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[2012] ZAGPJHC 159
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Rooi v S (A130/12) [2012] ZAGPJHC 159 (13 September 2012)
REPORTABLE
SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE
NO: A130/12
DATE:13/09/2012
In
the matter between:
ABRAM
ROOI
........................................................................................
APPELLANT
and
THE
STATE
...........................................................................................
RESPONDENT
J U D G M E N T
Summary
Criminal Procedure –
Minimum sentence – Rape – Applying the principles set out
in
S v Vilakazi
2009
(1) SACR 552
(SCA) – Test whether substantial and compelling
circumstances exist to impose a lesser sentence than the prescribed
minimum
one, not only based on traditional factors - The test for
appropriate sentence includes whether the sentence is proportional to
the offence.
WEPENER J:
[1] The appellant was convicted
of one count of rape in that he had unlawful intercourse with a 15
year old girl. The evidence showed
that the complainant, although 15
years old, was a person who functioned at a mental age of a 5 year
old person. The facts are
briefly that on the complainant’s
version she went to the appellant’s residence of her own
accord. When she arrived
there, the appellant undressed her and
proceeded to have intercourse with her. Afterwards he told her not to
tell her parents what
had happened. However, the complainant who
experienced pain during the incident reported to her friends what had
happened when
she left the appellant’s place of residence.
[2] Because of the incident the complainant received at least ten
sessions of counselling. The appellant’s version that he
and
the complainant were lovers and had previously had an affair was
rightfully rejected as false.
[3] The evidence showed that the
complainant was suffering from mild mental retardation. She was
attending a school for mentally
handicapped persons. The magistrate
found that the appellant had knowledge of the fact that the
complainant was mentally retarded
at the time of the intercourse.
Once he had convicted the appellant the magistrate advised him that
his conviction falls under
s 52 of the Criminal Law Amendment Act 105
of 1997 (‘
Criminal Law Amendment Act&rsquo
;) and that the
matter would be referred to the High Court for purposes of
sentencing.
Section 52
of the
Criminal Law Amendment Act was
then
still applicable having been repealed after the date of conviction
and referral to the High Court. The matter came before
Satchwell J,
who confirmed the conviction on the basis that the complainant was
under the age of sixteen and because she was mentally
retarded and
fell within the provisions of
Part 1
of Schedule 2 to the
Criminal
Law Amendment Act. The
learned judge said that, having regard thereto
i.e. that the complainant was under the age of sixteen and that she
was mentally
disabled as contemplated in
s 1
of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act 2007
, the minimum
sentence of life would be applicable unless the court was of the
opinion that ‘
substantial
and compelling circumstances exist, which justify the imposition of a
lesser sentence’
.
After analysing the facts the court came to the conclusion that there
were no such substantial and compelling circumstances.
[4] During the sentencing stage the appellant testified that he was
30 years old, single with no children. He had a standard 7
education
and was working ‘at a boiler engineering’. A senior
probation officer of the Department of Social Development
testified
that after the incident the complainant presented with the following
behaviour:
1. she was frightened of minor things;
2. she had a loss of appetite;
3. there was a negative effect on her speech.
It was said that the complainant was adjusting well and was
progressing well with tasks given to her.
[5] After considering the
evidence Satchwell J came to the conclusion that despite being
treated as a first offender the appellant
was to be imprisoned for
life as provided for in the
Criminal Law Amendment Act. She
found no
substantial or compelling circumstances to deviate from the minimum
sentence. Satchwell J referred to what was said in
S
v Malgas
2001 (1) SACR
469
(SCA) at para 8:
‘
Instead,
it was required to approach that question conscious of the fact that
the legislature has ordained life imprisonment or
the particular
prescribed period of imprisonment as the sentence which should
ordinarily be imposed for the commission of the listed
crimes in the
specified circumstances.
’
[6] In
S
v Vilakazi
2009 (1)
SACR 552
(SCA) Nugent JA said at paras 4, 5, 6 and 15:
‘
[4] In
the case that I referred to earlier Chapman was said to have “prowled
the streets and shopping malls and in a short
period of one week he
raped three young women, who were unknown to him. He deceptively
pretended to care for them by giving them
lifts and then proceeded to
rape them callously and brutally, after threatening them with a
knife.” This court (Mahomed
CJ, Van Heerden and Olivier
JJA) described the sentence that he received as “undoubtedly
severe” but declined to interfere,
saying that it was
“determined to protect the equality, dignity and freedom of all
women… we shall show no mercy to
those who seek to invade
those rights”. For each of his crimes Chapman was
sentenced to seven years' imprisonment with
the effective sentence
being 14 years' imprisonment.
[5] Chapman was
sentenced before ss 51 and 52 of the Criminal Law Amendment Act 105
of 1997 (for convenience I will refer to those
sections as the Act)
introduced a minimum sentencing regime. But the sentence that was
imposed in that case is not unduly out of
line with the minimum
sentence that is prescribed by the Act. The Act prescribes a minimum
sentence for rape of ten years' imprisonment
in the absence of
specified aggravating circumstances (none of which appear to have
been present in that case) and multiple sentences
imposed under the
Act are capable of being served concurrently.
[6] In the
present case the appellant was convicted on one count of rape and
sentenced to life imprisonment. What accounts for
the enormous
disparity between the sentence in
Chapman
and the sentence in this case is that in this case the appellant's
victim was under the age of 16 years. The Act prescribes that
on that
account alone the ordinary minimum sentence for rape of 10 years'
imprisonment should instead be the maximum sentence that
is permitted
by our law, which is life imprisonment.
…
[15] It is clear
from the terms in which the test was framed in
Malgas
and endorsed in
Dodo
that it is incumbent upon a court in every case, before it imposes a
prescribed sentence, to assess, upon a consideration of all
the
circumstances of the particular case, whether the prescribed sentence
is indeed proportionate to the particular offence. The
Constitutional
Court
made it clear that what is meant by the “offence” in that
context (and that is the sense in which I will use the
term
throughout this judgment unless the context indicates otherwise)
“
consists
of all factors relevant to the nature and seriousness of the
criminal act itself, as well as all relevant personal and
other
circumstances relating to the offender which could have a bearing on
the seriousness of the offence and the culpability of
the offender
.”
If a court is
indeed satisfied that a lesser sentence is called for in a particular
case, thus justifying a departure from the prescribed
sentence, then
it hardly needs saying that the court is bound to impose that lesser
sentence. That was also made clear in
Malgas,
which said that the
relevant
provision in the Act
vests
the sentencing court with the power, indeed the obligation, to
consider whether the particular circumstances of the case require
a
different sentence to be imposed. And a different sentence must be
imposed if the court is satisfied that substantial and compelling
circumstances exist which “
justify”
. . . it.’
Also see para 31:
‘
On
each one of the grounds that I have referred to the court below
materially misdirected itself and the sentence that it imposed
cannot
stand, which means that we must ourselves evaluate whether life
imprisonment is indeed a proportionate sentence, in accordance
with
the approach that was laid down in Malgas.
’
[7] It is consequently also the
duty of the court to evaluate whether life imprisonment is indeed a
proportionate sentence for the
offence, the latter term which
includes all the factors set out in
Vilakazi
at para 15. The test was set out in
Malgas
at para 25 as follows:
‘
If
the sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed
sentence
unjust in that it would be disproportionate to the crime, the
criminal and the needs of society, so that an injustice
would be done
by imposing that sentence, it is entitled to impose a lesser
sentence.
’
[8] In
Vilakazi
the fact that no extraneous violence and physical injury were caused
other than the physical injury inherent to the offence, was
taken
into account, together with the little measure of the emotional
impact upon the complainant, despite her trauma, to be such
that it
should be considered whether the maximum sentence is proportionate to
the offence. I take into account that the evidences
shows that the
complainant was adjusting well after the incident. The appellant is a
30 year old person with an unblemished record
and seen together with
the fact that he was employed, it is an indication that he is not
inherently a lawless character. (See
Vilakazi
at para 58). I also agree with Satchwell J that the appellant must be
treated as a first offender by virtue of the fact that his
previous
conviction for assault is in relation to an offence that was
committed many years ago and is not related in any way to
the
behaviour for which he stood trial in this matter.
[9] I am of the view that this is
not a matter where the enquiry should only have been whether
substantial and compelling reasons
existed having regard to the
well-established factors. The enquiry should also have incorporated
that which was laid down in
Vilakazi
,
namely, whether the sentence is proportionate to the offence. If it
is not, such would unjust (see
Malgas,
supra; Monageng v S
[2009]
1 All SA 237
(SCA) at 248 para 38
)
or constitute a
substantial and compelling reason to deviate from the minimum
sentence. This aspect was not considered by the court
below and this
court is consequently at liberty to interfere with the sentence
imposed on the appellant.
[10] Applying the test laid down
in
Vilakaz
i,
I am of the view that a sentence of life imprisonment is not
proportionate to the offence. Having regard to the facts of this
matter, I am of the view, that a sentence of 18 years imprisonment
would be an appropriate sentence for the offence committed by
the
appellant.
[11] It is now trite that the
period of incarceration of an accused prior to his sentence should be
taken into account when sentence
is imposed (see
Vilakazi
at para 60) and I take into account that the appellant was in custody
for a period of 19 months whilst awaiting the finalisation
of the
trial.
[12] In all the circumstances I propose that the sentence of the
appellant be set aside and be substituted with the following:
‘The accused is sentenced to a period of 18 years imprisonment
from which nineteen months are to be deducted when calculating
the
date upon which the sentence is to expire.’
WEPENER J
JUDGE OF THE HIGH COURT
SOUTH GAUTENG
I agree, it is so ordered
CLAASSEN J
JUDGE OF THE HIGH COURT
SOUTH GAUTENG
I agree.
SALDULKER J
JUDGE OF THE HIGH COURT
SOUTH GAUTENG
COUNSEL FOR APPELLANT:
Adv.
Henzen-Du Toit
APPELLANTS ATTORNEYS:
Legal
Aid South Africa
COUNSEL FOR THE STATE:
Adv.
Khumalo
DATE OF HEARING:
10
September 2012
DATE OF JUDGMENT:
13
September 2012