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[2019] ZAECPEHC 1
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S v Heugh and Another (CC 17/2018) [2019] ZAECPEHC 1 (25 January 2019)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
In
the matter
between:
Case No: CC 17/2018
Date
heard: 24 January 2019
Date
delivered: 25 January 2019
THE
STATE
And
DONOVAN
HEUGH
WANDARAY
RUITERS
Accused
SENTENCE
Goosen
J:
[1]
The accused, having been convicted of kidnapping, rape and robbery
with aggravating
circumstances must now be sentenced. The task of
imposing a fair and just sentence is, generally speaking a difficult
task. A wide
range of factors must be taken into consideration;
competing interests must be weighed and balanced; and the sentence –
the
court’s punishment of the transgression – must be
constructed to achieve a range of purposes. The task is made the more
difficult because of the nature of the crime and the circumstances in
which it was committed. This is so because the graver the
offence and
the more egregious its effects the narrower the ambit for punitive
options which may properly and effectively remediate
the
transgression.
[2]
In this case, the task is complicated by the significant disparity in
ages between
the accused. Equivalent criminal conduct ought, so far
as reasonably possible, to be met by equivalent and commensurate
sanctions.
However, no easy calculus is available to achieve such
consistency. What is called for is a careful weighing of all of the
relevant
factors and the imposition of a sanction which achieves, so
far as can reasonably be achieved, an appropriate individuation of
the sentence so that it meets the exigencies of the crime and the
criminal.
[3]
The crimes for which the accused have been convicted are, without
doubt, grave offences
which are alarmingly prevalent and,
notwithstanding efforts at policing and the imposition of the
harshest of sentences, increasing
features of our daily lives. The
circumstances in which these crimes were committed are shocking. A
young woman waits for her public
transport outside of her home so
that she may go to work. A car pulls up. She is forced into the car;
robbed of her possessions;
driven to a secluded place; walked into
the bushes by two men and there raped repeatedly.
[4]
The seemingly opportunistic circumstances of the crimes are striking.
The victim became
a victim because she happened to be standing on the
side of the road alone. The perpetrators one moment going about their
business,
next seize upon this opportunity. Within a short period an
otherwise unremarkable morning is transformed into a shattering life
experience for the victim and her family. For the perpetrators, their
conduct will mark them and their families for life.
[5]
It is to redress this egregious and terrible conduct - however
imperfectly –
that the purpose of sentencing is directed. The
crime of rape, committed in circumstances where the victim is raped
by more than
one person or is raped more than once, carries with it a
prescribed sentence of life imprisonment. Robbery committed with
aggravating
circumstances carries a sentence of 15 years’
imprisonment. The crime of kidnapping carries a prescribed sentence
of 5 years’
imprisonment where it is committed in circumstances
involving the use of a firearm
[1]
.
However, each of these prescribed sentences does not apply where the
accused is a child under the age of 18 years at the
time of the
commission of the offence
[2]
.
That is the case in respect of accused 2.
[6]
In respect of accused 2 the provisions of the
Child
Justice Act
[3]
apply. Section 77 of that Act provides as follows:
“
(3) A child who
is 14 years or older at the time of being sentenced for the offence
may only be sentenced to imprisonment, if the
child is convicted of
an offence referred to in-
(a)
Schedule 3;
(b)
Schedule 2, if substantial and compelling reasons exist for imposing
a sentence of imprisonment;
(c)
Schedule 1, if the child has a record of relevant previous
convictions and substantial and compelling reasons exist
for imposing
a sentence of imprisonment.
(4) A child
referred to in subsection (3) may be sentenced to a sentence of
imprisonment-
(a)
for a period not exceeding 25 years; or
(b)
envisaged in section 276 (1) (i) of the Criminal Procedure Act.
(5) A child
justice court, imposing a sentence of imprisonment, must take into
account the number of days that the child has spent
in prison or a
child and youth care centre prior to the sentence being imposed.”
The
offences for which accused 2 has been convicted fall within the ambit
of Schedule 3 to the
Child Justice Act
. Subsection (4),
referred to above, recognises the need in a particular case to impose
a lengthy period of imprisonment for the
very serious offences
incorporated in Schedule 3 but imposes a limit on the period of each
such sentence.
[7]
In determining an appropriate sentence i.e. whether direct
imprisonment ought to be
imposed and the length of such sentence, a
court will have regard to the nature of the crime and its effect; the
circumstances
of the accused and factors relevant to his moral
blameworthiness; and to the interests of the society. It will then
seek to balance
these interests and to impose a sentence which, in
its judgment, meets the purpose of rehabilitating the accused while
serving
to deter future transgressions.
[8]
It is now trite that a court may depart from the statutorily
prescribed sentences
if it is satisfied that substantial and
compelling circumstances are present which warrant the departure.
Indeed, a court must
do so where it is satisfied that the imposition
of the prescribed sentence will be disproportionate and will bring
about an injustice
[4]
.
[9]
Accused 1 is 25 years of age. The accused is unmarried. He is the
father of a 9-year-old
daughter who resides with and is cared for by
her mother. He was self-employed as a barber at the time of the
commission of the
offences. He resided with his mother. He completed
grade 7 at school. As indicated in the pre-sentence report prepared
on behalf
of accused 2, to which further reference will be made
hereunder, the area in which both accused live is characterised by
poverty;
alcohol and drug abuse and gang-related activity. The
accused did not, however, suggest that this played a role in the
circumstances
giving rise to the offences. He has 4 previous
convictions. On 28 July 2011, he was convicted of robbery and
sentenced, in
terms of s 276(i) of the
Criminal
Procedure Act
[5]
to 3 years’ imprisonment. On 11 November 2013, he was convicted
of theft for which he received a sentence of 18 months correctional
supervision of which 6 months was suspended. On 18 June 2014, he was
convicted of malicious damage to property and housebreaking
with
intent to steal and theft. For the latter he received a sentence of
36 months imprisonment of which 12 months was suspended
for 4 years.
Finally, on 13 June 2016, he was convicted of a contravention of a
domestic violence order issued in terms of the
Domestic
Violence Act
[6]
.
He was sentenced to 9 months direct imprisonment.
[10]
These previous convictions display prior criminal conduct involving
dishonesty and violence.
The criminal conduct commenced at a young
age and both direct imprisonment and deterrent sentences do not
appear to have had the
desired corrective effect. On the contrary,
the pattern of conduct suggests a troubling progression in the
seriousness of the offences
committed.
[11]
The circumstances in which the offences were committed and the impact
upon the victim far outweigh
the personal circumstances of the
accused. In my view, these circumstances, even weighed cumulatively,
do not establish substantial
and compelling circumstances.
[12]
The psychological impact of the crimes upon the victim is serious.
She testified to her fear
of leaving her home. She explained that she
had to change her work since she no longer feels safe to take public
transport. She
now works close to her home. The victim impact
assessment statement contained in the pre-sentence report reflects
the severe psychological
trauma which the complainant has experienced
and continues to suffer. She states that the crimes have been
devastating and that
her life has been drastically changed. It
appears that in the period after the rape the complainant exhibited
certain ‘bizarre’
behaviour. Her employer found that she
was responding harshly towards the children; that she was
“sexualising’ and
misinterpreting innocent child
behaviour and that she was conflictual. She became emotional when
describing this to the probation
officer and ascribed it to the
trauma she suffered. The consequence was that she could no longer
work with children, which was
what she had trained to do. She is
currently undergoing therapy to enable her to cope.
[13]
This post-traumatic behaviour is to be contrasted with a report
received from the complainant’s
previous employer, where she
had worked prior to the incident. That report describes her as one of
the best teachers; that she
was hardworking and energetic and that
her work with children was faultless. It is apparent from these
contrasting reports that
the complainant remains deeply traumatized
by events giving rise to this case and that her psychological
suffering persists.
[14]
Our society rightly expects that persons convicted of such terrible
crimes – crimes which
shatter the lives of the victim and
negate the promise of peace and security for women and children,
should suffer significant
punishment. It is with this in mind, that
the legislature has prescribed certain sentences. They should not be
departed from for
flimsy or insubstantial reasons.
[15]
In my view, taking into account the nature of the crimes and their
effect upon the victim, I
am unable to find, in the case of accused 1
that there are substantial and compelling reasons to depart from the
prescribed sentences.
I accept that accused 1 is still a relatively
young man. He is however not a youth whose callow immaturity might
explain his aberrant
conduct. He is no stranger to such conduct and
he has experienced the effects of punishment. The fact that it has
not caused him
to alter his behaviour does not augur well.
[16]
In all the circumstances I am satisfied that in respect of each of
those offences for which a
sentence is prescribed, that sentence is
both proportionate and appropriate. In respect of the other offence,
namely the pointing
of a firearm, a short period of direct
imprisonment is warranted. In the case of accused 1 all of the
sentences will run concurrently
with the prescribed sentence in
respect of the rape charge.
[17]
Accused 2 stands in a wholly different position to accused 1. He was
16 years old at the time
of the commission of the offences. An
abridged birth certificate handed in as exhibit “F”
reflects his birth date as
21 December 2000. The offences were
committed on 17 July 2017. He has no previous convictions. A
pre-sentence report (exhibit “G”)
was prepared by a
probation officer. It is based on extensive interviews conducted with
members of the accused’s family.
It records that the accused is
the only child of his parents. The accused’s father was
tragically killed in 2002 when the
accused was 2 years old. He was
thereafter cared for by his mother who passed away in 2009. Following
an investigation into the
social circumstances of the accused, he was
found to be a child in need of care. His paternal aunt and uncle took
him into foster
care. He has been living with them and their four
children since then. The economic circumstances of the household are
poor. The
family survives on the single income of his foster father
and a child support grant.
[18]
The accused is described as a quiet, introverted child who functions
well within the family and
participates in church-related activities.
It appears that he was exposed, at an early age, to drug and alcohol
abuse by his parents
and that his intellectual capacity, described as
borderline, is mildly impaired. He attended a school for children
with special
needs between 2012 and 2016.
[19]
According to the report the accused started using drugs, particularly
marijuana, approximately
4 years ago. Despite being warned about this
and attempts by his foster parents to prevent it, he has continued.
He lost interest
in school and ‘dropped-out’ as a result.
He has taken to associating with youth in the area where he lives and
has
at times spent time at a house where they gather to smoke
marijuana.
[20]
He is the father of a child who will shortly be 1 year old. Since he
is not employed and has
no means to support the child his foster
parents provide the mother of the child with some assistance. In
regard to his attitude
to the offences, the report states that he
does feel regret at his actions. Although he maintains his innocence
in relation to
the rape charge, he admits his role in the robbery and
kidnapping.
[21]
In dealing with sentencing options the author of the report expresses
the view, in the light
of the seriousness of the crimes, that direct
imprisonment would be the only appropriate sentence. The report notes
however that
his personal circumstances, his age and his role in the
commission of the offences are strongly mitigating.
[22]
As indicated in the main judgment, the complainant testified that
accused 2 was a reluctant participant
in the rape. She explained that
he was threatened by accused 1. Although it could not be found that
accused 2’s conduct was
driven by duress establishing a defence
of necessity, it must be accepted that he acted under the influence
of his older co-accused.
This accords with the assessment of
his intellectual capacity set out in the pre-sentence report. It also
accords with the account
of him having taken to associating with
particular elements in the neighbourhood. Accordingly, substantial
mitigating circumstances
are present which bear upon accused 2’s
moral blameworthiness.
[23]
Although he has been convicted of very serious offences, the
consequences of which will severely
impact the victim in the long
term, it seems to me that there is a prospect that accused 2 may be
rehabilitated. He has to some
extent taken responsibility for his
conduct and he has the benefit of a caring and considerate family.
Notwithstanding the existence
of strongly mitigating features a
sentence of imprisonment is, in my view, the only appropriate
sentence. I am mindful of the injunction
provided by the provisions
of the
Child
Justice Act
[7]
to impose imprisonment upon a child only as a last resort. In my
view, the nature of the offences for which accused 2 has been
convicted, requires that such a sentence be imposed. If indeed
accused 2 is to be appropriately rehabilitated then such corrective
programmes as are available in prison, will need to run their course.
[24]
Taking into account his youthfulness, his particular personal
circumstances and the role that
he played in the commission of the
offences I consider that a period of 12 years’ imprisonment for
rape will be appropriate.
I consider that a period of half the term
of imprisonment for robbery which is ordinarily prescribed, but for
the age of the accused,
would also be appropriate. In order to
mitigate the cumulative effect of the term of imprisonment to be
served in respect of the
robbery and kidnapping charges I intend to
order that these sentences be served concurrently with the sentence
in respect of rape.
[25]
In the result the following sentences are imposed:
1.
Accused
1
Pointing of a firearm
-
1-year
imprisonment;
Kidnapping
- 5
years’ imprisonment;
Rape
- life
imprisonment;
Robbery with aggravating
circumstances -
15
years imprisonment;
Robbery with aggravating
circumstances -
15 years imprisonment;
It is ordered that the
sentences on counts 1, 2, 6 and 7 run concurrently with the sentence
imposed on count 3.
2.
Accused
2
Kidnapping
- 3 year’s imprisonment;
Rape
- 12 years’ imprisonment;
Robbery with aggravating
circumstances - 7
years’ imprisonment
It is ordered that the
sentences imposed on counts 2 and 6 run concurrently
with the sentence
imposed on count 4.
G.G.
GOOSEN
JUDGE
OF THE HIGH COURT
Appearances:
Obo
the State:
Adv. M. Driman
National Director of
Public Prosecutions
Obo
Accused 1:
Prof. D. Erasmus
Instructed
by:
Legal-Aid South Africa, Port Elizabeth
Obo
Accused 2:
Adv J. Coertzen
Legal-Aid South
Africa, Port Elizabeth
[1]
S 51(1) and (2) of Act 105 of 1997 read with Schedule 2 to the Act.
[2]
S 51(6) of Act 105 of 1997 (as amended)
[3]
Act No, 75 of 2008
[4]
See generally S v Malgas
2001 (1) SACR 469
(SCA); S v Vilikazi 2009
(1) SACR 552 (SCA)
[5]
Act No 51 of 1977
[6]
Act No, 116 of 1998
[7]
Act No, 75 of 2008