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[2022] ZAFSHC 274
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Du Plessis v S (A25/2022) [2022] ZAFSHC 274 (11 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A25/2022
REPORTABLE:
YES/NO
OF INTEREST TO
OTHER JUDGES: YES/NO
CIRCULATE TO
MAGISTRATE: YES/NO
In the matter
between:
PETRUS
A DU PLESSIS
Appellant
and
THE
STATE
Respondent
CORAM:
VANZYL,
Jet MPAMA, AJ
HEARD
ON:
25
JULY 2022
DELIVERED
ON:
11
OCTOBER 2022
JUDGMENT
BY
: MPAMA,
AJ
[1]
This
matter concerns an appeal against sentence. The appellant was charged
in the Regional
Court,
sitting
in
Bloemfontein,
with
one count of
sexual
assault in contravention of
section 5
of the
Criminal Law (Sexual
Offences and Related
Matters)
Amendment
Act
32
of
2007
.
In
the
charge
it
was
alleged
that during
or
about
2019
the
appellant
unlawfully
and
intentionally
violated
the 14-year old male complainant by
"lying
behind him and pressing his penis against
the
complainant's
buttocks
and
making
sexual
movements
and
telling
him to
take
a-
shower
with him."
He
pleaded
guilty
to
this
charge
and
on
21-September
2021 he was convicted and sentenced to fifteeen years imprisonment
of
which five years were suspended for a period of
five
years on condition that he is not convicted
of
contravening
the
provisions of
section 5
of Act 32/2007 committed during the period of
suspension.
[2]
The
appellant aggrieved by the sentence imposed successfully applied for
leave to appeal his sentence in the trial court. In the
notice of
appeal filed on behalf of the appellant, the following grounds of
appeal were raised:
"(i)
That the Court a
quo
did not take necessary consideration of
the fact that the Appellant had pleaded guilty to the charge.
(ii)
That
the Court a
quo
did
not take sufficient consideration to the fact that the State agreed
with the defence that an appropriate sentence under the
circumstances
is a term of imprisonment of not more than six years.
(iii)
That
the Court a
quo
over
emphasised the seriousness of the crime and the interest of the
community over the personal circumstances of the appellant;
the
personal circumstances being that the Appellant is 62 years of age,
and that he spent almost a year in custody pending finalisation
of
the matter.
(iv)
That
the Court a
quo
over
emphasised the two principles of punishment, namely deterrence and
retribution over the principle of rehabilitation.
(v)
That
the Court a
quo
over
emphasized the fact that the appellant has previous convictions for
similar offences.
(vi)
That
the Court a
quo
erred
by imposing fifteen years imprisonment
as
it is shockingly inappropriate and the appellant is effectively
deprived from an opportunity to reform."
[3]
The
salient facts underpinning appellant's conviction, in brief are as
follows: The appellant, a 61-year-old man was a close family
friend
of the complainant. The complainant, a young boy aged 14 years would
normally visit the appellant's place with his family.
A close
friendship developed between the appellant and the complainant. The
complainant would at times visit the appellant without
his family. On
the date in question, he slept over at the appellant's place. The
appellant and complainant were lying on the bed
when the
appellant
took
out
his
penis
and
started
rubbing
it
against
the
complainant's buttocks. The appellant also admitted that he took a
shower with the complainant and requested the complainant
to wash his
back. The complainant had not consented to these acts. He was
convicted and sentenced by the court a
quo
as
above.
[4]
Before
us, the counsel for the appellant contended that the court a
quo
overemphasised
the previous convictions of the appellant and that the sentence
imposed is shockingly inappropriate. She further
submitted that the
court must interfere with the court a
quo's
sentence
as it failed to consider that the appellant had pleaded guilty to
this offence and is an elderly man.
[5]
The
counsel on behalf of the State conceded that the sentence imposed by
the court a
quo
is
shockingly inappropriate. She submitted that accused's previous
convictions suggest a propensity to commit offences of this nature;
nevertheless, the sentence remains harsh and shockingly
inappropriate.
[6]
Both
counsel agreed that the sentence of six years' imprisonment suggested
by the State and the defence in the court a
quo
was
not an appropriate sentence in the appellant's circumstances. They
both submitted that in the event of the court considering
reducing
the sentence imposed, a term of imprisonment of twelve years can be
imposed and a certain part of this imprisonment
be
suspended in order to serve as a deterrent on the appellant.
[7]
Sentencing
is pre-eminently a matter for the discretion of a court a quo. See
S
v
PILLAY
1977
(4)
SA
531
(A)
.
In
the
case
of
S
v
SALZWEDEL
1999
(2)
SACR
586
(SCA)
at
591 E - F the Supreme Court of Appeal explained with reference to
S
v ANDERSON
1964 (3) SA 494
(A)
at
495 G - H when an appeal court will interfere with sentence:
"The
Court of Appeal, after careful consideration of all the relevant
circumstances as to the nature of the offence committed
and the
person of the accused, will determine what it thinks the proper
sentence ought to be and if the difference between that
sentence and
the sentence actually imposed is so great that the inference can be
made that the trial court acted unreasonably,
and therefore
improperly, the Court of appeal will alter the sentence”
[8]
Where
the court a quo has failed to exercise its discretion properly and
has committed a material misdirection, an appeal court
will be at
liberty to interfere with the sentence imposed by the trial court.
[9]
The
following statement by the Regional Magistrate in passing judgment on
sentence cannot be overlooked:
"What
however I cannot ignore is the fact that you have previous
convictions which are similar to this offence and it is not
one, not
two, it is more than two. Five people were affected by your behaviour
10 years ago and here you are standing more it is
from 2009, it is
more than 11years, 11 years you are standing before for this court
for the same offence."
[10]
The previous convictions of the appellant as per the SAP 69 depict
that the appellant was on
the 30th of November 2009 convicted of
rape, 2 counts of indecent assault and two counts of sexual assault.
[11]
There
was no evidence presented to substantiate that there were five
complainants in the previous convictions referred to in the
SAP 69.
There is only one CAS-NR (35/11/2008) on the SAP 69. This suggests
that there might have been only one complainant affected
by
appellant's past conduct. Consequently, the above remarks by the
Regional Magistrate in my view amount to misdirection.
[12]
In
addition to the aforesaid, the court a
quo
failed
to take into consideration that the five previous convictions were
older than ten years.
Although
the
court
a
quo
referred
to the date of the previous
convictions
in
the extract
of
her judgment on sentence which I quoted above, she dealt with them as
though they still constituted previous convictions in the
true sense
of the word; while on the contrary, they did not. In this regard the
following extract from
A
Guide
to Sentencing in South Africa,
SS
Terblanche, Third Edition, p.115 at paragraph 6.8 provides, with
reference to applicable case law, a useful summary of the relevant
principles:
"The
weight of an offender's previous convictions is influenced by the
proximity in time
of the subsequent conviction. It is
generally substantially aggravating if the subsequent offence is
committed shortly after the
previous one. On the other hand, a
substantial period without any convictions should decrease the weight
of this factor. As a general
point of departure, a previous
conviction more than ten years before the subsequent conviction
should not be taken into consideration
as an aggravating factor. This
principle will, however, be negated by a chain of convictions less
than ten years apart, even if
the initial conviction is eventually
more than ten years old. Also, some judgments have held that even
previous convictions as
old as 20 years can at times be taken into
account. For example, the court in
S v Ntozini
held that such
a previous conviction for rape was
'nevertheless in my view an
aggravating feature indicative of the accused's deplorable attitude
towards members of the opposite
sex'."
[13]
The
court a
quo
consequently
also misdirected itself by having taken the aforesaid five previous
convictions into consideration as though they were
still applicable
as previous convictions in the true sense of the word. The previously
mentioned two misdirections warrant interference
by this court.
[14]
The
offence that the appellant was convicted of is a serious offence. The
victim was a 14-year old child who trusted the appellant
and he
breached that element of trust.
In
the victim impact statement, he expressed how this incident affected
him; he feels ashamed and angered by this act as he respected
the
appellant.
The
appellant is a 62-year-old man. Even though the previous convictions
are older than 10 years, the court cannot turn a blind
eye on them as
they show the appellant's propensity for committing sexual offences.
[15]
The
sentence should nonetheless reflect the interests of society, take
into account the appellant's personal circumstances and the
heinous
nature of the crime committed by the appellant.
[16]
The
sentence imposed by the trial court is undoubtedly disturbingly harsh
and vitiated by misdirection. I am of the view that the
sentence
imposed consequently ought to be interfered with.
[17]
I
would accordingly make the following order:
1.
The
appeal against sentence is upheld.
2.
The
sentence imposed by the trial court is set aside and substituted with
the following sentence:
"The
appellant is sentenced to twelve (12) years imprisonment of which
four (04) years are suspended for a period of five (05)
years on
condition that the appellant is not convicted of sexual assault
committed during the period of suspension."
3.
The
above sentence is antedated to 21 September 2021 in terms of
section
282
of the
Criminal Procedure Act, 51 of 1977
.
L.MPAMA, AJ
I agree and it
is so ordered:
C.VAN ZYL, J
On behalf of
Appellant: Ms
S. Kruger
Instructed
by:
Legal
Aid South Africa
Bloemfontein
On behalf of
Respondent: Adv
B.G. Claassens
Instructed
by: Office
of the DPP
Bloemfontein