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[2011] ZAGPPHC 225
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Mabena v S (A874/09) [2011] ZAGPPHC 225; 2012 (2) SACR 287 (GNP) (4 November 2011)
RPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
REPUBLIC OF SOUTH AFRICA
CASE
NO: A874/09
DATE:04/11/2011
In
the matter between:
JOHANNES
MABENA
..................................................
Appellant
and
THE
STATE
......................................................................
Respondent
JUDGMENT
Tuchten
J:
1.
The appellant was convicted by a regional magistrate on a charge of
raping a thirteen year old child. As the law then stood,
the matter
was referred to this court (Eksteen AJ) for sentence. The learned
judge received a psycho-social report in respect of
the appellant and
heard the evidence of the complainant, who was by that stage 17 years
old, in relation to sentence.
2.
Although the learned judge appreciated that the minimum sentencing
regime was applicable, he sentenced the appellant to imprisonment
for
five years of which three years were suspended.
3.The
appellant was granted leave to appeal against both the conviction and
the sentence and his appeal in this regard is presently
before this
court.
4.
By notice dated 11 October 2011, the State gave notice of its
intention to apply for the increase of the sentence imposed upon
the
appellant on the grounds that the sentence imposed by the learned
judge was inappropriately low and that the sentence imposed
over-emphasised the personal circumstances of the appellant and
failed to give adequate weight to the seriousness of the offence
and
the interests of the community.
5.
From enquiries made from the bench at the commencement of argument
before us, it is clear that the appellant was made aware of
the
application for an increase in the sentence and gave his counsel
specific instructions to proceed with the appeal despite the
risk he
ran of having the sentence increased on appeal.
6.
The complainant testified that on 13 October 2003, she went to the
appellant for help with her mathematics lessons. The appellant
was 18
at the time. According to the complainant, the appellant told her
that they must go into his room in the house in which
he was staying
because it was cool there. The complainant then described how the
appellant asked her to kiss him and said that
he would not force her
to do so; he then left the room but came back and closed the door and
said again that she must kiss him.
The complainant then said she
wanted to leave but the appellant pushed her onto the bed and raped
her, while covering her mouth
with his hand to prevent her screaming.
7.
It is important in view of the conclusions of the learned judge to
mention that the complainant was wearing a very short pair
of shorts
at the time. According to the complainant, the appellant succeeded in
penetrating her without removing her shorts, which
he succeeded in
thrusting to one side.
8.
On the same day, the complainant told first her friend, then her
sister and then her mother of what she said had happened to
her. The
police were called and a charge was laid. That evening, at about
23h30, the complainant was examined by a medical doctor,
Dr Itsweng,
at the Mamelodi hospital. Dr Itsweng found that there was a discharge
from and reddening around the outside of the
vagina as well as
posterior fourchette bleeding inside the vagina. The doctor concluded
that forceful penetration had taken place.
He could not see the hymen
on examination so could not come to a conclusion on whether or not
the hymen had been torn.
9.
The appellant gave evidence. He admitted that the complainant had
come to see him but said that she had neglected to bring her
school
books with her. He said he told her to go and get her books, which
she agreed do but then left and did not come back. The
appellant
denied having had intercourse with the complainant.
10.
The regional magistrate evaluated the evidence and came to the
conclusion that Dr Itsweng had indeed made the observations in
relation to the complainant’s body to which he had testified.
In the light of this corroborative evidence, the regional magistrate
accepted the complainant’s evidence that she had been raped and
rejected that of the appellant.
11.
On appeal it was argued that the regional magistrate ought to have
accepted that the evidence of the appellant was reasonably
possibly
true. It was however not suggested that the regional magistrate
misdirected herself in any respect. The power of an appeal
court to
interfere on fact with the findings of the court below is limited.
Interference
in this regard is only permissible where the findings of the court
below are vitiated by misdirection or are patently
wrong. I find no
basis for interference in the present case. I think that the regional
magistrate was correct in her finding that
intercourse had in fact
taken place and, in the light of that finding, rightly rejected the
appellant’s evidence. The appeal
against conviction must
therefore fail.
12.
The following appeared from the psycho-social report, compiled on 25
April 2008 by a probation officer:
12.1
The appellant was born on 24 August 1985 and was thus a little more
than 18 years and one month old at the time of the rape.
12.2
The appellant matriculated in 2002 and had a post-school
qualification in the form of a certificate in “PC Engineering”.
12.3
The appellant showed no remorse and persisted in his denial (which in
my view was untruthful) that he had raped the complainant.
12.4
The appellant had no previous convictions.
12.5
The appellant grew up in an extended family environment comprising
his maternal grandmother, five cousins, his mother and two
siblings.
His father died in 2006. The appellant regarded his family as
economically poor but functioning well. There was nothing
in the
appellant’s background that could have pre-disposed the
appellant to criminal conduct. His relationship with his mother
was
good and his mother was supportive.
12.6
The appellant had a girlfriend at the time of the offence but she
terminated the relationship because of the rape allegation.
12.7
The appellant attained his certificate in engineering with the
assistance of a substantial bursary but failed in 2004 and decided
to
drop out.
13.
The complainant gave evidence in relation to the sentence to be
imposed on the appellant. She said that although the incident
had
affected her in that she lost concentration and her school marks
dropped, she had learnt to forgive the appellant. She said
in regard
to the emotional effect the rape had had on her:
For
some reasons I was angry, not to her (sic) but to myself because of
the clothes I was wearing, the relationship that I had with
him -1
felt I was the one pushing myself to him, so I felt angry.
14.
She agreed that the manner in which she had been dressed constituted
a temptation and went on:
I
learnt to forgive myself and to look at the situation and to forgive
him as well and yes, I made peace with everything.
So
that is why I was saying to your (sic) earlier that I do not see the
point of him being sentenced, because as a Christian I believe
if we
forgive we should all like forget, all what ... about what happened.
So, yes, I forgave him and I believe he should maybe
have a second
chance.
...
I believe if we ... if I say that I have forgiven him I do not have
to live with that thing that he is in jail because of me
and at the
same time saying that I have forgiven him.
15.
In passing sentence, the learned judge said, inter alia, the
following:
15.1
“Sy het ook ‘n baie belangrike aspek aangeraak wat die
hof
opgemerk
het tydens die deurlees van die verrigtinge, datsyin ‘n groot
mate te blameer is vir die gebeure wat die aand plaasgevind
het. Om
na ‘n jong man se kamer te gaan terwyl sy so ‘n
kortbroekie aan het dat sy nie eens nodig gehad het
om
die broek uit te trek tydens geslagtelike verkeer nie, dan soek sy
wat sy gekry het." [own emphasis]
15.2
The learned judge also noted in mitigation of sentence “die
verleidelike kleredrag” of the complainant.
16.
In addition to the reference to the complainant’s clothing, the
learned judge identified the following factors as justifying
the
imposition of a lesser sentence than the prescribed minimum:
16.1
the plea of the complainant and the fact that she had forgiven the
appellant;
16.2
the youth of the appellant and of the complainant;
16.3
the circumstances in which the crime was committed and especially the
seductive clothing;
16.4
the fact that the appellant was a first offender and that the
commission of the offence had severely affected his career and
his
education;
16.5
the fact that there were no serious injuries.
17.
In my view, the reasoning of the learned judge in regard to sentence
is vitiated by two serious misdirections.
18.
Firstly, the minimum sentencing regime operative in this case arises
from the provisions of
ss 51
of the
Criminal Law Amendment Act 105 of
1997
which, to the extent relevant, provide:
51.
Minimum sentences for certain serious offences.
(1)
Notwithstanding any other law but subject to ss (3) and (6), a High
Court shall, if it has convicted a person of an offence
referred to
in
Part I
of Schedule 2, sentence the person to imprisonment for
life.
(3)(a)
If any court referred to in ss (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 may thereupon impose such lesser sentence.
1
19.
Under
s 53
of the same Act, the minimum sentencing regime was to have
expired two years after its commencement unless extended by the
President
with the concurrence of Parliament. The measure was
intended to combat the rising tide of violent crime in our country.
It has
from time to time since it came into force in 1998 duly been
extended as contemplated and is still in force at today.
20.
Rape of a girl under the age of 16 years is one of the crimes
identified in
Part 1
of Schedule 2.
Section 51(5)
of the same statute
provides:
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
.
21.
The learned judge was thus precluded by law from suspending any part
of the sentence imposed pursuant to the minimum sentencing
regime and
his doing so constituted a material misdirection.
2
22.
The second such misdirection arises from the references by the
learned judge to the complainant’s so-called seductive
clothing
and the imputation of responsibility for the crime to the
complainant. There is no possible justification for the attribution
of blame to the complainant under the circumstances I have described.
Women and girls are entitled, as is everybody else, to wear
what
clothes they please, free from any suggestion that they invite by
their dress preferences the criminal attentions of those
with whom
they interact or encounter. At the subjective level, moreover, there
was no indication in the evidence that the shorts
worn by this 13
year old child, who had apparently not yet reached the age of
puberty, played any part in the decision of the appellant
to violate
her.
23.
It was tragic that the complainant herself should have thought that
she was to blame for what happened and that her clothing
choice had
precipitated the outrage perpetrated upon her but it is even more
unfortunate that this understandable but false perception
on the part
of the complainant should have been supported by a court of law, one
of whose functions was to administer retributive
justice for the
crime committed against her.
24
It follows that this court is at large to impose an appropriate
sentence, unfettered by the discretion vested in the learned
judge.
Much has been written on the subject of appropriate sentences in rape
cases subject to the minimum sentencing regime. It
would be idle to
regurgitate the learning that has been produced. I shall confine
myself to a recital of what I regard to be the
principles relevant to
the case before us:
24.1
This case carries a minimum sentence of life imprisonment, unless
substantial and compelling circumstances are found to be
present. The
fact that Parliament enacted the minimum sentencing legislation was
an indication that it was no longer “business
as usual”.
A court no longer has a clean slate upon which to inscribe whatever
sentence it thinks fit for the specified crime.
It has to approach
the question of sentencing conscious of the fact that the minimum
sentence had been ordained as the sentence
which ordinarily should be
imposed, unless substantial and compelling circumstances are found to
be present.
3
24.2
No all-embracing definition of substantial and compelling
circumstances is possible. A court must impose the prescribed minimum
sentence unless it is satisfied that the circumstances of the
particular case render the prescribed sentence unjust or
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.
4
24.3
That the accused feels remorse for what he has done can constitute
such a circumstance. But there is a very great difference
between
regret and remorse.
5
By parity of reasoning, in my view, the absence of remorse can count
in a proper case against the accused.
24.4
The offender's immaturity, lack of experience, indiscretion and
susceptibility to being influenced by others reduce his
blameworthiness.
6
It hardly needs to be added that the full spectrum of the personal
circumstances of the accused are relevant in this context.
24.5
Sound penal policy requires consideration of a broad range of
sentencing options, from which an appropriate option can be selected
that best fits the unique circumstances of the case before the court
and needs to be victim-centred.
7
24.6
Rape of women and young children is a serious and prevalent crime.
Our courts have an obligation in imposing sentences for
such a crime,
particularly where it involves young, innocent,
defenceless
and vulnerable girls, to impose the kind of sentences which reflect
the natural outrage and revulsion felt by law-abiding
members of
society.
8
25.
In my view, the sentence imposed by the learned judge is
impermissibly lenient. The judge was clearly profoundly impressed
by
the courage of the complainant and the compassion shown by the
complainant for the appellant. But in doing so, in my view, the
learned judge lost sight of the serious nature of the charge of which
the appellant had been found guilty and had inadequate regard
for the
minimum sentencing regime and the just sense of outrage which the
circumstances of the appellant’s crime must engender
in the
minds of all right thinking people. And finally, to my mind of
exceptional importance, the appellant shows, to this day,
no
appreciation of or remorse for what he has done.
26.I
do not think that this is a case where the imposition of the
prescribed minimum of life imprisonment would be justified. The
following in my view constitute substantial and compelling
circumstances in the present context:
26.1
the youth of the appellant;
26.2
that the crime was committed without much prior planning and
premeditation;
26.3
that the appellant was a first offender and the commission of the
offence had adversely affected his career and his education;
26.4
that there were no serious physical injuries to the complainant;
26.5
that the complainant has forgiven the appellant.
27.
Counsel for the State asked for a sentence of eight to ten years
imprisonment. In my judgment a sentence of ten years would
be
appropriate in this case. I would therefore make the following order:
1.
The appeal by the appellant against his conviction is dismissed and
the conviction is confirmed.
2.
The appeal by the appellant against the severity of the sentence
imposed upon him is dismissed.
3.
The appeal by the State against the leniency of the sentence is
upheld. The sentence of five years imprisonment, three of which
are
suspended, is set aside and replaced with the following:
The
accused is sentenced to a period of imprisonment for ten years.
NB
Tuchten
Judge
of the High Court 3 November 2011
I
agree
Ismail
Judge
of the High Court 3 November 2011
I
agree. It is so ordered.
G
Webster
Judge
of the High Court 3 November 2011
MabenaA874.09
APPENDIX
Sections
51
and
53
of the
Criminal Law Amendment Act 105 of 1997
provide in
full as follows:
51.
Minimum sentences for certain serious offences.
(1)
Notwithstanding any other law but subject to ss (3) and (6), a High
Court shall, if it has convicted a person of an offence
referred to
in
Part I
of Schedule 2, sentence the person to imprisonment for
life.
(2)
Notwithstanding any other law but subject to ss (3) and (6), a
regional court or a High Court shall -
(a)
if it has convicted a person of an offence referred to in
Part II
of
Schedule 2, sentence the person in the case of -
(i)
a first offender, to imprisonment for a period not less than 15
years;
(ii)
a second offender of any such offence, to imprisonment for a period
not less than 20 years; and
(iii)
a third or subsequent offender of any such offence, to imprisonment
for a period not less than 25 years;
(b)
if it has convicted a person of an offence referred to in
Part III
of
Schedule 2, sentence the person, in the case of -
(i) a first offender, to imprisonment
for a period not less than 10 years;
(ii)
a second offender of any such offence, to imprisonment for a period
not less than 15 years; and
(iii)
a third or subsequent offender of any such offence, to imprisonment
for a period not less than 20 years; and
(c)
if it has convicted a person of an offence referred to in
Part IV
of
Schedule 2, sentence the person, in the case of-
(i)
a first offender, to imprisonment for a period not less than five
years;
(ii)
a second offender of any such offence, to imprisonment for a period
not less than seven years; and
(iii)
a third or subsequent offender of any such offence, to imprisonment
for a period not less than 10 years:
Provided
that the maximum sentence that a regional court may impose in terms
of this subsection shall not be more than five years
longer than the
minimum sentence that it may impose in terms of this subsection.
(3)
(a) If any court referred to in ss (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 may thereupon impose such lesser sentence.
(b)
If any court referred to in ss (1) or (2) decides to H impose a
sentence prescribed in those subsections upon a child who was
16
years of age or older, but under the age of 18 years, at the time of
the commission of the act which constituted the offence
in question,
it shall enter the reasons for its decision on the record of the
proceedings.
(4)
Any sentence contemplated in this section shall be calculated from
the date of sentence.
(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)
The provisions of this section shall not be applicable in respect A
of a child who was under the age of 16 years at the time
of the
commission of the act which constituted the offence in question.
(7)
If in the application of this section the age of a child is placed in
issue, the onus shall be on the State to prove the age
of the child
beyond reasonable doubt.
(8). . .
53.
Saving.
(1)
Sections 51 and 52 shall, subject to ss (2) and (3), cease to have
effect after the expiry of two years from the commencement
of this
Act.
(2)
The period referred to in ss (1) may be extended by the President,
with the concurrence of Parliament, by proclamation in the
Gazette
for one year at a time.
(3)
Any appeal against -
(a)
a conviction of an offence referred to in Schedule 2 of this Act and
a resultant sentence imposed in terms of section 51; or
(b)
a sentence imposed in terms of s 51 shall be continued and concluded
as if s 51 had at all relevant times been in operation.
Schedule
2 provides as follows:
PARTI
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 of 1977), 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; or
(d)
the offence was committed by a person, group of persons or syndicate
acting in the execution or furtherance of a common G purpose
or
conspiracy. 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)
by more than one person, where such persons acted in the execution of
furtherance or a common purpose or conspiracy;
(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)
by a person, knowing that he has the acquired immune deficiency
syndrome or the human immunodeficiency virus;
(b)
where the victim -
(i)
is a girl under the age of 16 years;
(ii)
is a physically disabled woman who, due to her physical disability,
is rendered particularly vulnerable; or
(iii)
is a mentally ill woman as contemplated in section 1 of the Mental
Health Act 18 of 1973; or
(c)
involving the infliction of grievous bodily harm PART II Murder in
circumstances other than those referred to in Part I.
Robbery
-
(a)
when there are aggravating circumstances; or
(b)
involving the taking of a motor vehicle.
Any
offence referred to in
s 13(f)
of the
Drugs and Drug Trafficking Act
140 of 1992
. If it is proved that -
(a)
the value of the dependence producing substance in question is more
than R50 000;
(b)
the value of the dependence-producing substance in question is more
than R10 000 and that the offence was committed by a person,
group of
persons, syndicate or any enterprise acting in the execution of
furtherance of a common purpose or conspiracy; or
(c)
the offence was committed by any law enforcement officer.
Any
offence relating to -
(a)
the dealing in or smuggling of ammunition, firearms, explosives or
armament; or
(b)
the possession of an automatic or semi-automatic firearm, explosives
or armament.
Any
offence relating to exchange control, corruption, extortion, fraud,
forgery, uttering or theft -
(a)
involving amounts of more than R500 000
(b)
involving amounts of more than R100 000, if it is proved that the
offence was committed by a person, group of persons, syndicate
or any
enterprise acting in the execution or furtherance of a common purpose
or conspiracy; or
(c)
if it is proved that the offence was committed by any law enforcement
officer -
(i)
involving amounts of more than R10 000; or
(ii)
as a member of a group of persons, syndicate or any enterprise acting
in the execution or furtherance of a common purpose or
conspiracy.
PART III
Rape in circumstances other than those referred to in
Part
I.
Indecent
assault on a child under the age of 16 years, involving the
infliction of bodily harm.
Assault
with intent to do grievous bodily harm on a child under the age of 16
years. Any offence in contravention of s 36 of the
Arms and
Ammunition Act 75 of 1969, on account of being in possession of more
than 1 000 rounds of ammunition intended for firing
in an arm
contemplated in s 39(2)(a)(i) of that Act.
PART
IV
Any
offence referred to in Schedule 1 to the
Criminal Procedure Act 51 of
1977
, other than an offence referred to in
Part I
, II or III of H
this Schedule, if the accused had with him or her at the time a
firearm, which was intended for use as such, in
the commission of
such offence.
1
The
full text of
ss 51
and
53
and Schedule 2 forms an appendix to this
judgment.
2
See
DPP v Thabethe
(619/10)
[2011] ZASCA 186
(30 September 2011) para 23 in relation to
a sentence which was suspended in its entirety.
3
S
V
Matyityi
2011 1 SACR 40
SCA paras 9 and 11 S
4
S
v Malgas
2001 1 SACR paras 20
and 22
5
Matyityi
para 13
6
Matyityi
para 14
7
Matyityi
para 16
8
Thabethe
para 22