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[2023] ZAECMKHC 22
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S v Wynkwardt (Sentence) (CC51/2021) [2023] ZAECMKHC 22 (10 March 2023)
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IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE
DIVISION: MAKHANDA]
CASE
NO. CC51/2021
In the matter between:
THE
STATE
and
ALBERTO WYNKWARDT
Accused
SENTENCE
JOLWANA J:
Introduction.
[1]
The accused was arraigned in this Court on two counts of rape in
contravention of section 3, read with
sections 1
,
56
(1),
57
(1),
58
,
59
and
60
of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act, 32 of 2007
and one count of house- breaking with
intent to commit rape in contravention of
section 3
, read with
sections 1
,
56
(1),
57
(1),
58
,
59
and
60
of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007
. The
State further invoked the provisions of
section 51
(1), read with
Part 1
of Schedule 2 of the Criminal Law Amendment Act 105 of 1997
(the Minimum Sentences Act) thus indicating its intention to ask the
court to impose a discretionary minimum sentence of life imprisonment
upon the accused in the event of a conviction on counts 1
and 3.
This was on the basis that the alleged rapes involved the infliction
of grievous bodily harm and the victims was raped
more than once by
the accused. Furthermore, the victim was particularly
vulnerable by virtue of the fact that she is blind.
The
plea.
[2]
Before the accused pleaded to the charges, the court sought to
establish from him if he understood the charges put to him and
he
confirmed that he understood all the charges. The court
also explained to the accused the implications of the State’s
invocation of section 51 (1) of the Minimum Sentences Act and sought
his confirmation that indeed he understood that he may be
sentenced
to life imprisonment in the event of a conviction in respect of
counts 1 and 3. His answer was in the affirmative.
His
legal representative confirmed that the accused’s plea on all
the charges was in accordance with his instructions and
that he had
also discussed the implications of section 51 (1) of the Minimum
Sentences Act with the accused who indicated to him
that he
understood them. The accused was thereupon asked to plead to
the charges. He pleaded guilty to all three charges.
[3]
His legal representative handed up to the court the accused’s
written statement in terms of
section 112
(2) of the
Criminal
Procedure Act 51 of 1977
. That statement was also read into the
record and interpreted to the accused.
Section 112(2)
reads as
follows:
“
If an accused or
his legal adviser hands a written statement by the accused into
court, in which the accused sets out the facts
which he admits and on
which he has pleaded guilty, the court may, in lieu of questioning
the accused under subsection (1) (b),
convict the accused on the
strength of such statement and sentence him as provided in the said
subsection if the court is satisfied
that the accused is guilty of
the offence to which he has pleaded guilty: Provided that the court
may in its discretion put any
question to the accused in order to
clarify any matter raised in the statement.”
[4]
The State indicated its acceptance of the plea of guilty to all the
charges by the accused and his
section 112
(2) statement including
the facts alleged therein about how the offences were committed as
being in accord with its own information
and docket contents.
However, counsel for the State made it clear that the State did not
accept his indication therein that
he was pleading guilty out of
remorse for the crimes he admitted committing. The accused was
consequently convicted on all
three charges on the strength of his
section 112
(2) statement as the court was satisfied that indeed the
accused is guilty of the offences with which he was charged and to
which
he was pleading guilty. It now behoves of this Court to
consider an appropriate sentence to be imposed upon the accused and
sentence him accordingly.
The
sentencing principles.
[5]
Courts exercise their penal jurisdiction according to what has become
known as the
Zinn
[1]
triad consisting of the crime, the offender and the interests of
society. The basic tenets of the Zinn triad have evolved
over
the decades since
Zinn
into
accepted sentencing principles that a sentencing court must apply in
order to properly consider and thus make a decision on
what a just,
balanced and fair sentence should be in light of the circumstances of
a particular case. The sentencing principles
in effect mean
that such a sentence as a sentencing court considers to be
appropriate must be individualised taking into account
the crime or
crimes for which the accused has been convicted, the personal
circumstances of the accused himself and what is in
the best
interests of the society. In
Tsotetsi
[2]
Myburgh AJ with whom Steyn J concurred gave what can fairly be said
to be an elaborate exposition of our basic sentencing principles
as
follows:
“
(a) The sentence
must be appropriate based on the circumstances of the case. It
must not be too light or too severe.
(b) There must be an
appropriate nexus between the sentence and severity of the crime,
full consideration must be given to all mitigating
and aggravating
factors surrounding the offender. The sentence should thus
reflect the blameworthiness of the offender and
be proportional.
These are the first two elements of the triad enunciated in
State
v Zinn
.
(c) Regard must be had to
the interest of the society (the third element of the Zinn triad).
This involves a consideration
of the protection society so
desperately needs. The interests of society are deterrence,
prevention, rehabilitation and retribution.
(d) Deterrence, the
important purpose of punishment, has two components, being the
deterrence of both the accused from re-offending
and the deterrence
of would be offenders.
(e) Rehabilitation is a
purpose of punishment only if there is a potential to achieve it.
(f) Retribution, being a
society’s expression of outrage at the crime, remains of
importance. If the crime is viewed
by society as an abhorrence,
then the sentence should reflect that. Retribution is also
expressed as the notion that the
punishment must fit the crime.
(g) Finally, mercy is a
factor. As humane and balanced approach must be followed.”
It is with these
sentencing principles in mind that I must consider what an
appropriate sentence should be that would be a fitting
and just
sentence that must be imposed upon the accused person.
The
legal position on minimum sentences.
[6]
As indicated earlier in this judgment, the State, in indicting the
accused, also invoked the provisions of section 51 (1) of
the Minimum
Sentences Act in respect of counts 1 and 3. Our authority on
the application of section 51 is of course
Malgas
[3]
in which Marais JA gave a detailed exposition on section 51 exactly
21 years ago. He thereafter stated the legal position
on the
consideration and application of the minimum sentences legal
framework in cases in which minimum sentences are applicable
in terms
of the Minimum Sentences Act. He said:
“
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,
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 consisted 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.”
[7]
Having set out in quite some detail the legal position regarding the
sentencing process itself as well as the legal position
pertaining to
the approach that a sentencing court must follow where section 51 is
concerned, I turn now to look at all the relevant
specific facts of
this case.
The
crime.
[8]
The first leg of the Zinn triad is the nature of the crime for which
an accused has been convicted. The section 112 statement
of the
accused gives a chilling account of what happened on or about the 4
July 2020 at no.2[…] P[…] C[…]Street
in A[…],
the home of the then 59 year old blind rape victim. The
complainant, on that fateful night, went through
a horrifying ordeal
of being assaulted and raped by a person who was born and grew up in
front of her. Her home and that
of the accused are in the same
street separated by a number of houses in between. He raped her
on two separate occasions
that night. When the victim screamed
during the first rape incident he closed her mouth with his hands and
raped her.
He also not only assaulted her with his hands, he,
on his account of the events of that incident, also kneed her with
his knees
in her stomach while raping her because “she was
making noise.” The rape ordeal continued until the
accused was
interrupted by the complainant’s then 12 year old
son, S[…] who arrived at his home to a disturbingly disgusting
sight
when he caught the accused raping his mother. S[….],
presumably to try and bring to an end the harrowing ordeal he
saw his
own mother going through at the hands of a person he himself knew
very well, he told the accused that his father and his
sister were on
their way home. Indeed the accused stopped. He got dressed up
quickly and left.
[9]
As if what the accused did to the helpless and vulnerable complainant
was not horrible enough, he came back after realizing
that S[…]
had lied to him in saying that his father and sister were on their
way home. On this second occasion in
order to commit the second
rape incident, the accused found a broken window at the complainant’s
homestead. He opened
that window and entered the house.
He raped the complainant again. The complainant tried to fight
him off by hitting
him with a mug on his face. He then stopped,
got dressed and left. At some point he was arrested.
[10]
This case represents some of the most odious crimes in our country.
The victim was both old and blind both of which made
her particularly
vulnerable. Her attacker, the accused was the last person she
could have thought could be dangerous to her
as they knew each other
very well and lived in the same street. His presence at her own
home would have given her a false
sense of safety and security.
Her son also clearly operated under the same false sense of trusting
someone very dangerous
to them. He was also lulled into a false
sense of security which is why he left his frail and blind mother
with the accused.
The complainant and Siyabulela were both
obviously oblivious to the ominous danger that was lurking in their
midst which the accused
represented. While the accused knew
that the first time he raped her he got caught by S[…], he
ignored all of that
and decided to come back and abuse his victim for
the second time taking advantage of her blindness and frailty both of
which made
her particularly vulnerable. He came back again
after he had already raped her and left after the first incident when
S[…]
walked into a disturbing scene as I said before to rape
her again.
[11]
Some exhibits were handed up to court to be part of the court record
by the prosecutor by agreement with the accused’s
legal
representative. Briefly, those exhibits include an affidavit in
terms of
section 212
(4) of the
Criminal Procedure Act deposed
to by
Dr Fandi Jamal. Attached to that affidavit is a medico-legal
examination report completed on 4 July 2020. According
to the
said report, the clinical findings were that the complainant had
multiple bruises on her body. The doctor’s
conclusion was
that the complainant had been physically assaulted. The
conclusions under gynaecological examination are that
the complainant
had multiple bruises on her private parts and that she had been
raped. Another one of the exhibits was a
section 212
affidavit
deposed to by warrant officer Mquteni who is a forensic analyst and a
reporting officer working at the biology section
of the Forensic
Science Laboratory in Gqeberha. That evidence of the DNA
analysis also implicated the accused in that his
DNA was found in the
swab taken from the complainant. The accused’s DNA was
also found in the complainant’s tights
which I understand to be
an item of clothing that is an undergarment.
Mitigating
factors.
[12]
The accused testified in mitigation of sentence. His evidence
was that he is now 27 years old and was 26 years old at
the time of
the incident. He is not married. He has a one year old
son who lives with his mother. Before his
arrest he stayed at
no.3[…] P[…] C[…] Street in A[…] with his
father and his mother. He dropped
out of school at grade 11 due
to financial difficulties. He was forced by circumstances to
drop out of school to go and look
for employment. At the time
he committed these offences he worked at S[…] P[…] on a
casual basis where he earned
R1900.00 per month. He used this
income to contribute in the upbringing of his son and also
contributed at his home with
the household expenses. He
testified that he admitted that he committed these offences and was
sorry about what happened.
What happened was a mistake on his
part. He was hoping that in sentencing him, the court would be
merciful to him.
He testified that he knows that what he did
was wrong and it will never happen again in future.
[13]
Under cross-examination, he testified that at the time of the
offences he had a relationship with the mother of his child.
He
knew the complainant even though he did not visit her house
regularly. He went there on that day with S[…].
He
confirmed that S[…] caught him raping the complainant. S[…]
found him raping his mother at his home.
He said that he raped
her in a moment of weakness. He knew that she is blind.
He would like the court to accept that
he is sorry about what he did
which he said was why he pleaded guilty. He testified that he
was remorseful about what he
did to the complainant. He pleaded
guilty out of remorse for his actions.
[14]
It was put to him that on 22 November 2021 the State withdrew the
charges against him. After the charges were withdrawn
he
instructed his attorney to institute civil proceedings suing the
State for R1 000 000.00 for unlawful arrest, detention
and
malicious prosecution. He confirmed giving such instructions to
his attorney to sue the State but he later changed to
say that it was
his attorney that took the decision to sue the State. He
however, maintained that he is sorry for what he
did to the
complainant. He confirmed under re-examination that he knows
the complainant and the complainant knows him.
For that reason
it was not easy for him to plead guilty because he and the
complainant know each other and they stayed in the same
street.
In answering some questions from the court, Mr Wynkwardt testified
that he went to the complainant’ s homestead
accompanying S[…]
because he was young and it was at night. The time was around
21:00 at night.
Aggravating
factors.
[15]
In aggravation of sentence, the State called the complainant to
testify. Her evidence was that she was born in 1961.
She
resides at no.2[…] P[…] C[…] Street in A[…]
with her husband, her three children and four grandchildren.
S[…] is the last born of those three children. He is now
13 years old and will turn 14 years old in December 2023.
She
testified that she is blind. However, she was not born blind.
Her left eye was somehow inflicted by some disease.
That
disease affected the right eye with the result that she is now blind
on both eyes. She estimated that she started being
blind in
about 2000 or thereabout. She is assisted at home by her
husband and her three children with her basic needs.
She
testified that she regarded the accused as her own baby as he would
visit her home. He grew up in front of her and she
trusted him
a lot as he regarded him as her own child. She felt abused by
the accused when he raped her. She became
sick with shock and
even now she is still not well. She testified that the accused
assaulted her on her face as a result
of which she bled and her face
was swollen.
Defence’s
submissions in mitigation of sentence.
[16]
It was submitted on behalf of the accused in mitigation of sentence
that he pleaded guilty and therefore did not waste the
court’s
time. The accused could not apologise at the first opportunity
he had because it was not easy for him to do
so due to the fact that
the accused and the victim know each other. The accused lived
in the same street as the complainant
and he grew up in front of
her. However, today in court he apologised to the complainant
and to the court thus accepting
that what he did was wrong. He
is a first offender and is therefore a good candidate for
rehabilitation. He must therefore
be given another chance as he
had testified that he will never do what he did again. He
pleaded guilty out of genuine remorse.
The offences were not
pre- planned but were committed in a spare of the moment. He
had been in custody for three weeks since
his arrest. He was 26
years old when he committed the offences and therefore was relatively
young. It was submitted
that all these factors viewed
cumulatively, amount to substantial and compelling circumstances to
justify a departure by the court
from the imposition of the
prescribed minimum sentences in respect of counts 1 and 3.
The
State’s submissions in aggravation of sentence.
[17]
On the other hand the State submitted that these offences are all
very serious crimes. The complainant was 59 years old
at the
time of the offences. She is blind and was raped by the accused
who knew that she is blind. She went through
the ordeal of
being raped by someone who was well known to her whom she regarded as
one of her own children. She trusted
the accused only to be
raped by him on two separate occasions that night. She was
raped at her own home in her own sanctuary,
a place in which she
thought she was safe. The rape included the complainant being
assaulted and at some point the accused
put his knee on her stomach
to force her to stop making noise and continued raping her.
Even after he had been told that
the complainant’s husband and
her daughter might be on their way home, the accused went back to the
victim’s home and
raped her again.
[18]
Counsel for the State further submitted that the accused was not
genuinely remorseful. After his arrest in 2020 he did
not plead
guilty when he had an opportunity to do so. In November 2021
the charges against the accused were withdrawn for
some reason.
Since 2020, he did not apologise throughout until he apologised today
in court. Instead, consequent upon
the withdrawal of the
charges, the accused instituted civil proceedings against the State
claiming a substantial amount of money
from the State for unlawful
arrest and detention as well as malicious prosecution. The
State submitted that all these factors
showed the accused as someone
who is opportunistic and will take advantage of any situation for his
own benefit. He is therefore
not genuinely remorseful. He
only pleaded guilty after being aware that there was DNA analysis
evidence which implicated
him. His personal circumstances are
far outweighed by the seriousness of these offences.
[19]
Counsel for the State further submitted that the crimes for which the
accused has been convicted detrimentally affected not
only the
complainant but also Siyabulela as well who witnessed his mother
being raped by the accused. Reference was made
to reports by Ms
Karen Andrews, the clinical psychologist who assessed the complainant
and Siyabulela which had been submitted
to court as part of the
exhibits. In her report she makes the following telling
observations about S[…]:
“
S[…] was
negatively affected by witnessing his mother being raped. He
becomes stressed very easily, he suffers from
nightmares, he gets
into fights with other children and he has lost weight. The
worst observation is that he has been found
smoking the drug called
“choef”. He was not doing this before the events of
this case.”
The
society.
[20]
The State emphasized that the society needs protection from the
accused. The reality is that our courts are confronted
daily
with cases of violent abuse and sexual abuse of women, the elderly,
the disabled, children and even babies. Clearly
the society is
abhorred with all these crimes. The society looks up to the
courts to pass fitting sentences to such criminals.
Those who
are convicted of such crimes must be imprisoned for a lengthy period
of time. This will give the society some feeling
of protection
from such people as the accused who commit such offences. That
protection would be by this Court imposing the
prescribed minimum
sentences as the accused being a first offender in this case and his
plea of guilty do not, on their own justify
a deviation from the
prescribed minimum sentences without more. The State submitted
that there were no substantial and compelling
circumstances as would
justify a departure from the prescribed minimum sentences in this
case.
Analysis.
[21]
Something more needs to be said about the accused’s expression
of remorse at the very onset. Firstly, it is difficult
to
understand from his evidence what has changed from the time these
offences were committed to the date on which he testified
in
mitigation of sentence. When he testified he made no attempt to
open up about the events of that day by taking the court
into his
confidence and testify about how he got to be in the complainant’s
home that night and how he ended up raping an
elderly and blind
woman. Only he could have enlightened the court about the
circumstances in which the crimes were committed.
Even after he
chose to testify in mitigation of sentence the court is still non the
wiser about what led to him committing the
offences for which he has
been convicted. There clearly has to be a point from which one
moves from being this brutal, merciless
and shameless rapist who
attacked and raped an elderly and blind woman he knew very well to a
supposedly genuinely remorseful person.
The court heard none of
that from the accused precisely because he said very little more than
that he is sorry for what he did
and that the court should be
merciful to him.
[22]
The proposition that his plea of guilty was moved by his remorse is
patently without any demonstrable basis. In fact
it clearly is
an attempt on the part of the accused at bargaining with the court
for lighter sentences. His remorse appears
to be feigned
remorse that is craftily designed to serve his selfish ends which is
to get lighter sentences. My impression
of his expression of
remorse is that of someone who, on the assessment of the evidence the
State would have led against him, realised
that he had nowhere to run
and chose for himself the only option that could possibly result in
lighter sentences. That option
was to plead guilty. The
facts are that there was an eye witness, S[…] who, although he
is a child, could testify
and give an eye witness account of what he
saw the accused doing to his mother that night. The report of
Ms Karen Andrews
makes it clear that with appropriate measures in
place, Siyabulela “has the mental capacity to give evidence in
Court”.
There is also the DNA evidence that implicated
him in these offences. Thirdly, the victim herself knows who
raped her and
would have testified if the accused had not pleaded
guilty. I simply do not think that his plea of guilty had
anything to
do with true penitence. If he was genuinely
remorseful, it is difficult to appreciate why he waited for more than
two years
since the date of the incident only to express his remorse
during the trial.
[23]
On the accused’s expression of remorse, counsel for the State
referred the court to the case of
Matyityi
[4]
in which the Supreme Court of Appeal stated the approach on the
assessment of remorse as follows:
“…
It had
been held, quite correctly, that a plea of guilty in the face of an
open and shut case against an accused person is a neutral
factor.
The evidence linking the respondent to the crimes was overwhelming.
In addition to the stolen items found at
the home of his girlfriend,
there was DNA evidence linking him to the crime scene, pointings-out
made by him and his positive identification
at an identification
parade. There is, moreover, chasm between regret and remorse.
Many accused persons might well
regret their conduct, but that does
not without more translate to genuine remorse. Remorse is a
gnawing pain of conscience
for the plight of another. Thus genuine
contrition can only come from an appreciation and acknowledgement of
the extent of one’s
error. Whether the offender is
sincerely remorseful and not simply feeling sorry for himself or
herself at having been caught,
is a factual question. It is to
the surrounding actions of the accused, rather than what he says in
court, that one should
rather look. In order for the remorse to
be a valid consideration, the penitence must be sincere and the
accused must take
the court fully into his or her confidence.
Until and unless that happens, the genuineness of the contrition
alleged to exist
cannot be determined. After all before a court
can find that an accused person is genuinely remorseful, it needs to
have
a proper appreciation of inter alia: what motivated the accused
to commit the deed; what has since provoked his or her change of
heart, and whether he or she does indeed have a true appreciation of
the consequences of those actions.”
[24]
I am therefore not persuaded that the remorse expressed by the
accused is a genuine remorse at all. He appears as somebody
who
is carefully looking out for himself and regretting the fact that he
has been caught and would probably be sentenced to a lengthy
term of
imprisonment. It can therefore be taken out of the equation in
the process of determining an appropriate sentence
in the
circumstances of this case. This also applies to his plea of
guilty in which it is very clear to me that the accused
had a lot of
evidence that he would have to refute if he pleaded not guilty and
the State witnesses testified. On a careful
assessment of the
facts of this case it does not appear that the State would have had
any difficulties in proving its case beyond
reasonable doubt if he
had pleaded not guilty. It seems to me that in pleading guilty,
he did the State no favour for which
he needs to be credited.
He would have faced a mammoth task of dealing with what would have
been an avalanche of evidence
against him from State witnesses.
As the court said in
Matyityi
, his plea of guilty must
consequently be a neutral factor.
[25]
As for the accused’s other personal circumstances, I find
nothing substantial or compelling about them. They are,
restated briefly that he is first offender. He has a child who
does not live with him. He is therefore not even a caregiver
to
that child. It is evidently the mother of the child who looks
after that child. In any event the gravity of the
offences he
committed militates against any consideration of the personal
circumstances that the accused mentioned in his testimony
as a basis
for the departure from the prescribed sentences. They must
indeed recede into the background in light of the seriousness
of
these offences. Besides, the interests of the society are
equally an important consideration. The rampant violent
crimes
including rape in this country require that in deserving cases, such
crimes should receive the minimum sentences prescribed
by the
Legislature. Our society is abhorred at the rape of women and
children in this country. This is especially because
these
types of victims are attacked and abused for no reason other than
their vulnerability. The society needs protection
from such
criminal deviance. The complainant in this case was raped on
two separate occasions in the same night after the
accused realised
that she was a soft target as her husband and her older children V[…]
and N[…] were not at home.
The presence of the 12 year
old S[…] did not deter the determined accused from continuing
with his dastardly acts of victimising
an elderly, blind and helpless
woman.
[26]
In
Vilakazi
[5]
Nugent JA said:
“
The personal
circumstances of the appellant so far as they are disclosed in the
evidence, have been set out earlier. In cases
of serious crime
the personal circumstances of the offender, by themselves, will
necessarily recede into the background.
Once it becomes clear
that the crime is deserving of a substantial period of imprisonment
the question whether the accused is married
or single, whether he has
two children or three, whether or not he is in employment, are in
themselves largely immaterial to what
that period should be and those
seem to me to be the kind of ‘flimsy’ grounds that
Malgas
said should be avoided.”
[27]
The conduct of the accused after the charges against him were
withdrawn is a relevant aggravating consideration in my view.
This is so because it points to the mindset of the accused about the
crimes he committed. He testified under cross-examination
that
he did instruct his attorneys to institute civil proceedings against
the State for unlawful arrest and other heads of damages.
How
he could possibly think that, in the circumstances of this case and
knowing what he knew, his arrest was unlawful and he deserved
to be
compensated by the State for the fact that police arrested him is
mind boggling. Essentially, he sought to get compensation
as a
direct result of his criminal misdemeanour. He wanted the State
to be ordered to pay him for arresting him after he
had committed
these grievously violent crimes. Looking at all the
circumstances of this case especially the behaviour of
the accused in
general after he committed these offences, I am not convinced that he
is a good candidate for rehabilitation even
though it is always
difficult to say that with any degree of certainty.
[28]
Before I conclude, I do need to point out that a physically disabled
person such as the complainant in this case is specifically
catered
for in
Part 1
of Schedule 2.
Part 1of
Schedule 2 provides in
part as follows:
“
Rape as
contemplated in section 3 of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 2007-
…
(b) where the victim-
…
(ii) is a physically
disabled person who, due to his or her physical disability is
rendered particularly
vulnerable.”
The complainant is blind
which is a physical disability as contemplated in Part 1 of Schedule
2.
[29]
Secondly, there can be no debate about whether or not the accused
raped the complainant more than once. After the first
rape
incident the accused left the complainant’s home. He
returned later although there is no specificity about the
time that
elapsed after he left and before he returned and raped the
complainant for the second time.
[30]
This issue was, in any event, put to bed in this Court in the case of
Ncombo
[6]
.
In that case Bloem J with whom I am in respectful agreement, put the
legal position as follows:
“
However, the
evidence does support a finding that the appellant raped the
complainant twice. The first rape was completed
after the
appellant ejaculated and ‘he climbed off from me or get out
from me’. The appellant then had a discussion
with the
complainant about her reporting him to her mother and her mother
calling the police. It was only after that discussion
that the
appellant penetrated her again. Although there is no evidence
as to the time lapse between the withdrawal of his
penis at the
conclusion of the first rape and the subsequent insertion of his
penis, the discussion that he had with the complainant
caused a
sufficient interruption in the appellant’s conduct for those
incidents to constitute two separate acts of rape.
When the
appellant climbed onto the complainant again and penetrated her ‘he
… formed the intent to rape again, even
if the second rape
[may have taken] place soon after the first and at the same place’.”
[31]
In the absence of substantial and compelling circumstances and they
are non-existent in this case, a departure from prescribed
minimum
sentences is not justified.
[32]
In the result the accused is sentenced as follows:
1. In respect of count 2,
housebreaking with intent to commit rape, you are sentenced to 5
years imprisonment.
2. In respect of count 1,
rape, you are sentenced to life imprisonment.
3. In respect of count 3,
rape, you are sentenced to life imprisonment.
4. It is directed that
the sentences imposed in respect of counts 2 and 3 shall run
concurrently with the sentence imposed in respect
of count 1.
5. In terms of
section
103
(1) of the
Firearms Control Act 60 of 2000
, Mr Wynkwardt is unfit
to possess a firearm.
______________________
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for State: M.M. VAN ROOYEN
Instructed
by: Director of Public Prosecutions
MAKHANDA
Counsel
for the Accused: H. CHARLES
Instructed
by: Legal Aid South Africa
MAKHANDA
Date
heard: 07 March 2023
Delivered:
10 March 2023
[1]
S v Zinn
1969 (2) SA 537
A.
[2]
S v Tsotetsi
2019 (2) SACR 594
(WCC) at page 604 para 29.
[3]
S v Malgas
2001 (1) SACR 469
(SCA) at 481 f-j to 482 a-f.
[4]
S v Matyityi
2011 (1) SACR 40
(SCA) at 46 h to 47 a-d.
[5]
S
v Vilakazi
2009 (1) SACR 552
at 574 c-d.
[6]
S v Ncombo
2017 (1) SACR 683
(ECG) at 688 d-f.