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[2019] ZAGPPHC 1042
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Daile v S (A667/16) [2019] ZAGPPHC 1042 (4 March 2019)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: A667/16
Date:4/3/2019
In
the matter between:
Simphiwe
Daile
and
The
State
Mavundla
J et Makola AJ
[1]
Section 51(1) of the Criminal Law
Amendment Act 105 of 1997
("CLAA
"
)
prescribes a sentence of
imprisonment for life for a person convicted of rape
,
where the victim is under the age of 16
years. A court may, however,
impose
a
lesser sentence if it is satisfied that substantial and compelling
circumstances exist which justifies the
imposition
of a lesser sentence than the prescribed
one.
[2]
On 22 February 2016, the Regional Court,
Pretoria, convicted and imposed a sentence of life imprisonment on
the appellant for
raping
the
complainant, who was 9 years at the time. The appellant appeals
against the conviction and the sentence imposed.
[3]
The questions that arise in this appeal
are:
[3
.
1]
Did the state prove the appellant's
guilt beyond a reasonable doubt?
[3
.
2]
Are there substantial and compelling circumstances which justify the
imposition of
a
lesser
sentence
than
imprisonment
for
life?
Relevant
Facts
[4]
The facts are largely common cause. On
18
October
2009 the appellant, the complainant's mother and their companions
were at the complainant's house where, by all accounts
,
large quantities of alcohol were
consumed. The house has two rooms, a bedroom which the complainant
shared with her mother and a
sibling, and living room
.
[5]
The
complainant
,
then
nine years old, went to sleep in the bedroom
.
The television in the bedroom
was
on and the complainant did not switch it
off when she slept.
[6]
The
complainant
'
s
mother and a compan
i
on
remained in the
other
room
whilst the appellant passed out on
the complainant bed. At some point during the night the appellant
touched the complainant on
her vagina and penetrated her using his
fingers. The appellant says he thought he was touching the mother.
The complainant woke
up because she was feeling pain. At first she
thought she was dreaming but then woke up to find appellant was on
top of her, raping
her.
[7]
She was able to
recognise
the
applicant because of the
light
from
the
television. She cried and the appellant
told her not to cry, and not to tell her mother, he will give her
money. The mother, who
had fallen asleep
in
the other room, was alerted to the
complainant's cries, went to check on her, saw the appellant putting
on his trousers, and saw
what looked like semen on the complainant's
thighs. The appellant apologised and offered the mother money to buy
her silence. She
refused, alerted the community and the police
.
The appellant was arrested and charged
with rape.
[8]
The appellant denies that he
raped
the complainant. He, however, admits to
fondling her private parts
,
he
says
that
he
thought the complainant was the mother. He says he only
realized
that he had been fondling the
complainant when he came back from the
toilet
and found the complainant crying.
[9]
The trial court found that the evidence
of the complainant was coherent; she was an honest and intelligent
witness who gave answers
about what had happened on the day
.
She recalled her evidence clearty and
was sober on the night in question. The trial court also found that
the appellant did not
recall how he had
touched
the complainant and he did not know
if
he was
on
top of the complainant or no
t.
He
also did not know
i
f
he had penetrated the complainant.
[10]
The trial court concluded that the
appellant's propensity to change his defence suggested that it might
be a fabrication or an afterthought.
He tailored his evidence as it
suited him; avoided pertinent questions and his evidence under
cross-examination appeared to be
unreliable and evasive
.
[11]
Based on all the ev
i
dence
taken, the court concluded that the only reasonable inference was
that the appellant had raped the complainant. He was convicted
and
sentenced to imprisonment for life.
The
Conviction
[12]
The appellant contends that the evidence of the complainant, being a
single witness to the rape
incident
,
was
not sat
i
sfactory
in material respects
;
the
main issues that were placed
i
n
dispute were whether the appellant had penetrated the comp
l
ainant,
and whether he had the necessary intention to penetrate the
complainant.
[13]
Counsel for the appellant also arg
u
ed
that
,
the
appellant was not linked to the rape by way of DNA evidence and that
the semen could not be scientifically detected
;
the absence of corroborative ev
i
dence
created some doubt which should have benefitted the appellant.
Furthermore, the police officers who arrested the appellant
were not
called as witnesses, nor were the other witnesses who were with the
appellant in the house; the appellant’s state
of sobriety at
the time of the commission of the offence could not be ascertained.
It is also contended that it was possible that
the
appellant
did not, at the time of commission of the offence, appreciate the
nature of his action and therefore lacked the necessary
criminal
capacity to act.
[14]
Counsel for the appellant also submitted
that the trial court did not take into account, alternatively,
did
not adequately take into account the contradictions and the
improbabilities of the state's case, to the detriment of the
appellant
and there are serious doubts and motives why the appellant
was falsely accused of raping the complainant.
[15]
We point to the following factors, which, collectively, lead to the
conclusion the appellant
was correctly convicted by the trial court.
The appellant, on his own version had consumed large quantities of
alcohol to a point
of inebriation. In his evidence he could not
recall most of what happened but
,
crucially, he recalls touching and
fondling the complainant although, according to him, he thought it
was the mother.
[16]
The evidence of the complainant is also
crucial in this respect. She was in bed and woke up to find that the
appellant was on top
of her raping her. She cried and this
alerted her mother who rushed inside the bedroom and found the
appellant pulling up
his trousers and she also saw what looked like
semen on the complainant's thighs. The appellant tried to bribe her
by giving her
money to buy her silence.
[17]
The fact that the complainant was a
single witness to the rape incident does not detract from the
totality of the evidence that
led to the conviction of the appellant.
The caution applicable to single witnesses may be overcome by
corroboration, but this is
not essential. Any other feature which
increases
the confidence of
the
court in the reliability of the single
witness may also overcome the caution.
(S
v Hlongwa
1991 (1) SA CR 583
(A) at 586H- 587C;
and
S v Sauls and Others
1981 (3) SA 172
(A) at 180E-G).
[18]
A trial judge will weigh his evidence,
consider its merits and demerits and, having done so, will decide
whether it is trustworthy
and whether despite the fact that there are
shortcomings and defects or contradictions
in
the testimony, he is satisfied that the
truth
has
been told
(S v Webber
1971
(3)
SA 754
(A) at 758).
[19]
The fact that no DNA evidence was
proffered into evidence does not detract from the finding of the
trial court on the guilt of the
appellant. The State had led the
evidence of a doctor who, as
the
trial
court found, sufficiently explained the aspects of her report and
also established conclusively that the complainant had been
penetrated.
[20]
The
appellant submits that there were contradictions between the evidence
of the complainant and her mother. In our
view
the fact that there may have been
differences in their recollection as to whether or not a certain
Mzi,
one of the companions, had left
before the complainant went to bed or not does not detract from
totality of the evidence upon which
the appellant was convicted. That
difference
is
immaterial
in our view.
[21]
The evidence of the witnesses called by
the State including the medical evidence taken together with
the
appellant's own admissions and the
concession made by his counsel in argument that he could not find
fault with the findings of
the trial court,
in
our own view, supports the conclusion
the prosecution has established the appellant's guilty beyond a
reasonable doubt.
Sentence
[22]
The appellant contends that the trial court approached the sentence
with vengeance and over
-
emphasised
the seriousness of the offence to the detriment of the appellant the
sentencing court did not show any mercy to him
;
the sentence was only intended to break
him and leave him without any hope and/or chance of being
rehabilitated. Furthermore, the
complainant did not suffer physical
harm from the commission of the offence; the rape could not be
classified as one of the worst
cases of rape
;
the lengthy term of imprisonment imposed
by the trial court is not in the best interests of the community
and/or the appellant and
that the public interest is not necessarily
served by the imposition of very long sentences of imprisonment.
[23]
The appellant contends, furthermore
,
that there is no reason to believe that
the deterrent effect of a prison sentence is always proportionate to
its length and he would
have to serve at least 25 years before being
considered for parole and he will be 68 years then. The appellant
contends that an
effective period of no more than 20 years
imprisonment should have been imposed
.
[24]
In argument, counsel for the appellant
also submitted that the trial court did not take into account the
period that the appellant
was in custody (from 2012 to 2016) and that
the sentence was harsh because the appellant was a first
offender who was 37
years old when he was sentenced.
[25]
This court will not interfere with the
sentence of the trial court unless it is vitiated by irregularity,
misdirection or is disturbingly
inappropriate. An appeal court
cannot, in the absence of a material misdirection by a 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. The appeal court may only interfere with the sentence
imposed
by the trial court when the disparity
between the sentence of the trial court and the sentence which the
appellate court may have
imposed had it been the trial court is so
marked that it can only properly be described as
"
shocking
",
"startling
"
or
"disturbingly
inappropriate"
.
S
v Malgas
2001 (2) SA 1222
(SCA)
para
[12];
Director of Public
Prosecutions, KwaZulu-Natal v P
2006 (1) SACR 43
(SCA)
at
para (10).
S v Bogaards
2013 (1) SA 1
(CC)
at para 41;
S
v Hewitt
2017 (1) SACR 309
(SCA)
at
para [8]
[26]
A court is required to approach the
question of sentencing, conscious of the fact that the Legislature
has ordained
life
imprisonment
on the practical prescribed period of imprisonment as the sentence
which should ordinarily be imposed for the commission
of the listed
crimes in the specified circumstances
.
The Legislature aimed at ensuring a
severe, standardised and consistent response from the courts to the
commission of such crimes
unless they were, and could be seen, to be
truly convincing reasons for a different response.
[27]
It
would be
an impossible task to attempt to catalogue exhaustively either those
circumstances or combinations of circumstances which
could rank as
such and that the best one could do was to acknowledge that one is
obliged
to keep in the forefront of
one's mind that the specified sentence has been prescribed by law as
the sentence which must be regarded
as ordinarily appropriate and
that personal distaste for such legislative generalisation cannot
justify an indulgent approach to
the characterisation of
circumstances as substantial and compelling. When justifying a
departure a court has to guard against lapses,
conscious or
unconscious, into sophistry, or spurious rationalisations or the
drawing of distinctions so subtle that they can hardly
be seen to
exist
(Malgas
at
[20]).
[28]
The greater the sense of unease a court
feels about the imposition of a prescribed sentence, the greater the
anxiety will be that
it may be perpetrating an injustice
.
Once a court reaches the point where
unease had hardened into a conviction that an injustice will be done,
that can only be because
it is satisfied
that
the
circumstances of the particular case
render the prescribed sentence unjust or, as some might prefer to put
it, disproportionate
to the crime, the criminal and the legitimate
needs of society. If that is the result of a consideration of the
circumstances the
court is entitled to characterize them as
substantial and compelling and such as to justify the imposition of a
lesser sentence
(Malgas
at
[22]).
[29]
An example of the kind of circumstances
which might qualify as substantial and compelling are those which
reduce the moral guilt
of the offender (analogous to the
circumstances considered in earlier times to be capable of
constituting
"extenuating
circumstances" in crimes which
attracted the sentence of death). That will no doubt often be so but
it would not be right to
suppose that it is only factors diminishing
moral guilt which may rank as
substantial
and compelling circumstances.
[30]
Importantly, courts are cautioned to
respect
and
not to 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.
[31]
_ A court must take into
·
account all circumstances and determine
if the prescribed sentence is indeed appropriate and proportionate
to the particular
offence before it imposes a prescribed
sentence
(S v Vilikazi (1) SACR 552
(SCA)
at para [15]).
[32]
In
Matyiti
the SCA decried the all too frequent
willingness on the part of sentencing courts to deviate from the
minimum sentences prescribed
by the Legislature for the flimsiest of
reasons that do not survive scrutiny
.
The courts have a duty, despite any
personal doubts about the efficacy of the policy or personal aversion
to
it,
to
implement
those
sentences. Our courts derive their power from the Constitution and,
like
other
arms of state, owe
their
fealty
to
it.
Our
constitutional order can hardly survive if courts fail to properly
patrol the boundaries of their own power by showing due deference
to
the legitimate domains of power of other arms of state
(S
v Matyiti
2011 SACR 40
(SCA)
at para
[23]).
[33]
The following factors were
taken
into account by the trial court, the
appellant was married at the time of the sentence
,
he was 44 years old and had a wife and
three children that he supported financially; the reports filed by
the Probation Officer
and
the
Correctional Officer which detailed the
personal circumstances of the appellant from the interviews conducted
with his family
members were was also
considered, appellant was a first offender, a breadwinner and had
dependants and an extended family.
[34]
The trial court noted that rape is a
very serious offence and is prevalent in its jurisdiction
.
It is one of the most
heinous of crimes. It is a monstrous
deed, often haunts the victim and
subjects her to mental torment for
the rest of her life, a fate often worse than the loss of life
(S
v Chapman
[1997] ZASCA 45
;
1997 (3)
SA
341
(SCA)
at 3441-J).
[35]
The appellant had raped a nine-year-old
child, who weighed about 45kgs and stood at 1
.
5
meters. Children are vulnerable to abuse, and the younger they are
the more vulnerable they are. They are usually abused by those
who
think they can get away with it, and all too often
(S
v E
1990 (2) SACR 625
(A); S v D
1995 (1) SACR 259
(A))
[36]
The court fulfils an important function
in applying the law in the community. It has a duty to maintain law
and order. The court
operates in a society, and its decisions have an
impact on the individual in the ordinary circumstances of daily life.
It covers
all possible ground. There is no space in life that it does
not include. Society demands the imposition of harsh sentences that
adequately reflect censure and retribution upon those who commit
these monstrous offences and to deter would-be offenders
(S
v Hewitt
2017 (1) SACR 309
(SCA)
at
[9] and the authorities referred thereto)
.
[37]
The evidence led shows that the
complainant had become withdrawn and no longer participated in school
activities as she used to
.
Her
grades had dropped because of the incident. She has had to deal with
community pressure; jokes from other children, often feeling
embarrassed after the
incident. Her
behaviour at schoo
l
and
at home had changed follow
i
ng
this incident. She isolates herself from other people, and the family
had to relocate follow
i
ng
the incident as they d
i
d
not fee
l
safe
living in the same hostel as the appellant.
The complainant has experienced
trauma and
emotiona
l
impact
and she has had a prolonged feeling of sadness
,
a feeling of hopelessness, continuous
crying, negative changes in her school and concentration.
[38]
The appellant contends that a life
imprisonment sentence was not warranted in the
circumstances of this case because
the rape was "not the worst
kind of rape
"
and,
it is submitted, that the trial court ought to have found that there
ex
i
sted
substantial and compelling circumstances which justified the
imposition of a lesser sentence.
[39]
In determining whether this was the
"worst kind
of
rape",
the
following factors were borne in m
i
nd
by the trial court
:
the
appellant had first used his finger to penetrate the chi
l
d;
he then climbed on top of her and raped her
.
She was only nine years o
l
d
at the time and, as the uncontroverted evidence shows, only we
i
ghed
about 45 kilograms and stood at 1
.
5
meters. The appellant on the other hand was a 44 year old grown up
man. In our view nothing could be worse
.
Rape is a horrifying crime, a cruel and
selfish act in which the aggressor treats with utter contempt the
dignity and feeling of
their vict
i
m
.
It is a humiliating
,
degrading and brutal invasion of the
privacy
,
dignity
of the victim. Worse so
,
if
the victim is a child who was only nine years old. The court in
Hewitt
said
it is an appalling and perverse abuse of male power that strikes a
blow at the very core of our claim to be a civilised society
(S
v Hewitt
2017 (1) SACR 309
(SCA)
at
[9])
.
[40]
The victim in this case had been badly affected by the rape as the
evidence shows that she had
become withdrawn and no longer
participated in school activities, her grades had dropped because of
the incident and the family
has had to relocate following the
incident.
[41]
It was argued on behalf of the appellant
that the trial court did not take into account the period
of time
that the appellant spent in custody from 2012 to 2016
.
However, a clear reading of the judgment
in the trial court shows that the period that the appellant spent in
custody was dealt
with extensively and the trial court concluded that
the period on its own did not constitute a substantial and compelling
circumstance
for the purposes of
departing
from
the prescribed sentence
.
[42]
The
appellant's youthfulness and prospects of rehabilitation must be
weighed against the objective gravity of the offences, their
prevalence in South Africa and the legitimate expectations of society
that such crimes have to be seriously punished
.
[43]
For all the reasons above, we conclude
that the sentence imposed by the trial court is not disproportionate
to the crime, the appellant
and the legitimate needs of society.
[44]
We
agree with the trial court that the appellant has not shown any
irregularity or misdirection on the part of the trial court or
that
the sentence imposed by the trial court is disturbingly
inappropriate.
Order
[45]
In the result we make the following
order:
[45
.
1]
The appeal
i
s
dismissed.
N.M
MAVUNDLA
Judge
of the High Court
MAKOLA
AJ
Acting
Judge of the High Court
COUNSEL
FOR APPELLANT
Heads were drafted by S MOENG
COUNSEL
FOR RESPONDENT
ADV K H VAN RENSBURG
Date
of the hearing
:
16
April 2018
Date
of the Judgment: 20 June 2018