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[2017] ZASCA 107
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Palmer v S (979/2016) [2017] ZASCA 107 (13 September 2017)
SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 979/2016
In
the matter between:
SHAWN
PALMER
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Shawn
Palmer v The State
(
599/2016
)
[2017] ZASCA 107
(13 September 2017)
Coram:
Shongwe
AP, Seriti JA and Mokgohloa AJA
Heard:
16
August 2017
Delivered:
13
September 2017
Summary:
Criminal
Procedure – rape – sentence – life imprisonment –
minimum sentence in terms of
Criminal Law Amendment Act 105 of 1997
–
substantial and compelling circumstances – proper approach –
to require exceptional circumstances for the determination
of whether
substantial and compelling circumstances exist, incorrect –
sentence of life imprisonment set aside and replaced
with 15 years'
imprisonment.
ORDER
On
appeal from:
Gauteng
Local Division of the High Court, Johannesburg (Wright and Keightley
JJ sitting as court of appeal):
1
The appeal is upheld.
2
The order of the court below is set aside and replaced with the
following:
‘
(a)
The appeal is upheld.
The
sentence imposed by the trial court is set aside and replaced
with a sentence of 15 years’ imprisonment which is
antedated
in
terms of
s 282
of the
Criminal Procedure Act 51 of 1977
to 30 October
2013.'
JUDGMENT
Seriti
JA (Shongwe AP and Mokgohloa AJA concurring):
[1]
The appellant Mr Shawn Palmer, appeared in the regional court,
Johannesburg on a charge of rape in contravention of the provisions
of
s 3
of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007
, read with the provisions of
s 51(1)(
a
)
and Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
.
[2]
The allegations levelled against the appellant were that on 21 August
2008 he unlawfully and intentionally sexually violated
the
complainant (then 13 year old girl) by having sexual intercourse with
her against her will.
[3]
On 6 September 2013 the appellant was convicted as charged and
sentenced to life imprisonment on 30 October. On 10 January 2014
the
trial court granted the appellant leave to appeal against the
sentence imposed.
On
17 March 2016 the appellant’s appeal against his sentence was
dismissed by the Gauteng Local Division, Johannesburg. The
appellant
with the special leave of this court now appeals against his
sentence.
[4]
The issue in this appeal is whether the trial court erred in
concluding that there were no substantial and compelling
circumstances
present that justified the imposition of a lesser
sentence than the prescribed minimum sentence of life imprisonment
for the rape
of a person under the age of 16.
[5]
The complainant RJ was 13 years old at the time of the offence and
she was staying at Abraham Kriel Children’s Home at
Langlaagte.
On 21 August 2008 the complainant and her 16 year old friend Amanda
who was also staying at the same children’s
home, absconded
from the children’s home through the fence which they had cut
open. According to the complainant when they
absconded from the
children’s home they intended going to her father’s house
in Newlands, they instead ended up at
a soccer ground in the Crossby
area.
Prior
to this incident, the complainant had absconded from the children’s
home on several occasions and was admitted into
a dagga
rehabilitation program.
[6]
At the soccer ground, the complainant and her friend met the
appellant and his friends namely Slo and Kenny. The three men
introduced themselves. The complainant and her friend met the three
men for the first time on that day. They had a discussion with
the
three men and later Amanda said she was hungry, Kenny offered to buy
them food and they all went to a shop where they bought
chips and
bread. They then went to a shebeen in the vicinity where they all ate
the food and consumed alcohol.
[7]
After leaving the shebeen they made their way to one Michael’s
place where dagga was sold, which they then purchased and
subsequently smoked. At that stage it was late in the evening between
18h00 and 19h00 and they made arrangements for where they
were going
to sleep that night. It was arranged that Amanda will go and sleep
with Slo and the complainant will go and sleep at
the appellant’s
place. Upon leaving Michael’s place, Amanda left with Slo and
the complainant left with the appellant
and they proceeded to the
appellant’s place of abode. The appellant took the complainant
to his room in the backyard where
he stayed. In the said room, the
appellant requested her to have sexual intercourse with him, but she
refused. She informed the
appellant that she wanted to go to where
Amanda was after which the appellant agreed to take her there.
[8]
They
left the appellant’s place of abode and walked a long distance
to a certain block of flats. They passed the said block
of flats and
walked into a veld where the appellant grabbed her, put her down on
the grass, loosened her trousers and raped her,
without the use of
any protection. At this juncture it is also pertinent to mention that
the appellant threatened the complainant
with a knife to her throat
that if she screamed he would kill her.
[9]
After
raping her, the appellant took her to the place where Slo stayed.
There they found Slo, Amanda and Kenny in front of Slo’s
house
and they were chatting. She then informed both Amanda and Kenny that
the appellant had raped her.
[10]
All five of them, namely the complainant, the appellant, Amanda,
Kenny and Slo then proceeded once again to Michael’s
place.
When they arrived at Michael’s place, the appellant said that
the complainant must go with him but she refused. The
appellant then
tried to force her to go with him, she screamed and Michael and two
of his friends came out of the house. At this
point the appellant let
go of her and the complainant and Amanda then went into Michael’s
flat. They slept at Michael’s
place and the following morning
the complainant was taken to the children’s home.
[11]
In her evidence, the complainant testified that the act of sexual
penetration was painful and it felt like something tearing
inside of
her. During the time he was raping her she called out aloud to God
for help and the appellant mockingly retorted and
said that not even
God can help her. The complainant testified that she suffered severe
pain not only during the rape but also
for a substantial period after
the rape, stating further that she could not walk properly for nearly
two to three weeks after the
rape and that she no longer had any
trust in men, including her father.
[12]
Dr
Morgan examined the complainant on 22 August 2008. No physical
injuries were observed during the medical examination. The doctor
testified that the complainant, at the time of the alleged rape, was
sexually active.
[13]
The pre-sentencing report was submitted to the trial court. The
report amongst others indicated that at the time of the commission
of
the offence, the appellant was 29 years old and he was a first
offender. He was raised by his mother and stepfather since he
was 10
years old. He was raised in a stable home environment where morals
and values were instilled in him. He left school when
he was in grade
11. He was employed in the family taxi business. He was intoxicated
on the day of the commission of the offence
but still remembered what
transpired. He still denied that he raped the complainant and stated
that he had consensual intercourse
with the complainant.
[14]
The appellant was arrested on 20 October 2008 and released on bail on
25 March 2009. On 27 October 2011 his bail was withdrawn
and he was
rearrested on 14 September 2012. In mitigation of sentence, the
appellant’s legal representative informed the
trial court that
the compelling circumstance was that the appellant was under the
influence of dagga and alcohol at the time of
the commission of the
offence.
[15]
The offence for which the appellant was convicted falls within the
ambit of
s 51(1)
of the
Criminal Law Amendment Act 105 of 1997
which
prescribes that a sentence of imprisonment for life should be imposed
in the absence of substantial and compelling circumstances.
[16]
When considering the sentence to be imposed, the trial court found
that there were mitigating factors present which included
the
following: (a) that the appellant was employed; (b) he was a first
offender; (c) that he has a five year old son that he maintains;
(d)
that he was in detention for some time and; (e) that the complainant
did not sustain any serious physical injuries. The trial
court then
considered the aggravating factors and tabulated same as follows: (a)
that rape is a serious offence, particularly of
minor girls; (b) that
the legislature prescribed life imprisonment for such offences; (c)
that rape is rife in the country; (d)
that he threatened the
complainant with violence and; (e) that the incident took place at
night in a deserted place.
[17]
After considering both the mitigating and aggravating factors the
trial court held that the mitigating factors were of a general
nature
and were not exceptional mitigating factors, and therefore concluded
that there were no substantial and compelling circumstances
that
justified the imposition of a sentence lesser than the prescribed
minimum sentence of life imprisonment.
[18]
In
S
v Mohomotsa
2002 (2) SACR 435
(SCA) para 10, this court rejected the suggestion
that for circumstances to qualify as substantial and compelling they
must be
exceptional. In
S
v Sikhipha
2006 (2) SACR 439
(SCA) para 16, this court again stated that where
substantial and compelling circumstances exist that justify the
imposition of
a sentence lesser than the prescribed minimum sentence,
such circumstances need not be exceptional. It is for the court
imposing
sentence to decide whether the particular circumstances of
the case warrant the imposition of a sentence lesser than the
prescribed
sentence or not. In this process, factors that are
traditionally taken into account for purposes of determining an
appropriate
sentence are considered.
[19]
In my view the trial court committed a serious misdirection in
considering whether exceptional circumstances were present in
order
to determine whether it can deviate from the prescribed minimum
sentence. The sentence of life imprisonment imposed by the
trial
court must therefore be set aside and this court must consider what
an appropriate sentence would be in the circumstances
of this case.
When considering an appropriate sentence the court must keep in mind
the sentence that the legislature considers
appropriate in a case of
this nature together with the aggravating and mitigating factors.
A
court must also have regard to the triad of factors relevant to
sentence, which include the personal circumstances of the appellant,
the seriousness of the offence and the interests of society (see
S
v Zinn
1969 (2) SA 537
(A) at 540G-H).
S
v Sikhipha
supra para 16 and
S
v Abrahams
2002 (1) SACR 116
(SCA) para 13.
[20]
In the present case, when the aggravating and mitigating factors are
taken into account, together with the facts of this case,
my view is
that the prescribed minimum sentence of life imprisonment is not an
appropriate sentence. There were therefore substantial
and compelling
circumstances justifying a sentence lesser than life sentence
imposed.
[21]
In my view, after taking into account all the circumstances of this
matter and the benchmark created by the Act, I consider
a sentence of
15 years' imprisonment to be an appropriate sentence.
[22]
In the circumstances I make the following order:
1
The appeal is upheld.
2
The order of the court below is set aside and replaced with the
following:
'(a)
The appeal is upheld.
The
sentence imposed by the trial court is set aside and replaced with a
sentence of 15 years’ imprisonment which is antedated
in
terms of
s 282
of the
Criminal Procedure Act 51 of 1977
to 30 October
2013.'
_________________
LW SERITI
JUDGE
OF APPEAL
APPEARANCES
:
For
Appellant:
P du Plessis
Instructed by:
BDK Attorneys
David H Botha, Du
Plessis & Kruger Inc, Johannesburg
Symington & De
Kok
Attorneys,
Bloemfontein
For
Respondent:
Mr P Schutte
Instructed by:
The Director of Public Prosecutions, Johannesburg
The Director of
Public Prosecution, Bloemfontein