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[2010] ZAWCHC 508
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James v S (A227/10) [2010] ZAWCHC 508 (22 October 2010)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NO: A227/10
In
the matter between:
H.
JAMES
…................................................................................................
Appellant
and
THE
STATE
….........................................................................................
Respondent
JUDGMENT DELIVERED ON
22 OCTOBER 2010
HENNEY, AJ:
[1]
The Appellant was arraigned in the Regional Court sitting at Mossel
Bay on 12 August 2008 on the following charges:
1)
Housebreaking with the intent to rob and robbery;
2)
Rape;
3)
Kidnapping;
4)
Robbery with aggravating circumstances;
5)
Attempted murder.
On
14 August 2009 he was convicted on the 1
st
,
2
nd
and
5
th
charges
and acquitted on charges 3 and 4.
On
the housebreaking with the intent to rob and robbery and attempted to
murder charges, he was sentenced to 4 years imprisonment
after the
two charges were taken together for the purpose of sentence.
The
Appellant was sentenced to 20 years imprisonment on the rape charge.
It was ordered that the sentence of 4 years in respect
of the
housebreaking with intent to rob and robbery and attempted murder run
concurrently with the sentence of 20 years imposed
on the rape
charge.
[2]
The Appellant now appeals against his convictions and sentences after
successfully petitioning this Court.
[3]
The Appellant's main ground of appeal on the convictions is that the
court a
quo
had
misdirected itself in accepting the evidence of the complainant, a
single witness without reservation. In amplification of that,
the
appellant avers that,
i)
the
evidence of the complainant was unreliable;
ii)
she
did not have a good recollection of the events on the night in
question
and;
iii)
there
was a material discrepancy between her viva voce evidence in
court
and the statement she made to the police shortly after the
incident.
[4]
A further ground of appeal was that the DNA evidence does not
implicate the accused in the commission of the rape.
[5]
In respect of the attempted murder charge, the appellant submits that
the Court a
quo
misdirected
itself in finding the appellant guilty of attempted murder based on
the doctrine of common purpose.
On
sentence, the Appellant submits that the effective sentence of 20
years imprisonment induces a sense of shock and the trial magistrate
failed to exercise his discretion properly.
[6]
The State's principal witness in this matter is the complainant, (an
adult female), 7 other witnesses also testified in the
State's case.
Among these relevant to the appeal are the investigation officer,
Inspector Rhode, Dr Cenge, the medical doctor who
examined the
complainant and Captain William Koenze, the senior forensic analyst.
The Appellant testified in his own defence and
called no further
witnesses.
[7]
The following seems to be common cause:
(a)
during the night of 1 February 2006, a group of people, including
accused no.2 Jonas Jantjies and one known as Ricardo Muller,
alias
"handlanger", broke into the house of the complainant while
sleeping, with the intention to rob her. They indeed
robbed her of R2
060,00, 1 x kodak camera, one pair of binoculars, jewellery and a
jacket.
(b)
the complainant was raped by more than one person. Accused no.2, and
Ricardo Muller pleaded guilty to these charges in a different
Court.
[8]
It is not in dispute that the appellant was present whilst the
complainant was raped.
[9]
The evidence of the complainant relating to the appellant's
involvement, briefly stated, is the following: she woke up when
becoming aware that someone was in her room. She immediately got up.
She was pushed back onto her bed. Someone started to talk
to her and
she recognised the voice of the appellant. Thereafter Ricardo Muller
came to sit on top of her and she was threatened
with a knife and her
panties was pulled down. She was then hit in the face about 4 times
by the appellant who also threatened to
kill her with a knife. She
did not resist or fight back at that stage.
Ricardo
Muller then attempted to rape her, but could not penetrate her,
because of the position in which she was laying. During
this time,
the appellant was still in the bedroom. Ricardo Muller became
frustrated and requested the appellant to take over. Appellant
then
approached her, and with a knife, opened his trousers he proceeded to
rape her. During this time, accused no.2 came into the
room and made
a gesture as if he was going to stab the appellant. According to her
evidence, the appellant raped her for about
20 minutes. She also gave
a detailed explanation what she meant in her police statement that
the appellant attempted to rape her.
Her explanation was that the
appellant did not penetrate her fully, due to the fact that she was
lying flat on her back. She resisted.
This made it difficult for him
to penetrate her fully. The size of his sexual organ was also unknown
to her. As far as she recalls,
the appellant did not have an
ejaculation. He then stopped out of frustration. Thereafter Ricardo
Muller came back, who then proceeded
to rape her. It was during this
time that accused no.2 came into the room and put a belt around her
neck and choked her. At that
stage she was not aware of the
whereabouts of the appellant. After she was raped by Ricardo Muller,
she cannot remember whether
she was raped by accused no.2. She also
had difficulty in remembering everything that happened. She had
sustained several injuries
in the neck and face area as a result of
the assault by the appellant and Ricardo Muller. She sustained
further injuries to her
chest and breast area and to her lower jaw
and had several bruises on her thighs as a result of the rape.
She
further testified that Ricardo Muller raped her and she was assaulted
by accused no.2. The appellant did nothing to persuade
them to leave
her.
She
was later forced into her bakkie by Ricardo Muller and accused no.2,
who drove off with her. The appellant however stayed behind.
She
thereafter managed to escape when she was left alone with accused
no.2, whilst Ricardo Muller drove off to a garage, and managed
to get
help at a house nearby. The police was called. She was then taken to
a hospital and was medically examined by Dr Cenge.
[10]
The investigating officer Rhode testified the complainant mentioned
to him that that she was raped and there was also an attempt
to rape
her. He was also responsible for the collection of all the forensic
evidence from the medical doctor and those of the various
accuseds'.
He took a statement from the complainant. In cross-examination, he
testified that the complainant explained to him that
the appellant
had attempted to have sexual intercourse with her, but could not
fully penetrate her. He questioned her and wanted
to know what she
understood by this. According to him, the appellant could not fully
penetrate her.
[11]
Dr Cenge, examined the complainant after the incident. The
examination revealed extensive bruises on both sides of the neck
which is consistent with strangulation. There were also bruises in
the chest area. The complainant's right eye was swollen. She
had a
bruised lower lip and was unable to close her jaw. She had many small
bruises in her inner thighs and injuries in her vaginal
area. The
injuries to the vaginal area are consistent with the allegation that
she was raped.
[12]
Captain Koenze, the senior forensic analyst, testimony is relevant to
issues raised by the appellant. He received 6 samples
for the
examination of DNA. These are:
(a)
a victim swab vestibule;
(b)
a sample of the panties of complainant;
(c)
a control sample from the victim - complainant in this matter;
(d)
a control sample of blood drawn from the appellant;
(e)
a control sample of blood drawn from Thomas Jantjies (accused no.2);
(f)
a control sample of blood drawn from Ricardo Muller ("handlanger")
The
DNA of Ricardo Muller could be read in the sample taken from the
vestibule of the complainant. There was a mixture of DNA of
various
persons found on the complainant's panty. The DNA of accused no.2
could also be read into the genetic material deposited
onto the
panties. No DNA of the appellant could conclusively be read in any of
the samples connected to the complainant.
[13]
The appellant's version initially, was that although he accompanied
Ricardo Muller to the house of the complainant, he was
never involved
in the commission of any crime at the place of the complainant. He
later conceded that he participated in breaking
into the house of the
complainant and he wanted to take something from the house. He,
however, denies that he had assaulted or
raped the complainant.
[14]
On a conspectus of the evidence in this matter, I am in agreement
with the findings of the trial magistrate that the complainant
was a
reliable and credible witness.
She
was absolutely clear in her mind as to the role the appellant played
during the ordeal. She could clearly distinguish what his
actions
were and that of his other assailants, due to the fact that she knew
him better than the other assailants. She also had
a discussion with
him and requested him to help her. The contention that she could not
clearly recollect what role the appellant
the appellant played is
without substance. The
fact that she
could not clearly remember whether accused no2. Had raped
her
does not mean that she cannot recollect the role the appellant
played. The
DNA
evidence
that accused no
.2
and
Ricardo Muller deposit genetic material on her panties and vestibule
serves to strengthen her version, despite her evidence.
that
she cannot recall whether accused no.
2
raped
her.
The
complainant also gave a satisfactory explanation what she meant in
her police statement that the appellant attempted to rape
her. it is
clear from her explanation that she never meant to say that there was
an attempt by the accused in strict legal sense.
I am therefore
satisfied that there was no intent discrepancy in the version of the
complainant.
[15]
The
fact that no
DNA
evidence
of the appellant was
found
does not assist
the
appellant. The complainant clearly stated that the appellant did not
deposit any semen and became frustrated and stopped raping
her. This
fact in any event does not detract from the veracity of the evidence
in the light of her version.
[16]
The
trial magistrate, in my view correctly rejected the evidence of the
appellant as false and not reasonably possibly true. A difficulty
with appellant' case is that he lodged an appeal on the first charges
of housebreaking with the intent to rob and robbery. He conceded
in
his evidence in the court a qou after initially denying, that he
actively participated in the housebreaking. This evidence clearly
demonstrate that he was aware of the intention of the other
perpetrators. The evidence of the complainant is also overwhelming
that he assaulted and raped her whilst items were stolen from her
house.
[17]
For these reasons stated, it follows that the appeal against the
conviction on count 1 and count 2 cannot succeed.
[18]
Insofar as the fifth count is concerned, I am inclined to agree with
the contention of the appellant's counsel that his conviction
on the
count of attempted murder based on the principle of common purpose
cannot be sustained.
The
only evidence of any violence committed by the appellant was during
the rape of the complainant.
The
trial magistrate overreached and stretched the facts too far by
finding the appellant had actively associated himself with the
other
perpetrators especially accused no.2, to form a common purpose. There
is also no evidence to find or infer that there was
intention to
murder the complainant.
[19]
The imposition on appropriate sentence is a matter falling solely
within the discretion of the trial court. The court of appeal
will
only interfere where such discretion was not properly or judiciously
exercised. This point was once again clearly stated in
State v Malgas
2001(1) SACR 469 HHA at 478 D - E.
"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
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'."
[20]
The appellant at the time of committing these offences was 32 years
of age. He lived together with his partner for 7 years.
He is the
father of two children. He worked as a contractor who does paint work
and earn a wage, the amount of which is unknown.
[21]
After the rape and robbery inside the house, the appellant actively
disassociated himself from the further actions of the other
two
persons.
He
did not want to participate further when the complainant was forced
into the bakkie when the other two assailants drove off with
her. At
that stage it seems he really became concerned that the complainant
might be further harmed and feared the worst, that
she might even be
killed. He was so concerned that he immediately with the help of a
telephone of a friend contacted the police,
he thereafter went to
look for the complainant and the other two assailants with the
police.
This is a factor that should have been given more weight and
attention, by the court a
quo.
[22]
There
was also no distinction between the sentence imposed for the rape
charge between the appellant and accused no.2. Both were
sentenced
to 20 years imprisonment. This notwithstanding the fact that accused
no.2 had two previous convictions for rape.
[23]
In my view, the sentence imposed on the appellant is
disproportionate to the crime, the seriousness of the offence and
the appellant's personal circumstances.
[24]
The trial court, quite correctly deviated from the prescribed
minimum sentence of life imprisonment, but should have deviated
to
the extent that was fair and just to the appellant. Having regard to
his particular circumstances.
[25]
In the result, I am of the view, that the sentence of 4 years with
regards to count 1 having regard to his previous convictions,
is a
proper one.
[26]
On count 2, having regard to what was said, earlier on, I am of the
view that a sentence of fifteen (15) years imprisonment
is a more
just and equitable sentence.
[27]
In the result, I would propose the following order:
(1)
The
appeal against the conviction on count 1 and 2 is dismissed.
The
appeal against the conviction and sentence on count 5 succeeds.
(2)
The
appeal against sentence succeeds. The imposed sentence is
set
aside and substituted with the following:
Count
1: 4 years imprisonment
Count
2: 15 years imprisonment
It
is ordered that the sentence on count 1 run concurrently with count
2.
(3)
It is ordered that in terms of Section 282 of Act 51 of 1977
(Criminal Procedure Act) that these sentences be antedated to
the
date of sentence in the Regional Court, being 3 September 2009.
HENNEY,
AJ
I
agree. It is so ordered.
BLIGNAULT,
J