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[2014] ZASCA 36
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Munyai v S (546/2013) [2014] ZASCA 36 (28 March 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
no
:
546/2013
Not
Reportable
In
the matter between:
WILLIAM
MUNYAI
........................................................................................
Appellant
and
THE
STATE
..................................................................................................
Respondent
Neutral
citation:
Munyai v The State
(546/2013)
[2014] ZASCA 36
(28 March
2014)
Coram:
Navsa, Theron and Petse JJA
Heard:
5 March 2014
Delivered:
28 March 2014
Summary:
Sentence - Rape – Minimum
sentence in terms of
s 51
of the
Criminal Law Amendment Act 105 of
1997
imposed by the high court – no substantial and compelling
circumstances – appeal against sentence dismissed.
ORDER
On
appeal from:
Limpopo
High
Court, Thohoyandou (Hetisani J sitting as court of first instance):
The
appeal against sentence is dismissed.
JUDGMENT
THERON
JA (Navsa and Petse JJA concurring):
[1]
The appellant stood trial in the Limpopo High Court (Hetisani J) on
one count of rape read with provisions of
Section 51(2)
of the
Criminal Law Amendment Act 105 of 1997
and on the alternative count
of contravening
s 14(1)(
a
) of the Sexual Offences Act 23 of
1957 (having unlawful carnal intercourse with a girl below the age of
16 years). The appellant
pleaded not guilty to the main count and
guilty to the alternative count. The State did not accept his plea in
respect of the alternative
count and pleas of not guilty in respect
of both counts were entered by the court.
[2]
The appellant made a number of admissions at the commencement of the
trial. He admitted that he had had sexual intercourse with
the
complainant on 17 October 2003 but that such sexual intercourse was
with the consent of the complainant. At the end of
the trial
the appellant was found guilty on the main count and sentenced to
life imprisonment. He appeals to this court against
sentence only,
with the leave of the high court.
[3]
The complainant was thirteen years at the time of the incident. She
and her family knew the appellant as they lived in the same
neighbourhood. The appellant had promised to give the complainant R1
which she was required to pay at school in respect of a funeral
fee.
He had requested that the complainant collect the money from his home
on her way to school on the morning of the incident.
Instead of
giving her the money as promised, he had sexual intercourse with her
without her consent. When the complaint’s
mother came looking
for her, the appellant hid her under a bed and threatened to kill her
if she responded to her mother’s
calls. It was only later that
the complainant was discovered on the premises.
[4]
The complainant testified that she had felt pain during the
intercourse and was bleeding profusely afterwards. The District
Surgeon, Dr Hadzhi, who examined the complainant after the incident
noted bruises on her clitoris and
labia minora
. The
labia
majora
was normal but blood stained and there were superficial
tears on the vagina. It is recorded in the medico-legal report that
the
complainant’s clothes were blood stained. The District
Surgeon’s conclusion is recorded as follows: ‘possible
evidence of vaginal penetration as evident by fresh tears [and]
bleeding with irregular hymen’.
[5]
No evidence was led by the appellant in mitigation of sentence. The
appellant’s legal representative addressed the court
from the
bar. The court was advised that the appellant had been fifty five
years old at the time and was a self-employed carpenter.
He was
separated from his wife. The court was advised that he had consumed
alcohol the night before the incident and was still
inebriated at the
time of the incident. The court was also informed that the appellant
was a ‘man of ill health’. There
was no further
clarification regarding his state of health. The appellant admitted
his previous convictions, one of which was an
undated conviction for
common assault in respect of which he paid an admission of guilt fine
in the amount of three hundred rand
and another in 1997 for assault
with intention to do grievous bodily harm in respect of which he was
sentenced to pay a fine of
three hundred rand or undergo three
months’ imprisonment. The previous convictions were not held
against him by the court
below and do not call for consideration by
this court.
[6]
On appeal, it was submitted by counsel for the appellant that the
sentence imposed was shockingly inappropriate, induced a sense
of
shock and was disproportionate to the offence. It was further
submitted that the high court had over-emphasised the interests
of
the community at the expense of the appellant’s personal
circumstances and had the high court had due regard to these
circumstances it would have concluded that they were sufficiently
compelling and substantial so as to justify a departure from
the
minimum sentence prescribed by the Legislature.
[7]
It was common cause that in terms of the provisions of
s 51
of the
Criminal Law Amendment Act, the
high court was obliged to impose the
minimum sentence of life imprisonment unless there were compelling
and substantial circumstances
justifying a departure from the
prescribed minimum sentence. In considering an appropriate sentence,
courts must be conscious that
t
he
Legislature has ordained life imprisonment as the sentence which
should
ordinarily
be imposed for the
offence
in respect of which the appellant has been convicted and should not
be departed
from
lightly and for flimsy reasons
.
[1]
[8]
No evidence was led of the impact of the rape on the complainant.
This court, has in the past, deplored the failure to lead
such
evidence during the sentencing proceedings.
[2]
Such evidence constitutes important evidence to assist the sentencing
court in arriving at an appropriate sentence. Ponnan JA in
S
v
Matyityi
,
[3]
explained the value of such evidence.
‘
By
accommodating the victim during the sentencing process the court will
be better informed before sentencing about the after-effects
of the
crime. The court will thus have at its disposal information
pertaining to both the accused and victim, and in that way hopefully
a more balanced approach to sentencing can be achieved. Absent
evidence from the victim, the court will only have half of the
information necessary to properly exercise its sentencing discretion.
It is thus important that information pertaining not just
to the
objective gravity of the offence, but also the impact of the crime on
the victim, be placed before the court. That in turn
will contribute
to the achievement of the right sense of balance and in the ultimate
analysis will enhance proportionality, rather
than harshness.
Furthermore, courts generally do not have the necessary experience to
generalise or draw conclusions about the
effects and consequences of
a rape for a rape victim.
’
Despite
the fact that no evidence was led on the effect of the rape on the
complainant, the lack of such evidence should not be
construed as an
absence of post traumatic stress.
[4]
[9]
There are a number of aggravating factors in this matter. The
appellant deceptively lured the complainant to his home with a
promise to assist her. There he took advantage of her and subjected
her to humiliating and degrading treatment.
[5]
She sustained the injuries recorded in para 4 above. In his attempts
to avoid being discovered, he threatened to kill her. He also
did not
show remorse for his actions.
[10]
The judge in the court below gave due consideration to the personal
circumstances of the appellant and correctly balanced such
circumstances against the legitimate interests of the community.
Child rape is a prevalent offence in Limpopo.
[6]
The judge recognised the duty of the court to protect vulnerable
persons, particularly young girls, and the need to send a message
to
society that offenders such as the appellant will be appropriately
punished.
[11]
In my view, the cumulative effect of the personal circumstances of
the appellant, as weighed against the aggravating factors,
do not
constitute substantial and compelling circumstances justifying a
departure from the prescribed minimum sentence. I am not
satisfied
that the imposition of the minimum sentence
would
be disproportionate to the crime, the appellant and the needs of
society so as to result in an injustice.
[12]
In the result, the appeal against sentence is dismissed.
L V THERON
JUDGE
OF APPEAL
APPEARANCES
For
Appellant: M J Manhwadu
Instructed by:
Justice Centre,
Thohoyandou
Justice
Centre, Bloemfontein
For
Respondent: R J Makhera
Instructed
by:
The Director of
Public Prosecutions, Thohoyandou
The
Director of Public Prosecutions, Bloemfontein
[1]
S
v Malgas
2001 (1) SACR 469
(SCA) paras 8 and 9.
[2]
S
v Olivier
2010
(2) SACR 178
(SCA) para 11.
[3]
S
v Matyityi
2011
(1) SACR 40
(SCA) para 17.
[4]
S
v SMM
2013
(2) SACR 292
(SCA) para 17.
[5]
S
v Chapman
[1997] ZASCA 45
;
1997
(2) SACR 3
(SCA) at 5a-b.
[6]
For
recent cases see
S
v MM
2012 (2) SACR 18
(SCA);
S
v SMM
2013 (2) SACR 292
(SCA),
S
v M
2013 JDR 2747 (SCA);
[zRPz]Thinashaka
v S
(65/2013)
[2013] ZASCA 127
(25 September 2013);
Rasirubu
v S
(651/12)
[2013] ZASCA 140
(30 September 2013).