About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2011
>>
[2011] ZAGPJHC 157
|
|
S v Chilenge and Another (SS20/4/2011) [2011] ZAGPJHC 157 (7 November 2011)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
NOT REPORTABLE
REPUBLIC OF
SOUTH AFRICA
SOUTH
GAUTENG HIGH COURT
(JOHANNESBURG)
CASE NO:
SS20/4/2011
DPP REF NO:
JPV2011/0022
DATE:07/11/2011
In the matter between
THE STATE
and
JACINTO ANTONIO
CHILENGE
...................................................
ACCUSED
1
FELIX JOSE
MACHAVA
................................................................
ACCUSED
2
J U D G M E
N T
(SENTENCE)
VAN OOSTEN J:
[1] The accused have been
convicted of a large number of atrocious crimes. They must now be
sentenced. In the consideration of an
appropriate sentence to be
imposed, this Court is enjoined to carefully and dispassionately
consider and balance the gravity of
the offenses, the personal
circumstances of the accused and the interests of society. On the
other hand the interests of the victims
are equally relevant and
should not be overlooked.
[2] The facts of this matter
reveal a series of horrific crimes committed in a spree of organised,
violent intrusions into private
homes, over a period of some twelve
months, when seven young adult women became the victims of rape which
in the past, has been
referred to as the most heinous of crimes.
Their houses were broken into and valuable possessions robbed. They
were soft targets:
defenceless women living in poor conditions, who
were asleep. The accused’s conduct was pre-planned and purely
intended for
financial gain, personal gratification and humiliation
and degradation of women. The accused acted in concert and were well
prepared
to overcome any possible resistance by carrying firearms and
housebreaking implements. It is true that the firearms were not used
except in two incidents when shots were fired. That was merely
indicative of the callousness and sadistic nature of the attacks.
It
may well have been otherwise had the complainants offered resistance.
It was only their submissiveness that prevented further
tragedies.
The cruelty of the attacks extended beyond the sexual abuse of the
complainants when M’s boyfriend was gratuitously
assaulted with
a firearm. The complainants, except for the last incident, were
deliberately subjected to the indignity of being
sexually abused in
the presence of others. The ease with which the victims were
overpowered and their immediate submission must
have encouraged the
further incidents. There was more than sufficient time for reflection
which the accused did not avail themselves
of.
[3] The State, in aggravation of
sentence, called five of the complainants to testify as to the
affects of the sexual abuse on their
lives, their circumstances and
their attitudes towards men. One after the other they related the
emotional distress, the anxiety
it has caused as well as the lasting
harm to their relationships and interactions with men. Ms M, who was
pregnant at the time,
testified that she was advised by her doctor
some three months after the incident, to abort the foetus. The
medical examination
of the complainants in several instances revealed
serious gynaecological injuries. The absence of any serious physical
injuries
to any of the complainants cannot be attributed to the
accused but was merely providential as no resistance was offered.
[4] This brings me to the
personal circumstances of the accused which were put before me from
the bar. Both the accused are from
Mozambique where they have grown
up. Accused 1 is 26 years old, married and the father of three young
children. He was self-employed
and financially supported the extended
family. He has not had the advantage of proper education and a
sophisticated background.
He has no previous convictions. Accused 2
is 33 years old, married with three minor children. He admitted one
previous conviction
in 2003 when he was sentenced to effectively 4
years’ imprisonment for the unlawful possession of a firearm
and ammunition.
Counsel for the defence referred to the hardship
incarceration of the accused as the breadwinners of their families
will cause.
This is undoubtedly so but on the other hand it is one of
the inevitable consequences flowing from the breadwinner’s
involvement
in serious crimes.
[4] The State, in aggravation of
sentence, led the evidence of Brigadier Labuschagne, the Head of the
Investigative Pshycology Section,
Forensic Services, South African
Police Services, who compiled a pre-sentence report in respect of
this matter. In his testimony
Brig Labuschagne dealt with the
statistics of the incidence of sexual crimes and serial rapes in
South Africa, the prevalence of
which is on the increase and has
reached alarming proportions. Shocking as the statistics may be, it
remains necessary to assess
the individual accused in the
circumstances of this case. Rape is a cancer in our society: it
destroys the rape victim’s
self respect, dignity and physical
and mental integrity. Serial rapists, as are serial murderers, are
labelled as inherently evil
and are regarded as the most loathed
criminals in our community.
[5] Society with justification
demands that crimes such a rape be severely punished by way of heavy
and deterrent sentences. Retribution
and deterrence come to the fore
in the circumstances of this case.
The minimum sentences provided for in the
Criminal Law Amendment Act
105 of 1997
, are applicable in regard to the rape and the
housebreaking and robbery charges. In my view there are no
substantial and compelling
circumstances present which would justify
deviation from the minimum sentences (See
S
v Matyityi
2011
(1) SACR 40
(SCA) para 11). The accused’s personal
circumstances reveal nothing out of the ordinary and recede into
insignificance against
the gravity of the offences. They have
showed
no remorse for their conduct. In their evidence they persisted in
their false denials and false accusations were made as
to a
conspiracy. There are at this stage no prospects of rehabilitation
except over an extended period of time within the confines
and
disciplinary structures of the prison environment. In this regard
Brig Labuschagne recommended as part of treatment, that the
accused
participate in such sex offender programmes as Correctional Services
may offer and that they are engaged in psychotherapy
while in prison.
The possibility in general of sexual offenders, and therefore the
accused, offending again even after incarceration,
Brig Labuschagne
opined, is real.
The
sentences I intend to impose, in my view, are proportionate to the
crimes the accused have been convicted of. Finally,
I
am satisfied that the accused present a danger to society and that
their permanent removal from society is justified and that
the
sentences I intend to impose.
[6] In the result the accused are
sentenced as follows:
6.1
Accused 1
:
On:
Count 1 (Housebreaking/Rape): 15
years’ imprisonment.
Count 7 (Housebreaking/Robbery):
15 years’ imprisonment
Count 14 (Housebreaking/Robbery):
15 years’ imprisonment
Count 20 (Housebreaking/Robbery):
15 years’ imprisonment
Count 26 (Housebreaking/Robbery):
15 years imprisonment
Count 33 (Housebreaking/Robbery):
15 years’ imprisonment
It is ordered that the sentences
imposed on counts 1, 7, 14, 20, 26 and 33 be served concurrently.
Counts 10 (Rape), 11 (Compelling
witnessing of sexual act), 15 (Rape), 17 (Compelling witnessing of
sexual act), 21 (Rape), 23 (Compelling
witnessing of sexual act), 28
(Rape), and 34 (Rape): taken together for purpose of sentence: Life
imprisonment.
6.2
Accused
2
On:
Count 1 (Housebreaking/Rape): 15
years’ imprisonment
Count 7 (Housebreaking/Robbery)
15 years’ imprisonment
Count 14 (Housebreaking/Robbery):
15 years’ imprisonment
Count 20 (Housebreaking/Robbery):
15 years’ imprisonment
Count 26 (Housebreaking/Robbery):
15 years’ imprisonment
Count 33 (Housebreaking/Robbery):
15 years’ imprisonment
It is ordered that the sentences
imposed on counts 1, 7, 14, 20, 26 and 33 be served concurrently.
Counts 2 (Rape), 4 (Rape), 8
(Rape), 9 (Compelling witnessing of sexual act), 17 (Compelling
witnessing of sexual act), 21 (Rape),
23 (Compelling witnessing of
sexual act), and 28 (Rape): taken together for the purpose of
sentence: Life imprisonment.
Counts 12 (Unlawful possession of
firearm) and 13 (Unlawful possession of ammunition): taken together
for purpose of sentence: 3
years’ imprisonment.
Count 37: 12 months imprisonment.
_________________________
FHD VAN OOSTEN
JUDGE OF THE HIGH COURT
COUNSEL FOR THE STATE
ADV LR SURENDRA
ADV BF MNISI
COUNSEL FOR THE
ACCUSED ADV M BOSIKI
DATE OF JUDGMENT 7
NOVEMBER 2011