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[2021] ZALMPPHC 47
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S v M.P.M (A43/2018) [2021] ZALMPPHC 47 (18 August 2021)
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Certain
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NO A43/2018
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED.
YES/NO
In
the matter between:
M.P.M
APPELLANT
And
THE
STATE
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1] The
appellant was convicted by the regional magistrate Modimolle on one
count of rape of a 14 years
girl in contravention of section 3 of the
Criminal
Law
(Sexual
Offences and Related Matters) Amendment Act
[1]
,
read with the provisions of section 51(1) and Part I of Schedule 2 of
the
Criminal
Law
Amendment
Act
[2]
.
[2] The
appellant has pleaded guilty to the charge, and in his statement in
terms of section 112(2)
of the
Criminal
Procedure Act
[3]
,
he had admitted having sexual intercourse with the complainant who
was 14 years of age at the time of the incident, by inserting
his
penis into her vagina without her consent. He had also stated that he
gained entry into the house through the kitchen window
which was
open. On entering the house, the appellant went to the complainant’s
bedroom and found her asleep. The appellant
got into the
complainant’s bed, closed her mouth with his hands and ordered
the complainant to undress. After the complainant
had undressed, the
appellant inserted his penis into the complainant’s vagina
without her consent. The appellant was duly
convicted based on his
guilty plea and sentenced to life imprisonment. Since the appellant
has been sentenced to life imprisonment
by the regional court, he is
having automatic right of appeal.
[3] The
appellant had launched an appeal against sentence only. In his
grounds of appeal, the appellant
has stated that the effective term
of life imprisonment is harsh and strikingly inappropriate in that it
is out of proportion to
the totality of the accepted facts in
mitigation of sentence, and also disregards the personal
circumstances of the appellant.
Further that the court a quo has
overlooked the fact that the appellant’s statement in terms of
section 112(2) does not admit
the age of the complainant to be 14
years at the time of the commission of the offence. That the court a
quo failed to properly
consider the probation officer’s report,
and that had the report been properly considered, it would have found
that the mitigating
factors contained in that report cumulatively
constitutes substantial and compelling circumstances.
[4] After
the conviction of the appellant, the probation officer was requested
to compile a presentence
report. In the report the probation officer
has stated that the appellant had self confidence issues; the
appellant had trouble
in expressing himself to women; the appellant
uses alcohol to gain courage; the appellant got sexual urges from the
complainant
the first time he saw her; that on the day of the
incident the appellant saw an opportunity and he used it and that he
was not
thinking straight as he was drunk. The probation officer has
further stated that on the day of the incident the appellant had
forgotten
that the complainant was his sister.
[5] The
appellant’s personal circumstances are that his parents were
never married to each other,
and he was raised by his maternal
grandmother. He schooled up to grade seven and that he dropped out of
school after the death
his mother as there were no more sufficient
funds for him to further his studies. His mother has passed away
hence he is residing
with his grandmother. He has been kept in
custody awaiting trial for two years and eight months. He is not a
first time offender,
and he is having a previous conviction of rape
of his cousin.
[6] A
victim impact report was also prepared. In that report, the probation
officer had stated that
the complainant had told her that a week
before the incident, her mother and stepfather had introduced the
appellant to her and
her siblings. That the complainant’s
mother and stepfather were coming home only during month ends. That
the complainant
was still suffering from having flash back of the
incident. That the incident had affected the complainant
psychologically as she
had developed learning problems at school, was
having trust problems on male persons and was also not comfortable to
have male
persons around her. Further that the complainant was having
problems of sleeping at night. That the complainant’s
grandmother
had told the probation officer that the complainant had
developed to be moody, short tempered and defensive. That the family
of
the complainant has been deeply affected and disappointed by what
the appellant did to the complainant. The probation officer had
attached the birth certificate of the complainant to her report.
[7]
It is trite that sentencing is the prerogative of the trial court,
and should not lightly be interfered
with. An appeal in which the
interference with sentence will be justified is when it is found that
the trial court has misdirected
itself in some respect or if the
sentence imposed was so disturbingly disproportionate that no
reasonable court would have imposed
it. The test is not whether the
trial court was wrong, but whether it exercised its discretion
properly. (See
S
v Romer
[4]
).
[8] The
court a quo sentenced the appellant to life imprisonment on the basis
that he had raped a victim
who was below the age of sixteen years and
whilst still serving a sentence of rape which he was sentenced during
2015. For that
2015 sentence, the appellant was sentenced to seven
years imprisonment. The appellant had served five of that 2015
sentence. That
rape which he is having a previous conviction is in
relation to his cousin who is also his close relative.
[9] The
appellant in one of his grounds for appeal has stated that the
presiding magistrate had overlooked
the fact that the appellant in
his section 112(2) statement did not admit that the complainant was
14 years at the time of the
commission of the offence.
Basically what the appellant is submitting is that the State has
failed to prove the age of the
complainant, and therefore the
jurisdictional facts to sentence the appellant to life imprisonment
are not present.
[10] In
cases where the victim is a minor child, the age of the complainant
has to be proved by the State
beyond reasonable doubt, because it is
a vital element in the determination by the trial court whether a
prescribed minimum sentence
has to be imposed. It is trite that the
age of the complainant could be proved by the evidence of her mother
or someone else present
at her birth or by the production of her
birth certificate. (See
Lubando
v The State
[5]
).
[11] The
appellant in his section 112(2) statement had admitted that he had
unlawfully and intentionally committed
an act of sexual penetration
with the complainant who was fourteen years old. It is the duty of
the State to prove the age of the
complainant who is a minor beyond
reasonable doubt. The accused 112(2) statement should not amount to a
simple regurgitation of
the content of the charge. In this case, the
appellant had admitted the age of the complainant in his section
112(2) statement.
In my view, that was an appropriate admission that
had absolved the State from proving the age of the complainant. (See
Mshengu
v State
[6]
).
The probation officer in her victim impact assessment report had also
attached the birth certificate of the complainant.
[12] The
complainant birth certificate was submitted before the appellant was
sentenced during presentation
of mitigating and aggravating factors.
If there were any issues in relation to that birth certificate,
counsel for the appellant
had an opportunity to cross examine the
probation officer, but did not do so. That version relating to the
age of the complainant
therefore remained unchallenged. Even if the
appellant had not made an appropriate admission in his section 112(2)
statement which
is not the case in this matter, the stage at which
the complainant’s birth certificate was submitted, would have
enabled
the court a quo to determine whether the jurisdictional facts
to impose life imprisonment were present. This court is therefore
satisfied that the admission by the appellant of the age of the
complainant in his 112(2) statement, and also the handing in by
the
probation officer of the birth certificate of the complainant, the
State had proved the age of the complainant beyond reasonable
doubt.
[13] On
30
th
November 2011, the appellant raped his cousin and was sentenced to
seven years imprisonment on 30
th
June 2015. The current offence the appellant had committed it on 24
th
May 2015 whilst still on trial for 2011 rape case. Despite the
appellant been convicted of the 2011 rape whilst the appellant was
already on trial for the current rape, the court a quo considered
that conviction as a previous conviction. In my view, the court
a quo
was correct in its approach on that previous conviction since the
2011 rape was committed before the current rape and it
also reflect
on the character and bad behaviour of the appellant, and therefore
vital in determining the appropriate punishment
that fit the
appellant as well as the crime. (See
Mahlase
v The State
[7]
).
[14] The
court a quo in sentencing the appellant to life imprisonment, had
considered the fact that the appellant
grew up without a mother;
dropped out of school in grade 7 as a result of the death of his
mother; and been in custody for two
years and eight months whilst
awaiting trial as mitigating factors. The court a quo found that the
aggravating factors were the
seriousness of the offence; the fact
that the appellant was not a first offender and had a previous
conviction of rape; apparent
lack of remorse; that the appellant had
no prospects of rehabilitation and also the fact that the appellant
previously raped her
cousin, and now had raped his step sister. After
striking a balance of both aggravating and mitigating factors the
court a quo
came to the conclusion that there were no substantial and
compelling circumstances justifying a deviation from the prescribed
minimum
sentence of life imprisonment.
[15] In
S v Vilakazi
[8]
the court said:
“
In cases of
serious crime the personal circumstances of the offender, by
themselves, will necessary recede to the background. Once
it become
clear that the crime is deserving of a substantial period of
imprisonment the questions whether accused is married or
single,
whether he has two children or three, whether or not he is in
employment, are 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. But they are nonetheless
relevant in
another respect.”
[16] The
appellant has been convicted of a serious offence of which he was not
a first time offender for a similar
offence. The appellant had
committed the current offence whilst he was on trial for 2011 rape.
The trial which he was undergoing
did not deter him from committing a
similar offence. The appellant’s bad character and behaviour is
that of a person who
will not be rehabilitated. In both the 2011 and
2015 rape, the appellant had raped close relatives. The appellant is
the one who
should be protecting his close relatives as they put
trust in him, but instead he is preying on them. The appellant is
therefore
a danger to his close relatives and the society at large.
The appellant’s case is the type of cases Vilakazi case says
their
personal circumstances should recede into the background. It is
the duty of the court to protect the vulnerable and defenceless
members of the society. In my view, the court a quo was correct in
finding that there were no substantial and compelling circumstances
justifying a deviation from the prescribed minimum sentence of life
imprisonment, and I do not find any reasons to fault the court
a quo
for arriving at that conclusion. It follows that the appellant’s
appeal on sentence stands to fail.
[17] In
the result I make the following order
17.1 The appellant’s
appeal on sentence is dismissed.
KGANYAGO
J
JUDGE OF THE HIGH
COURT OF SOUTH
AFRICA, LIMPOPO
DIVISION, POLOKWANE
I AGREE
MULLER
J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA, LIMPOPO
DIVISION,
POLOKWANE
APPEARANCES:
Counsel
for the appellant
SM
Mawasha
Instructed
by
Legal
Aid SA Polokwane Office
Counsel
for the respondent
Adv
Sebelebele
Instructed
by
DPP
Polokwane Office
Date
heard
30
th
July 2021
Date
delivered
18
th
August 2021
[1]
32 of 2007
[2]
105 of 1997
[3]
51 of 1977
[4]
2011 (2) SACR 153
(SCA) at paras 22 and 23
[5]
[2016] ZASCA 4
(1 March 2016))
[6]
[2009] ZASCA 65
;
2009 (2) SACR 316
(SCA);
2009 4 All SA 242
(SCA)
(29 May 2009) at para 9
[7]
[2011] ZASCA 191
(29
th
May 2013)
[8]
2009 (1) SACR 552
(SCA) at para 58