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[2010] ZAGPPHC 283
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S v Ngomane (A407/10) [2010] ZAGPPHC 283; 2012 (2) SACR 474 (GNP) (3 September 2010)
REPORTABLE
THE
HIGH COURT OF SOUTH AFRICA NORTH
GAUTENG
HIGH COURT. PRETORIA
CASE
NO: A407/10
DATE:2010-09-03
The
Magistrate NIGEL
Case
no SH193/09
In
the matter between:
THULANI
VINCENT NGOMANE
…...............................
Appellant
versus
THE
STATE
…....................................................................
Respondent
JUDGMENT
MAVUNDLA
J:
1.
This is an appeal against the sentence of 15 years imprisonment
imposed upon the appellant consequent to his plea of guilty on
one
count of rape and conviction in the Regional Court of Nigel on 1
December 2009.
2.
The appellant was duly represented during the trial in the Regional
Court. He pleaded guilty to the charge and handed in his
statement in
terms of section112 of Act 51 of 1977. This statement was accepted as
Exhibit A and read into the record. The statement
is reflected at
page 5 of the record. He admitted having had sexual intercourse
without the consent of the complainant.
I
am of the view that the conviction of the appellant was in accordance
with justice and he was correctly so convicted.
In
regard to sentence it was put on record that the appellant is 42
years old, not married and has no children. The appellant admitted
his previous record. On 19 June 1996 he was found guilty of rape and
sentenced at KwaThema to eight years imprisonment. He was
further
declared not fit to possess a firearm in terms of the Old Fire Arms
Act, 75 of 1969. The magistrate took into consideration
all these
factors and sentenced the appellant to 15 years imprisonment.
It
has been submitted on behalf of the applicant that the magistrate
misdirected himself in finding that there were no compelling
circumstances warranting a departure from the minimum sentence of 15
years. It is not submitted that rape is not a serious offence.
It is,
however, submitted that on the record there is nothing that shows the
extent of the injuries suffered. It is submitted that
this is not one
of those cases it could be said it is a very serious offence or a
serious rape case.
On
behalf of the state it is submitted that rape is a very serious case.
The victim of the nature of this offence is scarred and
is
stigmatised and would be emotionally scarred. It is further submitted
that the magistrate did not misdirect himself in imposing
the minimum
sentence of 15 years.
In
casu there is nothing on record that shows whether the complainant
was injured and if so what the extent of her injuries were.
All that
is apparent is that the complainant was from Mozambique. We have not
been furnished with, for instance, the J88-form which
in many
instances of this nature it would be on record. It may well be that
because the appellant had indicated that he is going
to plead guilty
that this was not placed on record. I am of the view that even if the
appellant or put differently even if an accused
person gives an
indication that he intends to plead guilty it is the task of the
prosecuting authorities to ensure that the J88-form
nonetheless
handed in. This is necessary so that when at a later stage the
convicted person decides to approach this Court on appeal
either
against conviction or against sentence that the Appeal Court would
then be in a position to assess for itself what the extent
of the
injuries to the victim were even if the accused person intends to
plead guilty.
In
my view it is the responsibility of the presiding officer to bring to
the attention of the accused person that he stands to be
sentenced in
accordance with the Minimum Sentence Act. This is necessary because
in many instances the people who have been convicted
of offences of
this nature will then at a later stage, when they decide to execute
or prosecute an appeal, will then raise a point
that because they
have not been appraised that they are exposed to be sentenced through
the Minimum Sentence Act and that, therefore,
their trial was not
fair.
In
my view the state irrespective whether that person intends to plead
guilty or not guilty it must, where the Minimum Sentence
Act is
applicable, right from the onset and this must appear on record,
bring to the attention of the accused person to the fact
that the
Minimum Sentence Act is applicable. Equally so it is the task and
responsibility of the presiding officer, not only to
explain the
rights of an accused person but also the fact that he is exposed to
the Minimum Sentence Act.
I
am remarking as I did notwithstanding the fact that that point is not
raised in this case. The point that is being raised is that
the
sentence of 15 years, in the circumstances of this case, is
shockingly excessive and that 10 the magistrate in imposing this
sentence, having regard to the fact that the appellant or rather the
victim did not suffer serious injuries.
The
magistrate took into consideration the personal circumstances of the
appellant, his age and inter alia the fact that he pleaded
guilty and
that he is not a first offender.
The
magistrate also had regard to the fact that rape is a serious and
dreadful offence especially in the wave of AIDS and HIV. He
further
found that there are no exceptional and compelling circumstances
warranting a departure from the imposition of the minimum
sentence.
The
fact that the magistrate imposed 15 years imprisonment shows 20 that
he did not attach much value to the fact that the appellant
has a
previous conviction of a similar offence which dates back 13 years
earlier because had he done so then he would have sentenced
accepting
that his finding was right, was correct, that there are no
exceptional and compelling circumstances then he would have
sentenced
the appellant to the minimum sentence of 20 years which is the
applicable sentence where the person has got a previous
conviction of
a similar offence.
Sentencing
is a matter of judicial discretion of the Court imposing sentence.
The Appeal Court has limited judicial discretion to
interfere with
the sentence. The Appeal Court can only interfere with a sentence if
the discretion of the Court imposing sentence
was not judicially
exercised and was vitiated by an irregularity or misdirection or the
sentence is so severe that no reasonable
Court could have imposed
such sentence. The Appeal Court will interfere if the sentence
induces a sense of shock and is grossly
excessive to what sentence
the Appeal Court would have imposed. Vide S v De Jager and another
1965 (2) SA 616
(A) at 628 (FIN) 2629B. Vide also S v Blignaut
2008
(1) SACR 78
(SCA) at 81 (f) to 83(f).
Where
a Court is dealing with the Minimum Sentence Act, in particular in
respect of several offences, in my view, it is expected
of and
necessary that the magistrate must canvass what the nature and extent
of the injuries, if any, sustained by the victim of
rape are. This is
a factor that needs to be placed on the balancing scale to determine
whether there exist compelling and exceptional
circumstances. It
would seem that this was not done in this case. This failure on the
part of the magistrate in canvassing what
the extent of the injuries
suffered by the complainant is, is in my view a serious misdirection.
Where this is not done the right
of the appellant when he executes an
appeal is adversely affected because the Court of Appeal is unable to
assess the gravity of
the offence. It is not that rape per se is not
serious but there are various degrees of brutality meted to rape
victims I am of
the view that because of the misdirection which I
have referred to herein above on the part of the magistrate, his
failure to place
on record the extent of the injuries suffered by the
complainant, this Court is at liberty to consider whether there exist
compelling
and exceptional circumstances warranting a departure from
the minimum sentence.
The
appellant pleaded guilty and his plea cannot be looked at in
isolation. It must be looked at in the context of the totality
of the
facts before the Court. The cumulative effect of these facts, namely,
that the appellant pleaded guilty, is 42 years old,
the absence of
the nature and the extent of the injures suffered by the complainant
amounts to exceptional and compelling circumstances.
I am of the view
that having regard to the abovementioned factors the sentence of 15
years is disproportionately excessive and
induces a sense of shock.
In
the result I am of the view that this Court must interfere with the
sentence imposed by the magistrate and set it aside and impose
an
appropriate sentence.
In
the result I make the following order:
1.
That the conviction of the appellant is confirmed.
2.
That the appeal against the sentence is upheld and the sentence of 15
years imprisonment is set aside and substituted with ten
years
imprisonment which is antedated to 1 December 2009.
3.
That the period of the incarceration of the appellant from 18 June
2009 as an awaiting trialist be taken into consideration in
determining when the appellant would qualify to be considered for
parole.
KOLLAPEN
AJ: I agree.