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[2015] ZASCA 130
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Marota v The State (300/15) [2015] ZASCA 130 (28 September 2015)
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THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case no: 300/15
In the matter between:
TERRENCE MAROTA
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Marota
v The State
(300/15)
[2015] ZASCA 130
(28 September 2015)
Coram:
Lewis, Mhlantla and Petse JJA
Heard:
26 August 2015
Delivered:
28 September 2015
Summary
:
Sentence ─ imposition of ─
power
of appellate court to interfere with the exercise of discretion by
sentencing court circumscribed ─
cumulative
effect of sentence ─ not such as to warrant interference.
ORDER
On appeal from
:
Gauteng Local Division of the High
Court, Johannesburg (Du Toit AJ sitting as court of first instance):
The appeal is dismissed.
JUDGMENT
Petse JA (Lewis and
Mhlantla JJA concurring):
[1] The appellant (Mr
Terrence Marota) was charged in the regional court, Tembisa, Gauteng
with the rape and abduction of a 14 year
old girl. The charge sheet
explicitly stated that the provisions of s 51 of the Criminal
Law Amendment Act 105 of 1997 (the
minimum sentencing legislation)
applied to the count of rape.
[2] On 20 September
2004 and despite his plea of not guilty to both counts, the appellant
was convicted as charged. In consequence
the regional court stopped
the proceedings and committed the appellant to the Gauteng Local
Division of the High Court, Johannesburg
for confirmation of the
convictions and for sentencing as contemplated in s 52
[1]
of the minimum sentencing legislation.
[3] Section 52, as it
then applied, required a regional court when it has convicted an
accused person of an offence for which life
imprisonment is the
prescribed sentence to stop the proceedings and commit the accused to
a Division of the High Court having jurisdiction
for confirmation
[2]
of the conviction and for sentence.
[4] In the court
below the case served before Du Toit AJ who, having satisfied himself
that the conviction of the accused was supportable
on the evidence
led at the trial in the regional court, which he then confirmed,
proceeded to consider the question whether or
not substantial and
compelling circumstances as contemplated in s 51(3)
(a)
existed.
[5] In the event he
concluded that substantial and compelling circumstances existed that
justified a lesser sentence than the prescribed
sentence of life
imprisonment in respect of the count of rape. In reaching this
conclusion the learned judge had regard to the
following factors as
were presented to the court below. That the appellant was a first
offender and 19 years of age when the offences
were committed. That
the objective gravity of the offence was not of such a nature as to
warrant the imposition of the most severe
of sentences. That the
appellant had exhibited a sense of social responsibility in that he
cared for his grandmother whilst, at
the same time, pursuing his
studies. That the appellant had the benefit of good upbringing.
[6] As to the question of
what would be a suitable punishment the court below took into account
the personal circumstances of the
appellant; the interests of society
and the nature of the crimes of which he had been convicted.
Concerning the latter, the court
a quo said that: (a) rape
constitutes the most brutal invasion of privacy to which a woman can
be subjected; (b) as the rape involved
a child it had the effect of
scarring her both psychologically and physically; (c) that for the
complainant this was her first
sexual encounter with attendant severe
and traumatic psychological consequences; (d) the rape was
premeditated; and (e) given
the unprecedented high levels of rape in
the country long-term imprisonment was imperatively called for.
[7] The court below then
proceeded to impose a sentence of 20 years’ imprisonment for
the count of rape and three years’
imprisonment in respect of
the count of abduction, two years of which were ordered to run
concurrently with the term of 20 years’
imprisonment. Thus, the
appellant was sentenced to an effective term of 21 years’
imprisonment. The court below subsequently
granted the appellant
leave to appeal against the sentence to this court, hence the present
appeal.
[8] The complainant’s
evidence led at the trial was briefly as follows. On 31 October 2003
at about 17h00 she was walking
with her friend, Ms Chauke, on their
way home. A Toyota motor vehicle emerged and pulled up parallel to
them. The appellant, who
was a passenger in the motor vehicle, called
the complainant. She did not respond. The appellant then alighted,
called her again
and when she ignored him, he caught hold of her and
assaulted her. He was joined by the driver in assaulting the
complainant. The
complainant was forcibly bundled into the motor
vehicle, leaving her friend standing helplessly on the side of the
road. She was
then driven and dropped off at the appellant`s home
together with the appellant after which the motor vehicle drove away.
[9] The appellant
threatened to assault her if she called out for assistance. He took
her to an outbuilding at his home. There he
undressed her against her
will and, after undressing himself, he proceeded to have sexual
intercourse with her against her will.
Once he was finished he
instructed the complainant to get dressed and leave, which she then
did. On her way home she met up with
her friend in the street and
informed her about her ordeal at the hands of the appellant. On her
arrival at her home she reported
the incident to her mother. She was
then taken to the police station where she laid a charge against the
appellant. Later she was,
at the instance of the police, examined by
a Dr Bermudas.
[10] As I have already
said, the appellant was sentenced to 20 years’ imprisonment on
the rape count and three years’
imprisonment on the count of
abduction, two years of which were ordered to run concurrently with
the 20 year term of imprisonment.
[11] In this court the
sentence imposed on the appellant was assailed on several grounds. It
was argued on behalf of the appellant
that the court below gave no or
insufficient consideration to the following factors: (a) that the
appellant was under the influence
of liquor at the time of the
commission of the offences; (b) the complainant did not suffer any
bodily injuries; (c) no dangerous
weapon was used in the commission
of the offence; (d) whilst traumatised by the incident, there was no
indication that the complainant
will not recover from her ordeal; (e)
the sentence imposed on the rape count was, in any event, out of
kilter with the sentences
imposed by this court in comparable
circumstances; (f) that the whole of the sentence imposed on count
two ought to have been ordered
to run concurrently with the sentence
imposed on count 1, for the abduction was inextricably part of the
same criminal transaction
whose object was to facilitate the rape of
the complainant. I shall return to these later.
[12] The imposition
of sentence is primarily a matter of judicial discretion by a
sentencing court save where the legislature has
decreed otherwise.
This then requires that a sentencing court should have regard to,
inter alia, the peculiar facts of each case,
the nature of the crime
and the personal circumstances of the offender. (See eg
S
v Zinn
1969 (2) SA 537
(A) at 540G.)
Accordingly, a court of appeal will interfere with the exercise of
such discretion only on limited grounds.
[3]
[13] In
S
v Malgas
2001 (2) SA 1222 (SCA)
[4]
this principle was elaborated upon in these terms
(para12):
‘
A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it. To do
so would be to usurp the sentencing discretion of the trial
court. Where material misdirection by the trial court vitiates
its
exercise of that discretion, an appellate court is of course entitled
to consider the question of sentence afresh. In doing
so, it assesses
sentence as if it were a court of first instance and the sentence
imposed by the trial court has no relevance.
As it is said, an
appellate court is at large. However, even in the absence of material
misdirection, an appellate court may yet
be justified in interfering
with the sentence imposed by the trial court. It may do so when the
disparity between the sentence
of the trial court and the sentence
which the appellate court would have imposed had it been the trial
court is so marked that
it can properly be described as 'shocking',
'startling' or 'disturbingly inappropriate'.
[14] I now turn to deal, in
reverse order, with the contentions advanced on behalf of the
appellant.
Partial concurrence
[15] In the court below
both counsel were agreed that whatever sentence the court saw fit to
impose in respect of count 2 should
be ordered to run concurrently
with the sentence imposed in respect of count 1. But the court below
held a different view. It took
into account both the age of the
complainant and the prevalence of the offence and, in the exercise of
its discretion, ordered
that only two years of the three years should
run concurrently with the sentence imposed on count 1. Counsel for
the appellant,
despite readily accepting that ordering the whole of
the sentence imposed on count 2 to run concurrently with the sentence
on count
1 would make a minimal difference to the overall punishment,
were we disposed to interfere, argued that doing so would nonetheless
ameliorate the appellant`s situation. The court below motivated its
decision in ordering partial concurrence on the basis that
abduction
of young girls was prevalent.
[16] Ordinarily it is
desirable when an offender has been convicted of offences that are
inextricably linked in terms of time and
location that the cumulative
effect of the sentences imposed must be brought to the fore. (See eg
S v Schrich
2004
(1) SACR 360
(C) at 370b-c.) And the sentencing court must pay due
regard to the offender`s blameworthiness in determining the effective
sentence
to be imposed so as to ensure that such effective sentence
is not inappropriate. In
S v Mhlakaza
(386/96)
[1997] ZASCA 7
;
1997 (1) SACR 515
(SCA)
this court had occasion to consider whether on the facts of that case
the cumulative effect of the sentences imposed was
so inappropriate
that the court was permitted to substitute its discretion for that of
the trial court. There the two appellants
had been convicted of
murder, attempted robbery, possession of a firearm and possession of
a machine gun and were sentenced to
47 and 38 years’
imprisonment respectively. This court concluded that an effective
sentence of 47 years exceeded acceptable
limits.
[5]
[17] Whilst the deterrent
utility of a sentence of 21 years’ imprisonment over one of 20
years’ imprisonment is doubtful
one must, however, not lose
sight of the fact that the imposition of sentence is, as I have
already said, pre-eminently a matter
in the discretion of the
sentencing court. In the absence of a misdirection or where the
effective sentence is not disturbingly
inappropriate there would be
no basis to interfere with the exercise by the court below of its
sentencing discretion. To my mind
the difference between the
effective sentence imposed by the court below and 20 years’
imprisonment is not sufficiently striking
so as to warrant
interference. Nor can I discern anything to suggest that the court
below committed a misdirection in imposing
the effective sentence. On
the contrary the court a quo gave anxious consideration to this
aspect and furnished reasons as to what
moved it to impose the
sentence it did.
Severity of the sentence
of 20 years’ imprisonment
[18] On this score,
as I have said, counsel for the appellant placed much store, inter
alia, on decisions
[6]
of this court in support of his contention that
the sentence imposed by the court a quo was out of kilter with
sentences imposed
in those decisions. In my view, what Marais JA said
in
Malgas
,
albeit in a different context, puts paid to this argument. The
learned judge of appeal said (para 21):
‘
It
would be foolish of course, to refuse to acknowledge that there is an
abiding reality which cannot be wished away, namely, an
understandable tendency for a court to use, even if only as a
starting point, past sentencing patterns as a provisional standard
for comparison when deciding whether a prescribed sentence should be
regarded as unjust. To attempt to deny a court the right to
have any
regard whatsoever to past sentencing patterns when deciding whether a
prescribed sentence is in the circumstances of a
particular case
manifestly unjust is tantamount to expecting someone who has not been
allowed to see the colour blue to appreciate
and gauge the extent to
which the colour dark blue differs from it. As long as it is
appreciated that the mere existence of some
discrepancy between them
cannot be the sole criterion and that something more than that is
needed to justify departure, no great
harm will be done
.’
And as this court
made plain in
S v Fraser
1987
(2) SA 859 (A)
[7]
‘
. . .
it
is an idle exercise to match the colour of the case at hand and the
colours of other cases with the object of arriving at an
appropriate
sentence’
.
Ultimately each case must be decided in the light
of its peculiar facts encompassing the personal circumstances of the
convicted
person.
[8]
Effect of liquor on
appellant
[19] That the
appellant was under the influence of liquor came out only from the
complainant who said in her evidence-in-chief that
the two persons in
the vehicle were drunk and threw bottles of Hunters Dry out of the
vehicle.
[9]
The appellant himself did not testify as to his
state of sobriety at the time. Nor is there any evidence, if indeed
the appellant
had consumed liquor, as to what extent ─ if at
all ─ his mental faculties were affected by the intake of
alcohol. Consequently
this argument does not avail the appellant.
Absence of bodily
injuries
[20] That the complainant
did not suffer any bodily injuries, so the argument went, ought to
have mitigated the severity of the
sentence imposed on the appellant.
In my view this submission loses sight of the fact that apart from
physical injuries, rape invariably
results in psychological and
emotional harm to the victim with their attendant enduring effects.
Moreover, that the complainant
was deprived of her virginity in her
early teens is also a relevant factor in determining a suitable
sentence. Accordingly, that
the complainant may not have suffered
physical injuries does not, in my view, render the rape less serious.
[21] In
Director
of Public Prosecutions, Western Cape v Prins & others
2012 (2) SACR 183
(SCA) Wallis JA observed that no
judicial officer is unaware of ‘. . . the extent of sexual
violence in this country and
the way in which it deprives so many
women and children of their right to dignity and bodily integrity
and, in the case of children,
the right to be children, to grow up in
innocence and, as they grow older, to awaken to the maturity and joy
of full humanity’.
To my mind the fact that the complainant,
who was fourteen years and eleven months of age when she was raped,
was deprived of that
opportunity is a factor that aggravated the
seriousness of the rape.
[22] In the result the
appeal cannot succeed. Accordingly the following order is made.
The appeal is dismissed.
_________________
X M Petse
Judge of Appeal
APPEARANCES:
For
Appellant:
W A Karam
Instructed
by:
Justice
Centre, Johannesburg
Justice
Centre, Bloemfontein
For
Respondent:
A Stellenberg
Instructed
by:
The Director
of Public Prosecutions, Johannesburg
The Director
Public Prosecutions, Bloemfontein
[1]
Since repealed by
s 52
of the
Criminal Law
(Sentencing) Amendment Act 38 of 2007
.
[2]
Section 52(2)(b)
, inter alia, required a high
court to which an accused is committed for sentence to make a formal
finding of guilt before sentencing
the accused unless it is not
satisfied that the accused is guilty of the offence of which he or
she has been committed for sentence.
[3]
S v Giannoulis
1975
(4) SA 867
(A) at 868G-H,
S v Kgosimore
1999 (2) SACR 238
(SCA) para 10.
[4]
Also reported in [2001] 3 ALL SA 220; 2001 (1)
SACR 469 (SA).
[5]
At 524e-f.
[6]
S v Abrahams
2002
(1) SACR 116
(SCA),
S v Mahomotsa
(85/2001)
[2002] ZASCA 64
;
2002 (2) SACR 435
(SCA),
S v Sikhipha
(262/05)
[2006] ZASCA 73
;
2006 (2) SACR 439
(SCA),
S
v Nkomo
(160/00)
[2006] ZASCA 139
;
2007 (2) SACR 198
(SCA),
S v Vilakazi
(576/07) [2008] ZASCA 87; 2009 (1) SACR 552
(SCA).
[7]
At 863C-D.
[8]
S v Toms;
S v
Bruce
[1990] ZASCA 38
;
1990 (2) SA 802
(A) at 806H-I.
[9]
My free translation from Afrikaans ‘Die
twee mense wat in die voertuig gewees het was dronk en agterna hulle
het bottels
van Hunters Dry uit die voertuig gegooi. . . .’