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[2014] ZASCA 145
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Netshivhodza v S (962/2013) [2014] ZASCA 145 (26 September 2014)
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 962/2013
DATE:
26 SEPTEMBER 2014
In
the matter between:
NETSHIVHODZA
NDIVHUWO CALVIN
...................
APPELLANT
And
THE
STATE
............................................................
RESPONDENT
Neutral
citation:
Calvin v The State
(962/2013)
[2014] ZASCA 145
(26 September 2014)
Coram:
Cachalia and Willis JJA and Schoeman AJA
Heard:
9 September 2014
Delivered:
26 September 2014
Summary:
rape – complainant 6 years old –
life imprisonment – youthfulness of the appellant –
whether substantial
and compelling circumstance justifying lesser
sentence
ORDER
On
appeal from:
Limpopo High Court,
Thohoyandou (Lukoto J sitting as court of first instance):
1
The appeal is upheld.
2
The sentence imposed upon the appellant is set aside and the
following sentence is substituted:
‘
The
accused is sentenced to undergo 20 years’ imprisonment.’
3
The sentence is antedated to 5 October 2005.
JUDGMENT
Schoeman
AJA
(Cachalia and Willis JJA
concurring)
[1]
The appellant was charged with the rape of a six year old girl in the
Limpopo High Court. This crime was committed on 10 March
2005 in
Thohoyandou. The appellant pleaded not guilty on 4 October 2005, but
was subsequently convicted on 5 October 2005 at the
conclusion of the
trial in the high court. The provisions of s 51 of the Criminal Law
Amendment Act 105 of 1997 (the Act) read
with Part 1 of Schedule 2 of
the Act were applicable, as the victim was under the age of sixteen
years. The appellant was sentenced
to undergo life imprisonment on
the same day. He appeals against his sentence with leave of the high
court (Makhafola J).
[2] The evidence
established that on 10 March 2005 the appellant offered the
complainant sweets when she was on her way from school.
She refused
the offer as she was afraid that the sweets might be poisoned. The
appellant then grabbed her and dragged her into
a nearby orchard
where he undressed and raped her. A young man was drawn to the scene
by the complainant’s cries. When the
appellant saw the young
man, he got off from the victim and left. The appellant handed
himself over to the police the next day
when he heard the police were
looking for him.
[3] The salient
grounds of appeal are that: (a) the sentence of life imprisonment is
shockingly inappropriate and it induces a sense
of shock; and (b) the
court below should have found that there were substantial and
compelling circumstances present that justified
a deviation from the
minimum sentence.
The
judgment on sentence
[4] The appellant
did not testify during the trial. No evidence was led during
the sentence proceedings and the appellant’s
personal
circumstances were placed on record from the bar. Furthermore, no
pre-sentence report was obtained in respect of the appellant
nor was
an assessment made of the impact of the crime on the complainant or
her family.
[5] The court below
did not refer to the provisions of the Act at all in the judgment on
sentence. There was no investigation to
determine whether or not
substantial and compelling circumstances were present to deviate from
the prescribed minimum sentence
of life imprisonment, nor was it
established whether the prescribed sentence was proportionate to the
particular offence.
[6] In the judgment
on sentence the trial court stated that the following personal
circumstances were placed on record: ‘.
. . your age, your
social standing at home, the number of people with whom you stay,
your own number in that family hierarchy,
what you do with yourself
and how you help to keep the family alive’. This was the
only time that the appellant or
his circumstances were mentioned in
the judgment on sentence.
The
legal position
[7]
In terms of
s 274(1)
of the
Criminal Procedure Act 51 of 1977
, ‘a
court may, before passing sentence, receive such evidence as it
thinks fit in order to inform itself as to the proper
sentence to be
passed’. This court has in the past stressed the
importance of placing as much evidence before the court
as possible
in respect of the perpetrator, the victim and the circumstances
surrounding the commission of the offence.
[1]
If
the defence and the prosecution fail to adduce such evidence, the
court is obliged to take steps to receive such evidence in
order to
determine whether there are substantial and compelling circumstances
present.
[8]
This court in
S
v Malgas
[2]
set
out the approach to be followed when sentencing an accused in terms
of s 51 of the Act. It was established that the usual, traditional
factors that were taken into consideration when imposing sentence are
still to be taken into account in determining whether there
are
substantial and compelling circumstances present. Furthermore, if the
sentencing court is satisfied that the circumstances
of the case are
such that the prescribed sentence would be unjust as it would be
disproportionate to the crime, the criminal and
the needs of society,
it is entitled to impose a lesser sentence. The minimum sentence has
been set as a benchmark prescribing
the sentence to be ordinarily
imposed for specific crimes and should not be departed from for
superficial reasons.
[9]
In
S
v Vilakazi
[3]
it
was set out that the duty of a sentencing court is inter alia to
establish whether the prescribed sentence is indeed proportionate
to
the particular offence, having taken into consideration all the
circumstances. Nugent JA set out this duty as follows:
‘
It
is clear from the terms in which the test was framed in
Malgas
and endorsed in
Dodo
[
S v Dodo
[2001] ZACC 16
;
2001
(3) SA 382
(CC)] 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”.’
It is clear that the
trial court failed to approach sentence in this way and thereby
misdirected itself.
On
appeal
[10]
The judgment in the court below did not mention all the facts that
were submitted from the bar. These omitted facts are: the
appellant
had just turned twenty when the crime was committed; he suffers from
asthma; he has no relevant previous convictions
and should therefore
be considered a first offender; and he had been in custody as an
awaiting trial prisoner for close on seven
months before the trial
commenced.
[11]
As stated earlier, in this instance there was no enquiry to determine
whether substantial and compelling circumstances were
present and
there was no finding that those factors were absent. The court below
furthermore failed to consider whether the prescribed
sentence was
proportional to the offence.
I am of
the view that the trial court had insufficient information before it
to properly assess, prior to passing sentence, what
a suitable
sentence should be taking into consideration all the relevant
factors. It is not apparent what factors the trial court
in fact took
into account when passing sentence.
[12] Ordinarily the
matter would be remitted to the trial court to gather all the
necessary information to enable it to sentence
the appellant afresh.
Due to the fact that the appellant’s case was finalised nine
years ago, it would not be feasible to
obtain a pre-sentence report
at this time. Similarly an impact study into the circumstances
of the complainant might also
not render an accurate reflection of
her position. We have also been informed from the bar that the
trial judge had passed
away, although this is not a bar to remittal
in view of the provisions of
s 275(2)
of the
Criminal Procedure Act.
In
the interests of justice it would be appropriate to sentence the
appellant with the limited information at our disposal at this
stage. This approach was accepted by both counsel for the State
and the appellant.
[13]
In
S
v Mabuza & others
[4]
Cachalia
JA said the following when discussing the position of youthful
offenders who have attained the age of 18 years in the light
of s
51(2) of the Act:
‘
.
. . . So while youthfulness is, in the case of juveniles who have
attained the age of 18, no longer per se a substantial and compelling
factor justifying a departure from the prescribed sentence, it often
will be, particularly when other factors are present. A court
cannot,
therefore, lawfully discharge its sentencing function by disregarding
the youthfulness of an offender in deciding
on an appropriate
sentence, especially when imposing a sentence of life imprisonment,
for in doing so it would deny the youthful
offender the human dignity
to be considered capable of redemption.
’
[14]
In
S
v Matyityi
[5]
Ponnan
JA said the following when dealing with the ‘relative
youthfulness’ of an appellant.
‘
The
question, in the final analysis, is whether the offender’s
immaturity, lack of experience, indiscretion and susceptibility
to
being influenced by others reduce his blameworthiness. Thus whilst
someone under the age of 18 years is to be regarded as naturally
immature the same does not hold true for an adult. In my view a
person of 20 years or more must show by acceptable evidence
that he was immature to such an extent that his immaturity can
operate as a mitigating factor.
’
[15] The aspect of
the appellant’s youthfulness was not explored to determine the
degree of his maturity and the influence,
or lack thereof, of his
family and home environment and in that way to assess his moral
culpability. It was clear however that
the appellant did not live the
life of an adult: he lived at home, the income from his temporary
work of washing cars at a local
school was ploughed back into his
large family and was not used to support himself or any dependants.
This sense of obligation
might also be indicative that the appellant
is a useful member of society that fulfils his obligations to his
family and thereby
to society as a whole.
[16] The appellant
is young and there exists a real possibility of rehabilitation. There
has been no other indication that he is
a recidivist without hope of
becoming a useful member of society. He indicated through his legal
representative that he will not
place himself in a similar position
again.
[17] The rape of a
girl of six years is always a very serious crime. The fact that
an impact report regarding the effect the
rape had on her was not
obtained, does not detract from the severity of the crime and the
fact that it can be accepted that the
complainant has suffered
psychological harm. But then it must also be taken into account that
there were no other physical injuries
to the victim apart from a
bruise on the labia minora and a partial tear of the hymen with a bit
of blood next to the tear. It
is fortuitous that the rape was
interrupted otherwise her injuries might have been much more serious
and the psychological harm
might have had a more severe impact if the
attack was prolonged.
[18]
In
Rammoko
v Director of Public Prosecutions
[6]
Mpati JA stated:
‘
Life
imprisonment is the heaviest sentence a person can be legally obliged
to serve. Accordingly, where s 51(1) applies, an accused
must not be
subjected to the risk that substantial and compelling circumstances
are, on inadequate evidence, held to be absent.’
[19]
Furthermore, in
S
v Mahomotsa
[7]
it
was set out that there are bound to be different degrees of
seriousness of rape
even
in cases where life imprisonment is the prescribed minimum sentence
in terms of the Act. It is the duty of the court to consider
all
those factors before it imposes sentence
.
[20] The appellant
is considered to be a first offender and was in custody for seven
months before being sentenced. There was no
gratuitous violence in
addition to the rape. The aggravating factors that are taken into
account are the age of the complainant,
the fact that the appellant
tried to entice her by offering her sweets and chips and when that
did not work, he grabbed and dragged
her into the orchard whereupon
he raped her. It must have been a terrifying experience as is evident
from her screams and the fact
that the complainant distrusted the
appellant even before he raped her. The appellant violated a
young innocent girl and
invaded her person without regard to her
privacy, dignity and bodily integrity.
[21]
However, it should be remembered that ‘. . . Custodial
sentences are not merely numbers. And familiarity with the sentence
of life imprisonment must never blunt one to the fact that its
consequences are profound’.
[8]
I
am of the view that a severe sentence is appropriate, taking into
consideration all the circumstances of the offence. But the
youthfulness of the appellant as a first offender, the time he has
spent in custody prior to being sentenced and the possibility
of
rehabilitation are of paramount importance when assessing the
proportionality of the sentence to the offence.
[22] Life
imprisonment in my view would be disproportionately harsh in the
circumstances.
[23] In the result
the following order is made:
1
The appeal is upheld.
2
The sentence imposed upon the appellant is set aside and the
following sentence is substituted:
‘
The
accused is sentenced to undergo 20 years’ imprisonment.’
3
The sentence is antedated to 5 October 2005.
I
Schoeman
Acting
Judge of Appeal
Appearances:
For
the Appellant: A L Thomu
Instructed
by:
Thohoyandou
Justice Centre, Thohoyandou
Bloemfontein
Justice Centre, Bloemfontein
For
the Respondent: A I S Poodhun
Instructed
by:
The
Director of Public Prosecutions,
Limpopo
High Court, Thohoyandou
The
Director of Public Prosecutions,
Bloemfontein
[1]
S
v Olivier
2010
(2) SACR 178
(SCA) para 8.
[2]
S
v Malgas
2001
(2) SA 1222
(SCA) para 25.
[3]
S
v Vilakazi
2012
(6) SA 353
(SCA) para 15.
[4]
S
v Mabuza & others
2009 (2) SACR 435
(SCA) para 23.
[5]
S
v Matyityi
2011
(1) SACR 40
(SCA) para 14.
[6]
Rammoko
v Director of Public Prosecutions
2003
(1) SACR 200
(SCA) para 13.
[7]
S
v Mahomotsa
2002
(2) SACR 435
(SCA).
[8]
Vilakazi
para
21.