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[2010] ZAGPPHC 548
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M.M v S (A22/2009) [2010] ZAGPPHC 548 (1 April 2010)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG HIGH COURT, PRETORIA
CASE
NO
:
A 22/2009
DATE:
1 APRIL 2010
M[...] M[...]
APPELLANT
VS
THE STATE
CRIMINAL APPEAL FROM
MAGISTRATES COURT
CORAM: LEDWABA J
ETSAPIRE 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 I
of Schedule 2 to imprisonment for life.
(2)
omitted
not
relevant...
(3) (a) If any court
referred to in subsection (I) 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
51
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 1
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
cooffenders 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 to 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 L[...], 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 ot 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 JA 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 view 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 isantedated to the
24
th
of June 2008.
SAPIRE, A J
I AGREE and it is
so ordered:
LEDWABA, J