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[2022] ZANCHC 43
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Farao v S (CA&R21/2022) [2022] ZANCHC 43 (19 August 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
number:
CA&R21/2022
Date
Heard:
01 / 08 / 2022
Date
delivered:
19 / 08 / 2018
Reportable:
NO
Circulate
to Judges: NO
Circulate
to Regional Magistrates: YES
Circulate
to Magistrates: YES
In
the appeal of:
EDMUND
FARAO
APPELLANT
and
THE
STATE
RESPONDENT
Before:
Phatshoane DJP and Stanton AJ
JUDGMENT
STANTON
AJ
INTRODUCTION:
-
[1]
The appellant, Mr Edmund Farao, was arraigned before Magistrate Mbalo
in the Regional
Court, held at Fraserburg (the trial court), on two
counts, namely, rape of a minor and attempted murder. He was legally
represented
in the trial court and had been advised, prior to
commencement of the trial, that he could be sentenced to life
imprisonment, if
convicted on the charge of rape, absent any
substantial and compelling circumstances. On 10 March 2021 he was
convicted on both
counts. In respect of the count of attempted
murder, he was sentenced to 8 years imprisonment and on the count of
rape, he was
sentenced to life imprisonment in terms of section 51(1)
of Criminal Law Amendment Act 105 of 1997 (the CLAA).
[2]
In terms of s 309(1)(a) of the Criminal Procedure Act 51 of 1977 (the
CPA), as amended
by s 10 of the Judicial Matters Amendment Act 42 of
2013, the appellant has an automatic right of appeal to the Full
Bench of this
Court against his sentence of life imprisonment. On
that basis, the appellant noted his leave to appeal against his
sentence of
life imprisonment to this Court. He does not persist in
his appeal against the sentence of 8 years imprisonment imposed in
respect
of the attempted murder count.
[3]
The appellant pleaded not guilty during his trial and made some
formal admissions
in terms of section 220 of the CPA to the effect
that he had a consensual sexual encounter with the complainant, which
included
contact of the genital organs, but denied any form of
penetration. Accordingly, the State bore the
onus
to prove all
the elements of the offences beyond a reasonable doubt.
THE
BACKGROUND:
[4]
It is not necessary to traverse the evidence comprehensively. A bit
of a background
suffices for present purposes. About 28 September
2018 the 16-year-old Mr J[....], the complainant, accompanied by Ms M
L[....]
arrived at the appellant’s home. Shortly thereafter,
the appellant sent Ms L[....] into the neighbourhood to purchase some
drugs. She left the complainant with the appellant. The complainant
testified that the appellant then grabbed him, pushed him against
the
cupboards, threw him on a bed, put the complainant’s legs on
his shoulders. He penetrated the complainant anally with
his penis
and had sexual intercourse with him. During the act the complainant
cried but the appellant muffled his scream. He also
threatened to
hurt the complainant should he reveal the acts to his parents. True
to this, the complainant did not disclose the
ordeal to his parents.
Days later, the complainant experienced some discomfort around his
anus. He reported the discomfort to his
mother which prompted her to
probe about the source of the complaint. When she was unable to
obtain the answer, she requested the
complainant’s cousin to
assist. Ultimately, the complainant revealed that the appellant raped
him. He left school in grade
8 because his peers mocked him about the
rape.
[5]
The complainant was examined Dr Natasha Blanckenberg. On the J88
handed in evidence
by consent, she recorded that the complainant is
“slender” in built with a height of 153 cm and weighed 41
kg. The
complainant had multiple flat warts clustered around the anus
caused by syphilis. The doctor explained that he contracted syphilis
as a result of the anal penetration by a person infected with this
sexually transmitted disease. The complainant was treated for
syphilis. The doctor further explained that syphilis, if
untreated, syphilis would cause dementia, madness and damage to
the
heart and heart valves. She confirmed that the appellant is HIV
positive.
[6]
When he took the stand, in essence, the appellant denied that he
committed the offences
with which he was charged. However, when
cross-examined and after being confronted with his contradictory
evidence, he admitted
that he raped the complainant anally, without a
condom, and that he was aware of his HIV status when he did so. These
concessions
were subsequently formally admitted in terms of section
220 of the CPA.
THE
GROUNDS OF APPEAL:-
[6]
As already alluded to, this
appeal lies against
the sentence of life imprisonment imposed by the trial court. It was
contended for the appellant, in broad terms,
that the trial court
misdirected itself in not finding substantial and compelling
circumstances which justified a departure from
the imposition of life
imprisonment.
THE
DISCUSSION:
[7]
The appellant’s conviction attracts a sentence of life
imprisonment in that s
51(1) of the CLAA
stipulates that
a high court or regional
court must, if it has convicted a person of rape, when it is
committed by a person knowing that he
has the acquired immune
deficiency syndrome, sentence the person to life imprisonment
,
unless substantial and compelling circumstances exist which justify
the imposition of a lesser sentence.
[8]
Sentencing is primarily in the discretion of the trial court. The
question to be answered
is not whether the sentences were right or
wrong, but whether the trial court used its discretion in a
reasonable manner. Only
when there is an irregularity or where the
trial court made a grave error or where the sentence is shocking and
inappropriate,
will a court of appeal intervene.
[1]
Where, as here, the trial court imposed the sentence prescribed by
the CLAA, the approach on appeal is whether the facts that were
considered by the sentencing court are indeed substantial and
compelling circumstances. Bosielo JA, in
S
v PB
[2]
,
reaffirmed
the correct approach by a court on appeal against a minimum sentence,
as follows:-
“…
Can the
appellate court interfere with such a sentence imposed by the trial
court exercising its discretion properly, simply because
it is not
the sentence which it would have imposed or that it finds shocking?
The approach to an appeal on sentence imposed in
terms of the Act
should, in my view, be different to an approach to other sentences
imposed under the ordinary sentencing regime.
This, in my view, is so
because the minimum sentences to be imposed are ordained by the Act.
They cannot be departed from lightly
or for flimsy reasons. It
follows therefore that a proper enquiry on appeal is whether the
facts which were considered by the sentencing
court are substantial
and compelling, or not.”
[9]
In the matter of
S
v Malgas
[3]
,
Marais JA, with regard to the approach to be followed when minimum
sentences are considered on appeal, stated as follows:-
“
A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it. To
do
so would be to usurp the sentencing discretion of the trial court.
Where material misdirection by the trial court vitiates
its
exercise of that discretion, an appellate court is of course entitled
to consider the question of sentence afresh. In
doing so, it
assesses sentence as if it were a court of first instance and the
sentence imposed by the trial court has no relevance.
As it is
said, an appellate court is at large. However, even in the absence of
material misdirection, an appellate court
may yet be justified in
interfering with the sentence imposed by the trial court. It may do
so when the disparity between the sentence
of the trial court and the
sentence, which the appellate court would have imposed had it been
the trial court is so marked that
it can properly be described as
“shocking”, “startling” or “disturbingly
inappropriate”. It
must be emphasised that in the latter
situation the appellate court is not at large in the sense in which
it is at large in the
former. In the latter situation it may
not substitute the sentence which it thinks appropriate merely
because it does not
accord with the sentence imposed by the trial
court or because it prefers it to that sentence. It may do so
only where the
difference is so substantial that it attracts epithets
of the kind I have mentioned. No such limitation exists in the
former
situation.”
[10]
The appellant advanced the following personal circumstances in
mitigation:-
10.1 He was 35
years old at the time of the commission of the offence;
10.2 He was a first
offender;
10.3 He had high
prospects of rehabilitation;
10.4 He was
self-employed as a hair stylist;
10.5 He was the
breadwinner of his family;
10.6 The
complainant did not sustain serious physical injuries; and
10.7 The appellant
made admissions in terms of section 220 of the CPA, thereby taking
responsibility for his actions.
[11]
The trial court had regard to the serious nature of the crime which
had been committed on a 16-year-old;
its high prevalence, which is
shocking and causes outrage. It also considered that the appellant
committed these offences when
he was acutely aware of his HIV status.
The more aggravating feature of this case is that the complainant
contracted syphilis as
a result of the rape. Ms MM Smith, a social
worker, compiled a report in terms of s170 of the CPA concerning the
ability of the
complainant to testify in open court. Apparent from
her report is that the complainant was traumatised by the incident.
He confided
to the social worker that he harboured fear against the
appellant. As already stated, the complainant left school as a result
of
being teased about the rape. The appellant showed no genuine
remorse and did not take the court into his confidence until after
he
had been cross-examined.
[12]
Mr P Fourie, for the appellant, conceded that the trial court
considered all the mitigating and
aggravating circumstances and
exercised its discretion judicially. He, however, urged us to deviate
from the prescribed minimum
sentence on the basis that the appellant
is a first offender and the physical injuries were not of a serious
nature. In
S
v Vilakazi
[4]
,
the Supreme Court of Appeal reaffirmed that t
he
personal circumstances of an offender, in cases of serious crime,
will necessarily recede into the background when sentencing
is
considered. The lack of physical injuries is a
factor
to be considered along with other relevant factors to conclude
whether there are substantial and compelling circumstances. An
apparent lack of physical injury to the complainant, without more,
would not suffice.
[5]
In
S
v Matyityi
[6]
,
Ponnan JA, with regard to
the
appellant’s personal circumstances, concluded:-
“…
Instead
the trial court emphasised the personal interests of the individual
respondent above all else. In doing so it failed to
strike the
appropriate balance. It thus imposed a sentence that was
disproportionate to the crime and the interests of society.
In my
view there were no substantial and compelling circumstances present
that warranted a departure from the prescribed statutory
norm. It
follows that the contrary conclusion reached by the high court cannot
stand. Having regard to all of the circumstances
encountered here the
minimum sentence is a manifestly fair and just one. To my mind this
is precisely the type of matter that the
legislature had in mind when
it enacted the minimum sentencing legislation.”
[13]
In
S
v Mahomotsa
,
[7]
Mpati
JA, with reference to the severity of an offence, confirmed that:-
“
One
must of course guard against the notion that because still more
serious cases than the one under consideration are imaginable,
it
must follow inexorably that something should be kept in reserve for
such cases and therefore that the sentence imposed in the
case at
hand should be correspondingly lighter than the severer sentences
that such hypothetical cases would merit. There is always
an upper
limit in all sentencing jurisdictions, be it death, life or some
lengthy term of imprisonment, and there will always be
cases which,
although differing in their respective degrees of seriousness,
nonetheless all call for the maximum penalty imposable.
The fact that
the crimes under consideration are not all equally horrendous may not
matter if the least horrendous of them is horrendous
enough to
justify the imposition of the maximum penalty.”
[14]
The trial court, in its
detailed judgment on sentence, considered all the relevant factors
which come into play when deciding upon
an appropriate sentence - the
serious nature of the offence, the interests of the community, the
prevalence of violence towards
women, children and the elderly and
the personal circumstances of the appellant. In my view, not one of
these factors was over-emphasised
at the expense of another.
[15]
T
he trial court also weighed both the mitigating and
the aggravating factors and correctly found that no substantial and
compelling
circumstances existed to deviate from the prescribed
minimum sentence of life imprisonment. In my view, the trial court
exercised
its discretion in a reasonable manner and the
sentence is not shockingly inappropriate.
There is
accordingly no basis on which this court can interfere with the
sentence. In the result, the appeal must fail. I make the
following
order.
Order:
The
appeal against sentence is dismissed.
STANON, A
ACTING JTUDGE
I agree
PHATSHOANE, MV
DEPUTY JUDGE PRESIDENT
On behalf of the
Appellant: Mr.
P. Fourie (Legal Aid SA)
On behalf of the
Respondent:
Adv. E Krüger
(the DPP, Northern Cape)
[1]
S v Pillay
1977 (4) SA 531
(A) at 535 E-F; S v Pieters
1987 (3) SA
717
(A) at 728 B – C.
[2]
2013 (2) SACR 533
at paragraph [20].
[3]
2001
(2) SA 1222
(SCA) at paragraph [12].
[4]
2009 (1) SACR 552
(SCA) at paragraph [58].
[5]
Director
of Public Prosecutions, Free State
v
Mokati
2022
(2) SACR 1
(SCA) para 40.
[6]
2011 (1) SACR 40
(SCA) at paragraph [24].
[7]
2002 (1) SACR 435
(SCA) at paragraph [19].