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[2013] ZASCA 140
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Rasirubu v S (651/12) [2013] ZASCA 140 (30 September 2013)
THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 651/12
NOT REPORTABLE
In the matter between:
AZWIFANELI
RASIRUBU
................................................................................
APPELLANT
and
THE
STATE
..................................................................................................
RESPONDENT
Neutral citation:
Azwifaneli Rasirubu v The State
(656/12)
[2013]
ZASCA
140
(30 September 2013)
Coram:
Ponnan,
Leach and Tshiqi JJA and Van der Merwe and Zondi AJJA
Heard: 03 September
2013
Delivered: 30
September 2013
Summary: Appeal
against sentence - evidence led at trial insufficient - unable ex
facie the record to conclude that the discretion
was exercised
judicially - appellant already served a lengthy period of
imprisonment - remittal not in the interests of justice
- sentence
substituted.
______________________________________________________________________
ORDER
______________________________________________________________________
On appeal from:
Venda
High Court, Thohoyandou (Hetisani J sitting as a court of first
instance):
The appeal is upheld.
The sentence imposed by
the high court is set aside and in its stead is substituted:
‘
(i)
The accused is sentenced to 8 years and 10 months imprisonment.
(ii) The substituted
sentence set out in 2(i) is antedated to 29 November 2009.’
______________________________________________________________________
JUDGMENT
______________________________________________________________________
TSHIQI JA (PONNAN,
LEACH JJA AND VAN DER MERWE AND ZONDI AJJA CONCURRING):
The
appellant
,
Azwifaneli
Rasirubu,
a
19 year old male, was charged in the Venda High Court, Thohoyandou
with rape, read with s 51(1)(
a
)
of the Criminal Law Amendment Act 105 of 1997 (the
Criminal Law
Amendment Act), it
being alleged that he raped a 13 year old girl.
He pleaded guilty to the charge and in amplification of his plea
tendered a statement
in terms of
s 112
of the Criminal Procedure 51
of 1977 (the CPA). The statement reads:
‘
I,
the undersigned, Azwifaneli Rasirubu, hereby make a statement freely
and voluntarily and states as follows: That on 25 June 2004,
and at
Karaba Village, I had sexual intercourse with [KM]
1
,
a female who resides at Karaba Village, without her consent. I know
and understand it is unlawful to have sexual intercourse with
a
person without her consent and acted with that knowledge. Therefore,
I plead guilty to the charge proffered against me.’
In
order to prove the complainant’s age the State submitted a
copy of her birth certificate. The only other evidence adduced
by
the State was a medical report (J88) completed by a medical
practitioner in respect of his examination of the complainant.
The
J88 reflected that the complainant was anxious, her vagina was
swollen, the space between the labia minora had superficial
cracks,
the hymen was torn at two, five, seven and eleven o’ clock and
the vaginal opening was swollen. The anal examination
showed
multiple superficial cracks at the anal opening at six o’clock.
Apart from the injuries to her genitalia, no other
injuries appear
to have been sustained by the complainant.
The
appellant testified in mitigation of sentence. He stated that he was
remorseful, had no previous convictions, was still a
school pupil in
grade 11 and that he lived with his unemployed mother and younger
siblings whom he maintained financially by
doing odd jobs.
The
court imposed a sentence of life imprisonment. He now appeals to
this court against sentence only, leave having been granted
by that
court (per Hetisani J).
Given
the paucity of information before the court when it imposed the
sentence, it is not clear what considerations were taken
into
account by the court in deciding that life imprisonment was an
appropriate sentence. As is evident from
s 112
statement, it merely
recited the elements of the offence. There was no evidence as to the
circumstances surrounding the commission
of the offence, nor for
that matter the nature of the relationship, if any, between the
appellant and the complainant prior to
the rape. Despite his age, no
pre sentencing report was submitted. Regarding the complainant,
there was no victim impact
assessment report or evidence on the
impact the rape had on her life. The court made no reference to the
Criminal Law Amendment Act nor did
it
conduct
an enquiry, as required in terms of the Act, whether there
were
any substantial and compelling circumstances present that justified
a deviation from the prescribed minimum sentence. In
Rammoko
v Director of Public Prosecutions
2003
(1) SACR 200
(SCA) para 13, Mpati JA stated: ‘Life
imprisonment is the heaviest sentence a person can be legally
obliged to serve. Accordingly,
where s 51(1) applies, an accused
must not be subjected to the risk that substantial and compelling
circumstances are, on inadequate
evidence, held to be absent.’
That is
precisely what occurred here. It follows that the high court
misdirected itself.
For,
even
in cases falling within the categories
of
rape
delineated in the
Criminal Law Amendment Act as
attracting a life
sentence, there are bound to be differences in the degree
of
their
seriousness as well as th
e
facts and circumstances of each case. It is thus the duty of the
court to apply its mind to all those considerations before
it
imposes sentence
.
The
judge was not excused from his duty to ensure that all relevant
information was placed before the court, regardless of the
failure
by counsel to do so. As stated in
S v
Siebert:
2
‘…
In
this field of law, public interest requires the court to play a more
active, inquisitorial role. The accused should not be sentenced
unless and until all the facts and circumstances necessary for
the responsible exercise of such discretion have been placed
before
the court.
An accused should not be sentenced on
the basis of his or her legal representative's diligence or
ignorance. If there is insufficient
evidence before the court to
enable it to exercise a proper judicial sentencing discretion, it is
the duty of that court to call
for such evidence … An
enlightened and just penal policy requires a broad scope of
sentencing options from which the most
appropriate option, or
combination of options, can be selected to fit the unique
circumstances of the case before the court. It requires
a
willingness on the part of the trial court actively to explore all
the available options and to choose the sentence best suited
to the
crime, the criminal, the public interest, and also the aims of
punishment.’
Given the failure of the
court a quo to ensure that all relevant information was before it,
it failed to properly exercise its
sentencing discretion. In those
circumstances, one would ordinarily remit the matter to the trial
court in order for that court
to properly exercise its discretion
afresh once the relevant evidential material was placed before it.
Here however, the appellant
was sentenced in November 2004 and has
been in custody since then. He has effectively served a period of
approximately nine years.
The appellant’s continued
incarceration pending the finalisation of the matter if it were to
be remitted to the high court
would thus not be in the public
interest. The interests of justice demand therefore that, in view of
the passage of time
this
court should, impose what it considers to be an appropriate sentence
based on the information at its disposal.
The appellant was a
young man
aged 19
,
he
pleaded guilty, had no
previous convictions and there was no evidence that he inflicted any
other injury other than those observed
to the complainant’s
genital area. The trial court remarked, that the appellant wished to
finish schooling and be a responsible
member of our community.
Counsel for the State conceded that taking all of the factors into
consideration the time already spent
by the appellant in custody
would be sufficient punishment. In my view therefore a sentence of
imprisonment equal to the time
spent in prison subsequent to the
date on which the appellant had been sentenced by the high court is
an appropriate one. The
effect of this conclusion is that the
appellant is not to undergo any further period of imprisonment.
In the result I make the
following order:
The appeal is upheld.
The sentence imposed by
the high court is set aside and in its stead is substituted:
‘
(i)
The accused is sentenced to 8 years and 10 months imprisonment.
(ii) The substituted
sentence set out in 2(i) is antedated to 29 November 2009.’
__________________________
Z L L TSHIQI
JUDGE OF APPEAL
APPEARANCES:
For Appellant: Mr MJ
Manwadu
Instructed by:
Justice Centre,
Thohoyandou
Justice Centre
Bloemfontein
For Respondent: Adv. NR
Nekhambele
Instructed by:
The Director of Public
Prosecutions, Thohoyandou
The Director of Public
Prosecutions, Bloemfontein
1
The
initials in lieu of the complainant’s full name have been used
to protect her identity.
2
S
v Siebert
1998 (1) SACR 554
(SCA) at 558 j – 559 c
.