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[2010] ZAGPPHC 259
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M.M v S (A 22/2009) [2010] ZAGPPHC 259; 2010 (2) SACR 543 (GNP) (1 April 2010)
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IN
THE HIGH COURT OF SOUTH AFRICA
North
Gauteng High Court, Pretoria
Case
No: A 22/2009
DATE:01/
04/2010
M
M.
..............................................................................................................................
Appellant
vs
The
State
Criminal
Appeal from Magistrates, Court Coram: Ledwaba J et Sapire AJ
JUDGEMENT
SAPIRE,
A J:
The
Appellant, who at the time of trial was aged 26 years, appeared
before the Benoni Regional Court Magistrate on one count of
rape
involving two acts of non consensual intercourse with the
complainant. He was convicted and sentenced to life imprisonment.
The
sentence so imposed is a minimum sentence prescribed by Section 51 of
Act 105 of 1997. It is a sentence which may not be departed
from by
the imposition of a lesser sentence unless substantial and compelling
circumstances exists which justify the imposition
of a lesser
sentence. The substance of the appeal is that such circumstances were
present and should so have been found to exist
by the magistrate. It
follows so it was argued that a lesser sentence would have been
appropriate, and should have been imposed.
Sections
51 and the relative Schedule of the
Criminal Law Amendment Act 105 of
1997
since amendment provide:
51
Discretionary minimum sentences for certain serious offences
(1)
Notwithstanding any other law, but subject to subsections (3) and
(6), a regional court or a High Court shall sentence a person
it has
convicted of an offence referred to in
Part 1
of Schedule 2 to
imprisonment for life.
(2)
omitted not relevant...
(3)
(a) If any court referred to in subsection (1) or (2) is satisfied
that substantial and compelling circumstances exist which
justify the
imposition of a lesser sentence than the sentence prescribed in those
subsections, it shall enter those circumstances
on the record of the
proceedings and must thereupon impose such lesser sentence: Provided
that if a regional court imposes such
a lesser sentence in respect of
an offence referred to Part i of Schedule 2. it shall have
jurisdiction to impose a term of imprisonment
for a period not
exceeding 30 years.
(AA)
When imposing a sentence in respect of the offence of rape the
following shall not constitute substantial and compelling
circumstances
justifying the imposition of a lesser sentence:
(i)
The complainant's previous sexual history;
(ii)
an apparent lack of physical injury to the complainant:
(iii)
an accused person's cultural or religious beliefs about rape; or
(iv)
any relationship between the accused person and the complainant prior
to the offence being committed.
(4)
(5)
The operation of a sentence imposed in terms of this section shall
not be
suspended
as contemplated in s 297(4} of the Criminal Procedure Act 51 of 1977.
(6).
(Omitted because immaterial.) (7)
(8)
The
relevant portion of Schedule 2) is as follows: 'Part I
Rape
-
(a)
when committed -
(I)
in circumstances where the victim was raped more than once whether
by the accused or by any co-perpetrator or accomplice;
(ii)
(iii)
by a person who has been convicted of two or more offences of rape,
but has not yet been sentenced in respect of such convictions;
or
(iv)
The
offence committed by the Appellant is rape perpetrated in
circumstances as described in Schedule 2, (a) (i) under Rape as the
victim was penetrated by the accused twice with a short intervening
interval of time. There does not appear to be any significance
in
that there was only one charge of rape, although completed and
separate instances of the offence took place in close succession.
The
prescribed minimum sentence is subject to the discretion afforded by
Section 51(3) of the Act.
This
discretion, (before later amendments) received the consideration of
the Supreme Court of Appeal in State vs. Malgas,
2001 (2) SA 1222
,
the Headnote to which accurately encapsulating the judgment reads
"Section 5 I of the
Criminal Law Amendment Act 105 of 1997
has
limited but not eliminated the courts' discretion in imposing
sentence in respect of offences referred to in
Part I
of Schedule 2
(or imprisonment for other specified periods for offences listed in
other parts of Schedule 2). Courts are required
to approach the
imposition of sentence conscious that the Legislature has ordained
life imprisonment (or the particular prescribed
period of
imprisonment) as the sentence that should ordinarily and in the
absence of weighty justification be imposed for the listed
crimes in
the specified circumstances. Unless there are, and can be seen to be.
truly convincing reasons for a different response,
the crimes in
question are therefore required to elicit a severe, standardised and
consistent response from the courts. The specified
sentences are not
to be departed from lightly and for flimsy reasons. Speculative
hypotheses favourable to the offender, undue
sympathy, aversion to
imprisoning first offenders, personal doubts as to the efficacy of
the policy underlying the legislation
and marginal differences in
personal circumstances or degrees of participation between
co-offenders are to be excluded The Legislature
has. however,
deliberately left it to the courts to decide whether the
circumstances of any particular case call for a departure
from the
prescribed sentence. All factors (other than those set out above)
traditionally taken into account in sentencing (whether
or not they
diminish moral guilt) thus continue to play a role: none is excluded
at the outset from consideration in the sentencing
process. While the
emphasis has shifted to the objective gravity of the type of crime
and the need for effective sanctions against
it. this does not mean
that all other considerations are to be ignored. The ultimate impact
of all the circumstances relevant to
sentencing must be measured
against the composite yardstick ('substantial and compelling') and
must be such as cumulatively justify
a departure from the
standardised response that the Legislature has ordained. In applying
the statutory provisions, it is inappropriately
constricting to use
the concepts developed in dealing with appeals against sentence as
the sole criterion. If the sentencing court
on consideration of the
circumstances of the particular case is satisfied that they render
the prescribed sentence unjust in that
it would be disproportionate
to the crime, the criminal and the needs of society. so that an
injustice would be done by imposing
that sentence, it is entitled to
impose a lesser sentence. In so doing, account must be taken of the
fact that crime of that particular
kind has been singled out for
severe punishment and that the sentence to be imposed in lieu of the
prescribed sentence should be
assessed paying due regard to the
benchmark which the Legislature has provided.."
Now
to apply the principles so summarised lo the facts of the case before
us.
Counsel
for the appellant submitted that substantial and compelling
circumstances as contemplated were to be found which should
have
entitled and persuaded the court a quo to deviate from the prescribed
sentence.
The
first of such circumstances he argued was that although not married
the appellant was the father of two minor children, born
of different
mothers, to the support of whom he contributed from his earnings in
gainful employment. It was not even suggested
that the appellant
should have been so sentenced as to enable him to continue working
and contributing to the support of these
children. This would have
excluded any custodial sentence. On the contrary a long custodial
sentence is not avoidable. By the time
the Appellant has served even
a lenient custodial sentence in expiation of his crime the children
will have grown up without his
contribution to their support. This
consideration therefore, is not substantial and does not compel a
departure from the prescribed
minimum sentence.
Secondly
counsel argued that the Appellant was a first offender, 27 years of
age at the relevant time and thus a candidate to rehabilitation.
This
argument too, cannot be sustained. The Appellant, like the
complainant was an employee of Lovelife, an organisation devoted
the
propagation of appropriate sexual conduct in the community especially
in regard to combating HIV/AIDS. The Appellant was therefore
a
teacher, not himself requiring instruction for his rehabilitation. As
such the Appellant was well schooled in the proprieties
of sexual
behaviour and aware as any, of the gravity of the crime of rape. His
rehabilitation was not at the time of sentencing
a primary object of
the sentence which had to be imposed.
Although
counsel submitted that the court a quo did not have the benefit of an
expert report regarding the extent of any psychological
trauma
suffered by the complainant the absence of such a report does not
mean that the magistrate was not aware of how seriously
the
complainant was affected by the repeated rape. The medical evidence
indicated a serious sexual assault resulting in extensive
injury to
the complainants internal genital organs. Extensive black bruising
which is only to be found where the assault on the
organ is
particularly severe was perceived by the doctor who examined the
complainant. The picture emerges is that the encounter
was rough, and
its effect cannot be trivialised.
None
of these taken separately can be said to constitute a justifiable
reason for imposing a sentence less than the prescribed minimum.
The
magistrate examined all the submissions relative to sentence
carefully and fairly. The magistrate did not record any finding
of
substantial and compelling circumstances in the record. It must be
inferred that none were found. I am not persuaded that the
magistrate
was, save for what follows, in error..
Having
said this, the imposition of a life sentence does not appear to be
appropriate in the circumstances. The original impression
in this
regard has become increasingly crystallized during the examination of
the record and the attention to argument from counsel.
I felt it
proper to put it to counsel for the State that I had the impression
that even she had misgivings in this regard. To this
she agreed.
The
root of the problem is that the minimum sentence prescribed for the
offence of which the appellant was convicted is also the
maximum
sentence which since capital punishment has been eliminated; a court
in this country can impose. This makes it difficult
to apply the act
when it is recognized that there is a gradation of seriousness even
in instances where the perpetration of the
offence is within the
circumstances contemplated in 2(a) (i) of the schedule..
The
Supreme Court of Appeal has indicated guide lines as to how the
discretion is to be applied. In S v MAHOMOTSA
2002 (2) SACR 435
(SCA). concerned with the sentencing in a case of multiple rape such
as the present. Mpati JA in delivering the judgment of the
court in
paragraphs 14. 18 and 19 said:
"The
present being a case where the complainants were each raped more than
once, the prescribed period of imprisonment for
life is the sentence
which should ordinarily be imposed. It should not be departed from
lightly and for flimsy reasons which cannot
withstand scrutiny (S v
Malgas: S v Dodo
[2001] ZACC 16
;
2001 (1) SACR 594
(CC)
(2001 (3) SA 382)]).
However,
in considering the question, a Court is not prohibited by the Act
from weighing all the usual considerations traditionally
relevant to
sentence.'"
18
It perhaps requires to be stressed that what emerges clearly from the
decisions in Malgas and Dodo is that it does not follow
that simply
because the circumstances attending a particular instance of rape
result in it falling within one or other of the categories
of rape
delineated in the Act. a uniform sentence of either life imprisonment
or indeed any other uniform sentence must or should
be imposed. If
substantial and compelling circumstances are found to exist, life
imprisonment is not mandatory nor is any other
mandatory sentence
applicable. What sentence should be imposed in such circumstances is
within the sentencing discretion of the
trial Court, subject of
course to the obligation cast upon it by the Act to take due
cognisance of the Legislature's desire for
firmer punishment than
that which may have been thought to be appropriate in the past. Even
in cases falling within the categories
delineated in the Act there
are bound to be differences in the degree of their seriousness. There
should be no misunderstanding
about this: they will all be serious
but some will be more serious than others and. subject to the caveat
that follows, it is only
right that the differences in seriousness
should receive recognition when it comes to the meting out of
punishment. As this Court
observed in S v Abrahams
2002 (1) SACR 116
(SCA). 'some rapes are worse than others and the life sentence
ordained by the Legislature should be reserved for cases devoid
of
substantial factors compelling the conclusion that such a sentence is
inappropriate and unjust' This caveat was added.
19.
Of course, one must guard against the notion that because still more
serious cases than the one under consideration are imaginable,
it
must follow inexorably that something should be kept in reserve for
such cases and therefore that the sentence imposed in the
case at
hand should be correspondingly lighter than the severer sentences
that such hypothetical cases would merit. There is always
an upper
limit in all sentencing jurisdictions, be it death, life or some
lengthy term of imprisonment, and there will always be
cases which,
although differing in their respective degrees of seriousness,
nonetheless all call for the maximum penalty imposable.
The fact that
the crimes under consideration are not all equally horrendous may not
matter if the least horrendous of them is horrendous
enough to
justify the imposition of the maximum penalty." S v GN
2010 (1)
SACR 93
(T) is a recent decision of the full bench of this court in
point, which followed the guide line to which I refer. The headnote
reads as follows
"In
S v Mahomotsa and also in S v Nkomo the courts relied on the passage
from S v Abrahams that I have quoted earlier. I have
already
concluded that the passage does not mean that, even where the Act
prescribes imprisonment for life as a minimum sentence,
it can be
imposed only in the most serious cases. In my view the quoted
passage, and its application in the other two cases referred
to.
conveys that, even where imprisonment for life is prescribed as a
minimum sentence, a court must bear in mind that it is the
ultimate
penalty that the courts in this county can impose. As such, it must
not be imposed lightly, even when it is a prescribed
minimum
sentence. At the risk of complicating it. I shall expand on what I
have said in the previous paragraph. It is axiomatic
that, in order
for it to arrive at a just sentence, a court must have a balanced
regard to the nature and seriousness of the crime,
the personal
circumstances of the accused and the legitimate interests of society.
The result thereof is that justice demands that,
even for similar
crimes, different sentences must often be imposed. In S v Malgas
(Para 25) Marais J A pointed out that s 51 of
the Act 'has limited
but not eliminated the courts' discretion in imposing sentence '. It
follows that, even where the Act prescribes
a minimum sentence, the
courts must still seek to differentiate between sentences in
accordance with the dictates of justice. Where
the prescribed minimum
sentence is less than life imprisonment, such differentiation is
possible either by imposing a heavier sentence
than the prescribed
minimum or. where there are substantial and compelling circumstances
so to do. to impose a lesser sentence.
Where the minimum prescribed
sentence is life imprisonment, it is impossible to differentiate
otherwise than by imposing a lesser
sentence. Thus, where the Act
prescribes imprisonment for life as a minimum sentence, the fact that
it is the ultimate sentence
must also be taken into account.
Accordingly, in its quest to do justice, a court will more readily
impose a lesser sentence where
the prescribed minimum sentence is
imprisonment for life. Put differently, where the prescribed minimum
is life imprisonment, a
court will more readily conclude that the
circumstances peculiar to the case are substantial and compelling, to
the extent that
justice requires a lesser sentence than life
imprisonment."
This
being so the inappropriateness of the sentence itself can in terms of
the judgement in Malgas case amount to a compelling circumstance
justifying a deviation from the minimum prescribed sentence. This is
a case which is undoubtedly very serious but it is not one
where
worse circumstances cannot be conceived.
In
viewT of this it is open to this court to find that the Regional
Court erred in imposing the prescribed minimum sentence without
giving sufficient consideration to the guidelines emerging from the
judgments to which reference has been made.
There
are features of the present case which permit the finding of the
existence of substantial and compelling circumstances as
interpreted
in accordance with precedent afforded by the cases cited. The
circumstances are
a)
The repeat rape although increasing the gravity of the offence of
which the Appellant was found guilty to one where the prescribed
minimum applies, did not so aggravate the first rape to the extent
that just punishment required the imposition of the maximum
sentence
which the law allows. At the time of the second instance, which
followed closely on the first, much of the damage had
already been
done. The shock injury and humiliation already inflicted on the
complainant still persisted. The perpetration of the
first rape
required the imposition of at least the minimum sentence prescribed
therefore. The repeat was related so closely in
time to
the first
instance so that the aggravation of the persisting hurt cannot be
measured. Justice requires that the Appellant be punished
for a
single rape with aggravating circumstances
requiring a sentence
markedly in excess of the minimum prescribed.
b)
It is also permissible and required to take into account the
apologetic attitude shown by the appellant immediately after the
commission of the crime. Although much of the mitigating effect
thereof was dissipated by the Appellants eventual plea of not guilty
and the defence proffered that the intercourse with the complainant
was with her consent, the evidence is that the Appellant by
apologising and confessing to the nursing sister tried to mollify the
complainant and offered to recompense her for the hurt he
had caused
her. No doubt he also was trying to forestall the laying of the
charge against him. Nonetheless his initial remorse
can operate in
his favour. I propose the following order:
The
appeal against the sentence is upheld on the basis that the sentence
of life imprisonment imposed by the court a quo is set
aside and
substituted with the following sentence.
"Appellant
is sentenced to 15 (fifteen) years imprisonment which is antedated to
the 24th of June 2008.
SAPIRE,
A J
I
AGREE and it is so ordered:
IT
LEDWABA,
J