying a
lesser sentence than the prescribed minimum.”
In
my view the imposition of the prescribed life sentence on the
appellant was disproportionate in the circumstances of this case
and
falls to be set aside.
[24]
What sentence would then be appropriate?
The Regional Magistrate delivered a thorough evaluation of the
effects that rape has had
on the community in Oudtshoorn. He observed
that there is an extremely high incidence thereof in the Klein Karoo
and that by far
the majority of serious cases that come before that
court are rape and other prosecutions under SORMA. It is necessary
therefore
that a sentence is imposed which respects the demands of
that community and which sends out a strong warning to future
offenders
that their repulsive behavior will be dealt with by the
imposition of lengthy periods of imprisonment. Only then will the
women
and children of Bridgton, Toekomsrus and Bongolethu begin to
feel safe about moving around their streets and public spaces.
[25]
The evidence of the complainant given in
2017, many years after the event, was that she and PF still bore the
psychological scars
of the attack and further, as I have said, that
threats towards her safety were still being from prison made albeit
not necessarily
by the appellant. The evidence suggests, too, that
the appellant was not influenced in his misconduct by Coericius but
rather that
he was the instigator of the attack on the couple. It was
an attack that did not end where it started but culminated in the
victim
being further abused and dragged along a tar road when she was
encountered a second time by the appellant a short while after the
rape. Evidently, the appellant’s regard for the bodily
integrity and dignity of MM knew no bounds. But that offence was
dislocated in time and place from the rape and clearly warrants a
separate and distinct sentence. So too does the sentence for the
attack on PF who was threatened by the appellant with a sizeable
knife while the rape was taking place and who was also hit on
the
head with that knife by the appellant, thereby drawing blood.
[26]
Finally, it seems fair to say that the
offence was not premeditated but rather opportunistic as the two
attackers came upon the
couple by chance. That having been said, they
followed the couple for a distance before attacking them, and had
more than ample
opportunity to reflect on the wrongfulness of their
conduct.
[27]
For each of the assaults with intent to do grievous bodily harm, the
Regional Magistrate imposed 3 years’ imprisonment
on the
appellant. He ordered that, in terms of s280(2) of the CPA, those
sentences should run concurrently with the life sentence.
That, in
any event, is consistent with
s39(2)
of the
Correctional Services Act
111 of 1998
which provides that all finite sentences are to be served
concurrently with any sentence of life imprisonment. Given that a
sentence
of life imprisonment will no longer be imposed, in light of
the finding above that substantial and compelling circumstances have
been found to exist, I am of the view that the sentences on the
assault counts were fair in the circumstances and there is no reason
to interfere with them save to order that they should run
concurrently with each other and to be served in addition to the
sentence
to be imposed on the rape count.
[28]
In relation to the rape count, I am
satisfied that a sentence of 22 years’ imprisonment will
address all the traditional aims
of punishment and be fair to the
accused, the victim and society, while emphasizing the gravity of the
offence. All the sentences
should be back-dated to the date of the
original sentence imposed in the Regional Court.
ORDER
OF COURT:
A.
The appeal against the sentence imposed on
count 1 succeeds.
B.
The sentence of life imprisonment on count
1 is set aside and replaced with a sentence of 22 years’
imprisonment.
C.
The appeal against the sentences on counts
2 and 3 are dismissed and the sentences of 3 years’
imprisonment on each count
are confirmed.
D.
In terms of
s280(1)
of the
Criminal
Procedure Act, 51 of 1977
it is ordered that the sentences on counts
2 and 3 should be served concurrently with each other.
E.
The effective sentence of the appellant is
therefore 25 years’ imprisonment.
F.
All the sentences are antedated to 28 June
2011 and shall be deemed to have commenced running on that date.
__________________
GAMBLE J
SHER
J :
I
agree.
____________________
SHER
J
[1]
S v Malgas
2001
(1) SA 439
(SCA)
[2]
S v Vilakazi
2009
(1) SACR 552 (SCA)
[3]
S v Mabuza and others
2009(2) SACR 435 (SCA)
[4]
S v
Sikhipa
2006 (2) SACR 439 (SCA)
[5]
S v
Nkomo
2007
(2) SACR 198 (SCA)
[6]
S v Matyityi
2011 (1) SACR 40
(SCA)