About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2010
>>
[2010] ZAGPPHC 230
|
|
Letsapa v S (A427/2008) [2010] ZAGPPHC 230 (7 December 2010)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NO.: A427/2008
DATE:
07/12/2010
In
the matter between:
JACOB
ITUMELENG
LETSAPA
.................................................................
APPELLANT
And
THE
STATE
......................................................................................................
RESPONDENT
JUDGMENT
WEBSTER
J
1.
The
matter before us is an appeal against a sentence of life
imprisonment, imposed on the appellant on a conviction of raping an
8
year old girl, leave to appeal against the sentence having been
granted by Murphy J.
2.
The
appellant was convicted in the Regional court, Klerksdorp, on 27
February, 2006. The proceedings were stopped and the matter
remitted
to the North Gauteng High court for sentencing in accordance 52(l)(b)
of the
Criminal Law Amendment Act No. 105 of 1997
.
3.
Murphy
J confirmed the conviction. Evidence of a social worker was led. The
appellant's previous records were proved. The appellant's
first
conviction was for assault committed on 24 May 1989: the passing of
sentence had been postponed for 5 years; the second conviction
was
for attempted rape committed on 31 August,
1998
for which the appellant was sentenced to five (5) year's
imprisonment: he was arrested within a year of being sentenced for
the offence that is the subject matter of this appeal.
4.
After
hearing the submissions during the sentencing process, Murphy J found
that no substantial and compelling circumstances had
been established
and imposed the p-escribed minimum sentence of life imprisonment.
5.
The
imposition of a sentence is a matter pre-eminently for the trial
court. A court of appeal will only interfere with such a sentence
if
it is clear that in imposing the sentence that it did the trial court
did not exercise its discretion judicially. This is now
trite.
6.
The
first issue to be determined is whether Murphy J was correct in
finding that no substantial and compelling circumstances existed
that
justified a departure from the prescribed minimum sentence of life
imprisonment.
7.
The
meaning of the term "substantial and compelling circumstances"
was fully considered in
S
v Ma/gas 2001(2) 1222 SCA.
At
paragraph 21 and 22 Marais JA stated:
"[21]
It would be foolish, of course, to refuse to acknowledge that there
is an abiding reality which cannot be wished away,
namely an
understandable tendency for a court to use, even if only as a
starting point, past sentencing patterns as a provisional
standard
for comparison when deciding whether a prescribed sentence should be
regarded as unjust. To attempt to deny a court the
right to have any
regard whatsoever to past sentencing patterns when deciding whether a
prescribed sentence is in the circumstances
of a particular case
manifestly unjust is tantamount to expecting someone who has not been
allowed to see the colour blue to appreciate
and gauge the extent to
which the colour dark blue differs from it. As long as it is
appreciated that the mere existence of some
discrepancy between them
cannot be the sole criterion and that something more than that is
needed to justify departure, no great
harm will be done.
[22]
What that something more must be it is not possible to express in
precise, accurate and all-embracing language. The greater
the sense
of unease a court feels about the imposition of a prescribed
sentence, the greater its anxiety will be that it may be
perpetrating
an injustice. Once a court reaches the point where unease has
hardened into a conviction that an injustice will be
done, that can
only be because it is satisfied that the circumstances of the
particular case render the prescribed sentence unjust
or, as some
might prefer to put it, disproportionate to the crime, the criminal
and the legitimate needs of society. If that is
the result of a
consideration of the circumstances the court is entitled to
characterise them as substantial and compelling and
such as to
justify the imposition of a lesser sentence.".
At
page 1235 (para 25) he clarify the issue further when he said:
"[25]
What stands out quite clearly is that the courts are a good deal
freer to depart from the prescribed sentences than has
been supposed
in some of the previously decided cases and that it is they who are
to judge whether or not the circumstances of
any particular case are
such as to justify a departure. However, in doing so, they are to
respect, and not merely pay lip service
to, the Legislature's view
that the prescribed periods of imprisonment are to be taken to be
ordinarily appropriate when crimes
of the specified kind are
committed. In summary:
A.
Section 51
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).
B.
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.
C.
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.
D.
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.
E.
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. 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.
F.
All
factors (other than those set out in D 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.
G.
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.
H.
In
applying the statutory provisions, it is inappropriately constricting
to use the concepts developed in dealing with appeals against
sentence as the sole criterion.
I.
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.
J.
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 bench mark which
the Legislature
has provided."
8.
In 5
v
Vilakazi 2009(1) SACR 552 (5CA)
Nugent
JA cautioned against literal application of the provisions of
section
51(1)
without seriously considering the appropriateness of a sentence
having regard to the full facts in the particular case. Commenting
on
the "gradation" in schedule 2
Part I
read with
section 51
(1) he remarked at 559 C - H (Paragraph 13):
"[13]
What is striking about that regime is the absence of any gradation
between ten years' imprisonment and life imprisonment.
The minimum
sentence of ten years' imprisonment progresses immediately to the
maximum sentence that our law allows once any of
the aggravating
features is present, irrespective of how many of those features are
present, irrespective of the degree in which
the feature is present,
and irrespective of whether the convicted person is a first or repeat
offender. On the face of it a first-offending
18-year-old boy who
rapes his 15-year- old girlfriend on one occasion must receive the
same sentence as a recidivist serial rapist
who repeatedly gang-rapes
and beats senseless a disabled victim whom he consciously infects
with HIV. The 18-year-old boy who rapes
his 15-year-old girlfriend
must also receive the same sentence as the adult recidivist who rapes
an infant. The offender who imprisons
and rapes his victim repeatedly
every day for a week is considered to be no more culpable than one
who rapes his victim twice within
ten minutes. It requires only a
cursory reading of the Act to reveal other startling incongruities.
And when the sentences that
are prescribed for rape in various
circumstances are related to sentences prescribed for other crimes
even more incongruities emerge.
It is not surprising that the leading
writer on the subject of sentencing in this country, Professor
Terblanche, advanced the following
acerbic observation on the Act ten
years after it took effect:
I
have criticised the Act elsewhere 17 and, if anything, have become
more critical with time. There is hardly a provision in
sections 51
to
53
that is without problems. The number of absurdities that have
been identified and which will no doubt be identified in future is
simply astounding. The Act's lack of sophistication disappoints from
beginning to end. There are too many examples of disproportionality
between the various offences and the prescribed sentences."
9.
The
facts that persuaded the trial court to impose the prescribed
sentence of life imprisonment are the appellant's previous
convictions
and the report by a social worker, MS. BRUWER, which was
compiled so as to serve as a pre-sentence report on the appellant.
The
social worker did not limit her investigation to the appellant's
circumstances but she also interviewed the victim and her father
and
also drew up an impact report on the victim. In my view this was
undertaken so as to have an informed view and assessment of
all the
facts necessary to form a balanced opinion and conclusion.
10.
According
to Ms. Bruwer, the appellant initially denied having raped the
victim. Later during the interview, however, he admitted
having done
so and informed Ms. Bruwer that at the time of raping the complainant
he had been confused, having consumed alcohol
into which his friends
had thrown in some pills. He admitted he was guilty and felt "sore"
about it. He also felt ashamed
of his conduct. Asked what he would do
if someone were to rape his daughter his response was that if he laid
his hands on such
a culprit he would kill him.
11.
The
appellant grew up in an urban area. He was brought up by his
grandmother. The appellant was employed. He was married and lived
with his family. He is illiterate. Ms. Bruwer testified that the
appellant had clearly not learnt from his previous convictions
and
"...nie sy samewerking bied wanneer hy hulp aangebied word nie".
12.
The
interview with the victim showed that she had been traumatised. She
had not received counselling. She exhibited post-traumatic
stress
which a victim experiences when there is a serious threat to a
victim's life and physical integrity. The reaction of a rape
victim
is to fear for her life. Being only 8 years of age and the assailant
an adult, bigger and stronger than she was, would have
caused fear in
the complainant. The victim's post-traumatic stress manifested itself
from \..onstellende drome, 'n oordrewe skrikrespons
en konsentrasie
probleme'. The victim had still not recovered from the ordeal. The
social worker noted that the appellant had not
expressed any remorse.
13.
Her
recommendation was that direct imprisonment be imposed on the
appellant.
14.
It
was submitted before us that the trial court had failed to take note
of the "principle of proportionality" between
the
seriousness of the offence and the sentence imposed. It was further
submitted that the trial court had:
(i)
erred
in imposing the heavy sentence in the belief that it would
necessarily serve as a deterrent;
(ii)
not
distinguished the facts of this case from those where the sentence
imposed had been based on the degree of seriousness in the
perpetration of rape;
(iii)
not
taken into account the time the appellant had spent in custody
awaiting trial;
(iv)
not
taken into account that the victim had not sustained serious injury
and did not display signs of emotional trauma or distress
when she
was medically examined;
(v)
not
taken sufficient cognizance of the fact that there was no prognosis
of permanent emotional damage. On the contrary, counselling
could
alleviate or totally cure the victim from the post-traumatic stress
syndrome she was exhibiting. Finally, it was submitted
that the court
should, not only on the facts in this case, but should also consider
similar cases where life imprisonment had been
deemed not to be
appropriate.
15.
It
was submitted, for the State, that the trial court had correctly
found that:
(i)
Substantial
and compelling circumstances were lacking;
(ii)
The
appellant's previous convictions far outweighed any mitigating
circumstances;
(iii)
The
complainant was emotionally scarred and this is likely to haunt her
for the rest of her life;
(iv)
The
appellant's conduct should be "...met with the full force of the
applicable minimum sentencing legislation" as "...the
maximum sentence is [not] reserved for only extreme cases".
16.
Life
imprisonment is the ultimate sentence that may be imposed in our law.
It is also the prescribed sentence that an accused convicted
of
murder or rape that falls under
Part I
of Schedule 2 of Act 105 of
1997 may be sentenced to. The rape in the matter before us falls
under "Part I - Rape, (b) where
the victim - (i) is a girl under
the age of 16 years...". This prescribed sentence is equivalent
to the sentence for murder,
when -
"(a)
it was planned or premeditated;
(b)
the victim was -
(i)
a
law enforcement officer performing his or her functions as such,
whether on duty or not; or
(ii)
a
person who has given or was likely to give material evidence with
reference to any offence referred to in Schedule 1 to the Criminal
Procedure Act, 1977 (Act 51 of1977), at criminal proceedings in any
court;
(c)
the death of the victim was caused by the accused in committing or
attempting to commit or after having committed or attempted
to commit
one of the following offences:
(i)
Rape;
or
(ii)
robbery
with aggravating circumstances."
17.
In
terms of section 51 (2)(a) a person convicted of an offence referred
to in Part II of Schedule 2, shall be eligible to be sentenced
to:
(i)
not
less than fifteen (15) years' imprisonment if he/she is a first
offender;
(ii)
not
less than 20 years' imprisonment if he is a second offender;
(iii)
not
less than 25 years' imprisonment if he is a third or subsequent
offender.
18.
It
required very little if any analysis to realize that regarding the
rape of a girl under the age of 16 years as being more heinous
than
murdering three or more victims. There is clearly incongruity in
this. This, in my view, is the "gradation" that
Nugent JA
was alluding to in
S
v Vilakazi
(supra)
and the compelling reason for the "principle of proportionality"
between the offence and the sentence.
19.
The
attack on the victim was cowardly and certainly despicable. She was
only 8 years of age. That no violence was applied begs the
question:
the crime remains serious and deserving of severe censure.
20.
The
only injuries sustained by the victim apart from those of a
psychological nature were "...fresh tears of hymen and multiple
vaginal bruising". Despite this the complainant exhibited
psychological harm. It is not possible and in fact it would be a
serious misdirection for this court to conclude that the complainant
will be unaffected by the experience. I accept Ms. Bruwer's
concerns
that the victim will suffer post-traumatic stress and will require
counselling.
21.
In
cases of this nature it is imperative that this court should have
regard particularly to the approach by the Supreme court of
Appeal in
similar cases. In
S
v Abrahams 2002(1) 5ACR 116 (SCA),
a
case where a father raped his own child 'so as to precede other young
males in having carnal access to his 14 year old daughter',
a
sentence of 12 years imprisonment was imposed on appeal. In
S
v Mahomotsa 2002(2) SACR 435,
the
appellant had raped two girls more than once having threatened one
with a firearm and the other with a knife. The second rape
had
occurred whilst the accused had been awaiting trial on the first
count. A sentence of eight years on the first count and twelve
years
on the second count was deemed appropriate by the Supreme Court of
Appeal.
22.
In
S
v Vilakazi
2009 (1) SACR 552
(SCA),
a
sentence of life imprisonment for the rape of a girl under 16 years
of age was set aside and substituted with one of 15 years
imprisonment.
23.
In
imposing the sentence of life imprisonment the trial court clearly
did not consider the proportionality test. Had it done so,
it is most
likely that it would have concluded that life imprisonment in the
circumstances of this case was disproportionate to
the crime. Those
facts alone are in my considered view, sufficient to justify
interfering with the sentence of the trial court.
24.
Having
said so, however, it must be emphasized that whilst long periods of
imprisonment may not necessarily rehabilitate an offender
two factors
need to be emphasized in this case.
25.
As
pointed out by the court
a
quo,
the
appellant has traits of violence. Secondly, the appellant had barely
been out of prison after serving a sentence for attempted
rape when
he raped the victim who was only eight years old. These factors are
clearly aggravating in nature and tend to demonstrate
a total
disregard and disrespect for women's bodily integrity. This is
particularly apparent when regard is had to the fact that
the
appellant was a family man and the victim in this case a young child.
Whilst this court may not presume that the appellant's
conduct
inclines towards a strong prospect against rehabilitation the
appropriate sentence in this case should bring home to the
appellant
and like minded people that:
(i)
Rape
is a serious offence that will not be tolerated in our society;
(ii)
Women
have the right to bodily integrity and the law will bear heavily on
those who violate their rights;
(iii)
The
molestation and abuse of children likewise, will never be tolerated.
26.
It is my considered view that the appeal should succeed. I would
accordingly set aside the sentence and replace it with the
following:
"The
accused is sentenced to eighteen (18) years' imprisonment".
G.
WEBSTER
JUDGE
IN THE HIGH COURT