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[2010] ZAWCHC 430
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Bandisa v S (A83/2010) [2010] ZAWCHC 430 (28 July 2010)
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
CASE
NUMBER:A83/2010
DATE:
28 JULY 2010
In the matter between:
IVAN
BANDISA
…..............................................................................
Appellant
and
THE
STATE
…................................................................................
Respondent
JUDGMENT
ZONDI,
J
:
The appellant, who at
the time of the commission of the offences, was 15 years seven
months old, appeared together with his co-accused
in the George
Regional Court on 19 August 2002, facing two charges of rape and
robbery. With regard to the first charge it was
alleged by the State
that on or about 1 November 1998 and at or near N2 Highway,
Pacaltsdorp, he raped a young girl of 13 years
old. As regards the
second charge, it was alleged by the State that at the same time and
place, he robbed her of an unknown amount
of cash and a gold ring.
The
appellant, who was legally represented at the trial, pleaded not
guilty to the charges, but was convicted. Upon conviction,
the
regional court referred the appellant to this Court for sentence, as
the charge of rape was allegedly subject to the provision
of section
51 of Act 105 of 1997 (the Act). The appellant appeared before
Van
Zyl
,
J for sentence, who, on 10 March 2005, confirmed the appellant's
conviction and sentenced him to 15 years imprisonment. The
appeal
against sentence is before this Court, with the leave of this court
granted by
Van
Reenen
,
J on 15 October 2009.
The
attack on sentence is based on three grounds. It is submitted by the
appellant that the court a
quo
materially
misdirected itself, firstly by applying the provision of Act 105 of
1997 in respect of the appellant, who was 15 years
old at the time
of the commission of the offences. Secondly, by attaching too much
weight to the gravity of the crime and thirdly,
by failing to take
any account of the period that the appellant had already spent in
custody awaiting trial.
The evidence which forms
the basis of the appellant's conviction and sentence is to the
following effect. On the day in question,
the complainant and her
cousin, one Jaco Rabie, were on their way home when they were
suddenly confronted by the appellant and
two other suspects near N2
Highway, Pacaltsdorp. To get home, they had to walk in a footpath
which leads through a forest. They
were confronted while walking as
aforesaid. The two suspects were armed with knives. The appellant,
together with the two suspects,
robbed the complainant of her cash
and a ring before pinning her down to the ground. Her pants were
pulled down and the appellant
and his other suspects, raped her in
turns.
The complainant cried
for help, but all in vain. When she arrived home she related her
ordeal to her mother, who immediately telephoned
the police. The
police collected the complainant and Jaco from her home and arranged
for her to be seen by a doctor. At the time
of the incident, the
complainant was doing Grade 8. The complainant was emotionally
traumatised by the ordeal. She struggled
to concentrate in class and
as a result thereof, she failed Grade 8. The trauma which the
complainant endured appears from the
impact assessment report
compiled by a social worker on 23 September 2004, some six years
after the incident. It is indicated
in the report that she had not
put the experience behind her, it was still haunting her.
According to the
psychological report compiled in respect of the appellant on 13
December 2004, at the time of the commission
of the offences, the
appellant was a 15 year old Grade 8 learner and was a first
offender.
The
question is whether the court a
quo
was
correct in sentencing the appellant to 15 years imprisonment in
accordance with the provision of section 51 of the Act, having
regard to the fact that he was about 15 years old at the time of the
commission of the offence.
It is correct that
punishment is pre-eminently a matter for the discretion of the trial
court and an appeal court will not readily
interfere with the
exercise of that discretion in the absence of material misdirection.
In
my view, there are two bases upon which the court a
quo
misdirected
itself in this matter. Firstly, it erred in finding that the
provision of section 51(1) of the Act, was applicable
to the charge
of which the appellant was convicted. At the time of the commission
of the offence, the appellant was 15 years
old and section 51(6) of
the Act specifically provides that provision of the Act does not
apply in respect of an accused person
who is under the age of 16
years at the time of the commission of an offence, contemplated in
section 51(1) or (2). The court
a
quo
accordingly
erred in proceeding to sentence the appellant as if the provisions
of section 51 of Act 105 of 1997 were applicable.
The
other basis upon which the court a
quo
misdirected
itself, is by failing to give effect to the provisions of section
28(1)(g) of the Constitution, in sentencing the
appellant, who was a
juvenile offender. This sections provides that every child has the
right not to be detained except as a
measure of last resort, in
which case he or she may be detained only for the shortest
appropriate of time and has the right to
be kept separately from
detained persons over the age of 18 years and treated in a manner
and kept in conditions that take account
of his or her age.
Since
the adoption of the Constitution, the principles of sentencing,
which had until then underpinned the traditional approach
regarding
the sentencing of youthful offenders, needed to be adapted in order
to give effect to the sentencing regime encompassed
in the
Constitution, more particularly the provisions of section 28, which
have their origin in the international instrument
enumerated in
S
v Nkosi
2002(1)
SACR 135 (W), paragraph 13 and
S
v Brandt
2005(2)
ALL SA 1 (SCA) at paragraphs 15 and 18; and
The
Director of Public Prosecution KwaZulu Natal v P
2006(3)
SA 515 (SCA) at para 15. In the last mentioned case,
Mthivane
,
JA at paragraph 18, came to the conclusion, on the basis of the
provision of section 28(1)(g) of the Constitution and international
instruments, that the ambit and scope of sentencing as regards
juvenile offenders, require to be widened in order to give effect
to
the principles that juvenile offenders "are not to be detained
except as a measure of last resort" and that if incarceration
is unavoidable, it should be "only for the shortest appropriate
period of time" and that a child's best interests are
of
paramount importance in any matter concerning him or her.
Ponnan
,
AJA, as he then was in
Brandt
's
case, at paragraphs 19 and 20, held that in the sentencing of
juvenile offenders, presiding officers should be guided by certain
principles, including the principle of proportionality, the best
interest of the child and the least possible restrictive deprivation
of his or her liberty, and then only as a matter of last resort and
for the shortest possible period of time.
Sachs
,
J, in
S
v M (Centre for Child Law and
amicus
curiae)
2007(2)
SACR 539 (CC) at paragraph 33, came to the conclusion that the
requirements of the Constitution as regards the sentencing
of
children necessitate "a degree of change in judicial mindset"
directed at the paying of focussed and informed attention
to the
interests of the child at appropriate moments in the sentencing
process with the object of ensuring that judicial officers
are in a
position to adequately balance all the varied interest that are all
involved.
It
is clear to me that the court a
quo
did
not pay attention to these principles when it sentenced the
appellant and this omission constituted material misdirection.
In
light of this background, I am of the view that this Court is
accordingly entitled to interfere with the sentence, because
of the
instances of misdirection I have pointed out.
In
the result the sentence of 15 years imprisonment imposed by the
court a
quo
is
set aside. The question is what sentence will be appropriate for a
15 year old boy who has been convicted of rape of a 13 year
old
girl. There is no doubt in mind that the offence of which the
appellant has been convicted is very serious and must be treated
as
such. As correctly pointed out by
Mthiyane
,
JA in
The
Director of Public Prosecution KwaZulu Natal v P
supra,
the Constitution and the international instruments do not forbid
incarceration of children in certain circumstances. They
may be
imprisoned for serious offences, but the Constitution requires that
they be detained only for a shorter period of time
and that they be
kept separately from detained persons over the age of 18 years.
The imprisonment
sentence is called for in this case as the evidence reveals that the
appellant was part of a group who gang raped
the complainant. She
was threatened with knives and her cousin, who accompanied her, was
held hostage by two other suspects while
the appellant raped her.
The appellant did not show at all any respect for the complainant's
rights. He treated her with disdain.
This Court was urged by counsel
for the appellant to impose a sentence in terms of section
276(1)(h), or alternatively section
276(1 )(i) of the
Criminal
Procedure Act 51 of 1977
.
In
my view a correctional supervision sentence is not appropriate in
this matter, as it is only appropriate for an offence for
which
punishment without removal from the community is appropriate. See in
this regard
S
v Ingram
1995(1)
SACR 1 (A), paragraph 9E-F. In terms of
section 276A(1)
of the
Criminal Procedure Act, the
usual maximum period for correctional
supervision is three years or five years in the case of a conviction
for an offence under
the
Criminal Law (Sexual Offences and Related
Matters), Amendment Act 32 of 2007
. Similarly, a sentence in terms
of
section 276(1)(i)
is inappropriate, as a long term custodial
sentence is called for in this matter.
In
my view, having regard to the personal circumstances of the
appellant, the interest of society and serious nature of the
offence, long term imprisonment coupled with a suspended sentence is
called for in this matter. In the result I would sentence
the
appellant to ten years imprisonment and suspend part of the sentence
to deter the appellant from committing a similar offence.
This type
of sentence will also ensure the rehabilitation of the appellant and
his reintegration into his community and family.
The sentence
imposed by the court a
quo
does
not promote the rehabilitation and reintegration of the appellant
into the community.
It
is correct that society needs to be protected from violent crimes
such as rape, but clearly the interest of society cannot
be served
by disregarding the interest of the appellant, who is a juvenile
offender, and a misguided form of punishment might
easily result in
a person with a distorted personality, being eventually returned
into society. Accordingly the appellant's sentence
of 15 years
imprisonment is set aside and is substituted with a sentence of
TEN
(10) YEARS IMPRISONMENT
.
FIVE
(5) YEARS
of
which are
SUSPENDED
for
FIVE
(5) YEARS
on
condition that the appellant is not convicted of rape committed
during the period of suspension.
ZONDI,
J
DAVIS,
J:
I
agree
DAVIS,
J
DESAI,
J
:
I agree and the appellant's conviction is confirmed. The sentence is
set aside and substituted with the sentence indicated by
my Brother.
DESAI,
J