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South Africa: Western Cape High Court, Cape Town
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[2010] ZAWCHC 158
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Mkwana v S (A151/2010) [2010] ZAWCHC 158 (11 June 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
:
A151/2010
DATE:
11
JUNE 2010
In
the matter between:
BONGANI
J MKWANE
Appellant
and
THE
STATE
Respondent
JUDGMENT
LE
GRANGE. J
The
appellant in this matter was convicted in the Regional Court,
Wynberg on a charge of attempted rape and sentenced to an effective
term of eight years' direct imprisonment The appellant, with leave
of the court a
quo,
now
appeals against his imposed sentence.
The
evidence relating to the conviction can briefly be summarised as
follows. The appellant and complainant were known to each
other and
consumed some alcohol together at a pub in Rondebosch. Later the
same day, the appellant and the complainant visited
a shebeen, also
in Rondebosch, where more beer was consumed.
On
their way home, whilst walking through a dark area with long grass,
the complainant fell to the ground. The appellant, instead
of
helping her. told her that he wanted to have sexual intercourse with
her. When she refused, he then attempted to pin her to
the ground in
order to rape her. The appellant then bit the complainant in the
face, on her breast and other parts of her body
She screamed for
help and a security guard came to her rescue. The appellant then
fled the scene.
The
complainant was taken to the police and later to the hospital for a
medical examination. The complainant suffered certain
open wounds as
a result of the bite marks on her face, breast and other parts of
her body
It
was argued on behalf of the appellant that the trial court
misdirected itself in overemphasising the seriousness of the offence
and the interests of society and failed to attach sufficient weight
to the appellant's personal circumstances. Furthermore, the
imposed
sentence is shockingly inappropriate and disproportionate to the
crime, the appellants personal circumstances and the
general
interests of society.
It
is well accepted in our law that a court of appeal will not
interfere with a trial court's discretion in respect of sentence,
unless the discretion of the trial court was not properly exercised
or the imposed sentence induced a sense of shock or is disturbingly
inappropriate.
The
crime the appellant committed is a very serious offence. Society
demands that when offenders are convicted of crimes, in particular
that of attempted rape, the courts should impose appropriate
sentences. The appellant was 36 years of age at the time of his
arrest He resided with his grandmother in Nyanga East and has three
children, aged 16, 12 and two years respectively. He was
employed at
a private building company in Rondebosch for four years and earned
R600,00 per week. He maintained the children in
the sum of R1 300,00
per month and is a first offender.
The
complainant was subject to a vicious and humiliating attack She was
bitten by the appellant and sustained various bite mark
injuries on
her body. Some were also in her face and her breasts. Crimes of rape
and an attempt thereto, are degrading and a
brutal invasion of the
privacy and dignity of the victim. An aggravating factor is that the
appellant showed no remorse for his
despicable conduct and persisted
with his false denials even after the conviction. The appellant
leaves this Court with little
option, but to condemn his vicious and
unprovoked attack on the complainant in the strongest terms
possible.
The
injuries the complainant suffered healed, but left certain scars on
her body and in particular on her face, which is also
an aggravating
factor. The appellant is, however, a first offender and was a
productive member of society, who had stable employment
and
supported his minor children financially. Inasmuch as society
demands that severe sentences should be imposed for these types
of
offences, the offender's personal circumstances and the need to show
mercy where necessary, should equally be taken into account
when
considering an appropriate sentence.
It
appears from the record that the magistrate, in my view, failed to
give due consideration to the appellant's personal circumstances,
in
particular the fact that he had minor children to support
financially. Having regard to all the circumstances in this matter,
I am of the view that a just and more equitable sentence would have
been to suspend a portion of the imposed sentence. I am of
the view
that a period of four years of the sentence should have been
suspended on certain conditions.
This
misdirection is, in my view, sufficient to justify this Court to
interfere with the sentence imposed by the magistrate. It
follows
that appeal should partially succeed. In the result the following
order is made
The
appeal succeeds.
The
imposed sentence of eight years imprisonment is set aside and
replaced with the following sentence.
The
accused is sentenced to
EIGHT
(8) YEARS' IMPRISONMENT
.
of which
FOUR
(4) YEARS
is
SUSPENDED
for a period of
FIVE
(5) YEARS
on condition that the accused is not convicted again of rape or
attempted rape committed during the period of suspension.
LE
GRANGE, J
I
agree.
JOUBERT,
AJ