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[2021] ZAWCHC 158
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McLean v S (A112/21) [2021] ZAWCHC 158; 2021 (2) SACR 437 (WCC) (12 August 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No:
A112/21
In
the appeal between:
ALBRO
MCLEAN
APPELLANT
And
THE
STATE
RESPONDENT
JUDGMENT
DELIVERED AND SUBMITTED ELECTRONICALLY ON 12 AUGUST 2021
GOLIATH
DJP
[1]
The appellant was convicted in Wynberg
Regional Court on one count of the contravention of Section 3 read
with
sections 1
,
55
,
56
(1),
57
,
58
,
59
,
60
and
61
of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of
2007
. It was alleged that the appellant
committed this offence on 28 August 2017 at Seawinds, by unlawfully
and intentionally raping
the complainant.
[2]
Aware of the applicable Minimum Sentence
Legislation, the appellant pleaded not guilty, but subsequently
changed the plea after
conclusion of the evidence of the complainant
by making admissions in terms of Section 220 of the Criminal
Procedure Act, whereby
he admitted that he had sexual intercourse
with the complainant without her consent on the relevant date. The
appellant apologized
to the complainant for having to testify, and
expressed his regret for the incident.
[3]
The accused was also charged with
assault with the intent to cause grievous bodily harm. Consequently ,
after the appellant had
made admissions admitting he had raped the
complainant, the State continued to lead evidence in respect of the
count of assault.
However, during his testimony, he later denied the
charges. It therefore became apparent that the appellant contradicted
and retracted
the section 220 admissions and denied culpability in
respect of the charges. On 16 February 2021, the Court convicted the
appellant
on the count of rape and sentenced him to life
imprisonment. He was acquitted on the charge of assault. It was
ordered that the
appellant's particulars be included in the National
Register for Sexual Offenders. The appellant exercised his automatic
right
of appeal against sentence
only.
[4]
The appellant and the complainant are
long-standing neighbours. The complainant indicated that she had
known the appellant since
her childhood. The complainant was 21 years
old at the time of the incident and the appellant was 41 years old.
She testified that
on 28 August 2017 she received a call from her
neighbour, L[....], who had enquired about the appellant's sister's
whereabouts.
She subsequently went for a walk and saw the
appellant's sister, M[....], on their stoep. She approached M[....]
and informed
her that L[....] was looking for her. The appellant
arrived at the scene and told her that she should not stand outside
the gate.
He invited her in and she proceeded to sit on the stoep and
smoked a cigarette. At some stage, M[....] invited her into the
house,
and she proceeded to the lounge. While sitting on the couch,
the appellant appeared. At some stage, M[....] disappeared and she
enquired from the appellant as to the whereabouts of M[....]. He
informed her that the latter had left to visit a friend.
[5]
When the appellant's sister failed to
return, she decided to leave. The appellant suddenly became
aggressive and pushed her in order
to prevent her from leaving the
house. He threw her on the bed and said
"he
could make her
a
woman".
He started to assault her. She
testified that the appellant executed a physical attack on her by
continuously hitting her, and punching
her in the face several times.
He held his hand over her mouth while assaulting her. He also
smothered her with a pillow over her
face and she became dizzy.
Thereafter he had sexual intercourse with her without her permission.
After the incident, she went home.
She was crying, and her mother
came to investigate why she was upset. She informed her mother what
had happened, and her mother
contacted the police.
[6]
She explained that she was not a close
friend of M[....] and rarely visited her neighbours. The main reason
she went to the appellant's
residence was because she wanted to relay
L[....]'s message to M[....]. She trusted the appellant and
considered him as an older
brother. She testified that during her
ordeal she had indicated to him that she was a lesbian , but he
persisted with the attack
on her. The complainant indicated that she
had conveyed her sexual orientation to her family at a young age and
they had accepted
it. According to the complainant, the appellant was
aware of her sexual orientation prior to the
incident.
[7]
The complainant received medical
treatment at Victoria Hospital. Nodikozelo Patience Ntwana, a
forensic assault nurse examiner at
the hospital, testified that she
examined the complainant on 29 August 2017 and completed a J88
report. In her report, she noted
that the complainant was crying and
very emotional. She observed injuries on the complainant namely,
swelling on the upper and
lower lip, and swelling on the left jaw.
There was no clinical evidence of drugs or alcohol. She concluded
that a high degree of
force was applied to the lip and jaw area to
sustain the relevant injuries. There were no other visible injuries.
[8]
During her testimony, it was apparent
that the complainant was traumatized by having to relate and relive
the events that had transpired.
The matter had to be postponed on the
first day of the hearing due to her emotional state. A victim impact
report was obtained
relating to the complainant. The report concluded
that as a result of the incident, she experienced nightmares,
flashbacks, has
difficulty trusting males, and has become
introverted. She has regular emotional breakdowns and episodes of
rage, which are uncharacteristic.
The complainant also experienced
constant feelings of fear and isolation, and her sense of security
was violated. The complainant
reported that the acts of the appellant
have broken her as a person and she finds daily life extremely
difficult to navigate. The
medical examination and HIV testing that
she had to be subjected to caused further
trauma.
[9]
The complainant also experienced
suicidal ideation and attempted to commit suicide. Subsequent to the
suicide attempt, she has engaged
in self-harm due to continued
negative thoughts. Apparently, members of the community were aware of
the incident and many passed
negative remarks. Some members
pressurized her to withdraw the case, and threatened to harm her if
she does not comply. This further
contributed to her inclination to
withdraw from society. It is clear from the report that the incident
had a significant impact
on her normal physical, psychological and
emotional well-being, as well as her cognitive behaviour and
interpersonal relationships.
[10]
A probation officer's report was also
obtained relating to the appellant dated 12 February 2021. The
personal circumstances of the
appellant were set out in detail in the
report. At the time of the trial, the appellant was 45 years old. He
grew up in a disadvantaged
community and completed grade 9 at school.
He was unmarried and has three children with different women. The
appellant worked from
time to time, the longest period being four and
a half years as a cleaner. The appellant conceded that he was
addicted to drugs,
and his drug of choice was crystal meth also known
as "Tik". It appears that he was under the influence of
mandrax at
the time of the incident. It is significant that the
appellant, when consulting with the probation officer, denied that he
had
raped the complainant as he had previously admitted.
[11]
The appellant had numerous previous
convictions committed as from 1992 to 2012 with crimes ranging from
drug related offences, various
instances of theft, housebreakings
with intent to steal and theft, as well as robbery. The court
emphasized the previous conviction
in 2015, where the appellant was
found guilty of committing an act of sexual penetration with a
minor. He was sentenced to
5 years imprisonment, suspended for a
period of 5 years on certain conditions. The offence in this matter
was committed during
the period of suspension. Clearly, the suspended
sentence and opportunity to rehabilitate himself did not deter the
appellant from
committing another sexual offence. The court correctly
found that as time progressed, the offences committed by the
appellant became
more
serious.
[12]
Counsel on behalf of the appellant argued the case is significantly
less serious than the cases ordinarily
encountered by the court and,
having regard to the various graduations of seriousness of the
offence, the sentence is disproportionate
to the offence. Counsel
therefore submitted that the court overemphasized the seriousness of
the offence at the expense of the
personal circumstances of the
appellant. Counsel further argued that the court had failed to attach
sufficient weight to the substantial
factors placed on record,
including those factors mentioned in the probation officer's report.
Counsel on behalf of the State contended
that the court had due
regard to all the relevant factors, that there was no
disproportionality in the sentence imposed, and that
there are
no grounds to interfere with the sentence. The State emphasized that
the circumstances of the case involved the
phenomenon known as
"corrective rape"
where a victim is targeted out of
prejudice against her sexual orientation. The State reminded the
court that this particular crime
is more complex than a mere breaking
of the law.
[13] The
Magistrate gave a very detailed judgment dealing with all aspects
relating to sentence in the matter
before court. The personal
circumstances of the appellant were assessed and taken account of, as
well as the factors relating to
the crime and the effect of the crime
on the victim. The latter are aggravating factors to be given
appropriate weight in consideration
of the sentence. The court also
considered the fact that the appellant had been incarcerated for
approximately three years at the
time of sentencing. The Magistrate
dealt with the contradictions in the version of the appellant, who
subsequently made admissions
and admitted that he had raped the
complainant. The Magistrate pointed out that the appellant disputed
the complainant's version
during her testimony, then admitted
culpability for a short time, then again denied it during the course
of the trial.
[14]
It is evident that notwithstanding the
DNA evidence, the appellant persisted that no sexual intercourse took
place and the complainant
had to endure humiliating accusations
regarding being a drug addict, a liar and jealous of his relationship
with his girlfriend.
It is therefore evident that the court cannot be
blamed for being skeptical about the accused's remorse for his
actions. The court
found that the appellant lacked empathy and showed
no remorse for his actions. There is no doubt from his testimony
during the
trial and the probation officer's report that the
appellant showed no remorse.
[15]
It is a trite principle of our law and
it has repeatedly been stressed by our courts, that the imposition of
sentence falls pre-eminently
within the discretion of a trial court.
The powers of the court of appeal are relatively limited to those
instances where the sentence
is vitiated by misdirection or where the
sentence imposed is startlingly inappropriate and induces a sense of
shock or where there
is a striking disparity between the sentence
imposed, and that which a court of appeal would impose. It has become
an established
principle since the advent of the
Criminal Law
Amendment Act 105 of 1997
that the sentences specified in the Act are
not to be departed from lightly or for flimsy reasons, and
speculative hypotheses favorable
to the offender, undue sympathy or
an aversion to long-term imprisonment are excluded. The existence of
substantial and compelling
circumstances means that there has to be
"truly convincing reasons"
to depart from
the imposition of a prescribed minimum
sentence. (See:
S v Malgas
2001(1)
SACR 469 (SCA).
[16]
The aggravating features of the crime
are overwhelming. The appellant was in a position of trust as her
neighbour and flagrantly
abused that trust. He opportunistically
launched a vicious attack on the complainant who fortuitously visited
his residence to
deliver a message to his sister. Although the
physical injuries in general were not life threatening, the act of
placing a pillow
on her face mirrors his intention to lower her
defences and force her into submission. The mere fact that she became
dizzy is indicative
of the extent of the force used, which just falls
short of asphyxiation. The manner in which he had executed the attack
on the
complainant was cruel and degrading. The appellant was aware
of the sexual orientation of the complainant and indicated to her
that he intended to
"make her
a
woman"
in
the belief that rape can cure or correct her sexual orientation.
Ultimately, corrective rape constitutes a hate crime, and is
endemic
in our country. Courts should send out a clear message that these
type of attacks would not be tolerated. The complainant
was severely
traumatized by the incident, which was still evident when she
testified in court three years after the
incident.
[17]
The Magistrate's assessment and
conclusions cannot be faulted. No aspects relating to sentence were
not considered by the Magistrate,
who found, in due course, that
there were no substantial and compelling circumstances to deviate
from the prescribed minimum sentence
of life imprisonment. The
Magistrate in my view mentioned all the relevant mitigating and
aggravating circumstances and I am unable
to find that
the sentence imposed was the result of a
material misdirection or induces a sense of shock, or that
the
sentence is totally out of
proportion to the gravity or magnitude of the offence, or that the
sentence is grossly excessive. I am
satisfied that on a consideration
of all relevant factors cumulatively, there are no substantial and
compelling circumstances to
justify an interference with the sentence
imposed.
[18]
In the result the following order is
made:
The
appeal against sentence is dismissed.
GOLIATH,
DJP
DEPUTY
JUDGE PRESIDENT
I agree.
PANGARKER
, AJ
ACTING
JUDGE OF THE HIGH COURT