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[2019] ZAGPPHC 280
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Ionnades v S (SH 363/2014, SA 8/2018, A18 /2018) [2019] ZAGPPHC 280 (3 June 2019)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION. PRETORIA
(1)
REPORTABLE:
YES/
NO
(2)
OF
INTEREST TO OTHER JUDGES: YES/
NO
(3)
REVISED.
CASE NO: SH 363/2014
DPP REF: SA 8/2018
APPEAL NO: A 18 /2018
3/6/2019
In the matter between:
IONNAIDES
CHRISTO
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
ON APPEAL
MOOSA AJ:
[1]
This is an appeal against the effective sentence of 20 (twenty years)
imprisonment
Imposed by the Regional Magistrate Benoni on 16 February
2017, upon the appellant.
[2]
On 11 August 2017, the trial co rt granted leave to appeal against
the sentences imposed
on counts 1, 3 and 4, Leave to appeal against
his convictions as well as sentences imposed In count 2 (two) was
refused. The appellant
unsuccessfully petitioned this order and the
Petition was, refused on 20 November 2017.
[3]
The Appellant was convicted and
sentenced as follows:
a).
Count 1 - Rape of a minor child during
the period 2003 -2005.
15 (fifteen) years imprisonment
b).
Count 2- lndecent
Assault.
5 (five) years Imprisonment
c).
Count 3 - Contravening Section 50(1)(a)
of the Child Care Act 74 of 1 83 (Child Abuse).
5 (five) years imprisonment
d).
Count 4 - Crimen lnjuria.
5 (five) years Imprisonment
The court ordered that the
sentences imposed on counts 2 and 4 to run concurrently with the
sentences imposed on count 1.
[4]
The crisp issue to be determined in this
appeal is whether the effective period of twenty years imprisonment
is a just and proportionate
sentence in the circumstances of this
case, and having due regard to the relevant sentencing principles.
[5]
It
Is trite that the circumstances in which a court of appeal may
interfere in sentencing discretion of a lower court are limited.
There must be either a material misdirection by the trial court or
the disparity between the sentence of the trial court and the
sentences of 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".
[1]
[6]
(a) In Anderson 1964(3) SA 494 (A) 495 D·E Rumpff JA (as he
then was) stated:
"Over the years our Courts of appeal have
attempted to
set
out various principles by which they seek to
be guided when they am asked to alter a sentence imposed by the trial
court. These
include the following: the sentence will not be altered
unless it is held that no
reasonable man ought to have imposed
such a sentence, or that
the sentence is out of all proportion to
the gravity or magnitude of the offence, or that the sentence induces
a sense of shock
or outrage, or that the sentence is grossly
excessive or inadequate, or that there was an improper exercise, of
his discretion
by the trial Judge, or that the interests
of
justice require it.·"
(b)
In
S v
Rabie
1975 (4) SA 855
(A)
at 857 D -
E the following was stated; "In any appeal against sentence,
whether imposed by a magistrate or a Judge, the court
hearing the
appeal -
(a)
should be guided by the principle that
punishment is pre- eminently a matter for the discretion of the trial
court and. ;
(b)
should be careful not to erode such
discretion: hence the further principle that the sentence should only
be altered if the discretion
has not been ‘judicially and
properly exercised’.
The test under (b) is whether the
sentence is vitiated by Irregularity or misdirection or is
disturbingly inappropriate".
(c)
In S v Kgosimore
1999 (2) SACR 238
SCA
it was held that the approach of a Court of appeal on sentence should
be the following: "It is trite law that sentence
is a matter for
the discretion of the court burdened with the task of imposing the
sentence. Various tests have been formulated
as to when a court of
appeal may interfere. These include, whether the reasoning of the
trial court Is vitiated by misdirection
or whether the sentence
imposed can be said to be startlingly inappropriate or
to
Induce a sense of shock
or whether there is a striking disparity between the sentence Imposed
and the sentence the court of appeal would have imposed.
AU these
formulations, however, are aimed at determining the same thing: viz.
whether there was a proper and reasonable exercise
of the discretion
bestowed upon the court imposing sentence. In the ultimate analysis
this is the true enquiry. (Cf.S v Pieters
1987 (3) SA 717
(A) at 727
G - 1). Either the discretion was properly and reasonable exercised
or it was not. If it was, a court of appeal has
no power to
interfere; if it was not, It is free to do so·.
(d)
In S v Malgas
2001 (1) SACR 489
(SCA) at
478 D - G the Court applied a broadened scope for the interference
and held that: "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 beer, 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 s1,1bstanltal that it
attracts epithets of the kind I have mentioned".
Having due regard to the
aforementioned principles set out by the case authority it Is clear
that the court of appeal has a very
limited scope to interfere with
the discretion of the trial court.
[7]
The appellant was convicted of one count of rape (count 1), under
circumstances were
it attracts a prescribed minimum sentence of life
Imprisonment In terms of
Section·51
of the
Criminal Law
Amendment Act 51 of 1997
, unless the court finds substantial and
compelling circumstances present which will cause it to impose a
lesser sentence.
[8]
It Is clear from the record that the
rape was committed upon the complainant when she was 11 (eleven}
years old by the appellant
who by virtue of his family relationship
to the complainant is likened to being her grandfather. The court
having weighed the appellant's
advanced age was of the view that the
imposition of life imprisonment would induce a sense of shock and
accordingly was of the
view that the Imposition of life imprisonment
would be disproportionate in the circumstances.
[2]
I pause to mention that the
appellant was born on 19 February 1942 and was 75 years old when he
was sentenced. He is now just over
77 years old at the time of the
hearing of this appeal. The Supreme Court of Appeal confirmed in S v
Hewitt
2017 (1) SACR 309
SCA at paragraph 15 held that "the
courts have considered oldness as a mitigating factor, it is
certainly not a bar to a sentence
of imprisonment'.
[9]
I have duly taken into account the
comments of the magistrate during sentencing of the appellant, and am
of the view that the court
had exercised it's discretion correctly by
deviating from the imposition of the prescribed minimum sentence on
the count of rape.
To this end, having due regard to the substantial
and compelling circumstances present, I am unable to find any
misdirection in
the exercise of the discretion by the court
a
quo
and am in agreement and find
that the sentence imposed is just and appropriate In the
circumstances. Accordingly, the sentence on
count 1, in my view does
not require any further scrutiny.
[10]
I now tum my attention to the sentence of 5 (five) years imposed on
count 3. I have duly taken
cognisance of the nature and purport of
the allegations in respect of which the appellant has been convicted
off. To this end,
the allegations amount to the fact that the
appellant assaulted and/or refused to take the complainant for
medical treatment after
she cut her wrists and pinching her. I
further have taken due note of the evidence led regarding the
undisputed evidence that the
appellant had in fact taken the
complainant for medical attention, which unfortunately fell short of
the standard required of a
responsible person.
Having carefully considered the
totality of the evidence on this count, I am similarly unable to find
any misdirection on the part
of the court a
quo
when it
sentenced the appellant as It did; and am satisfied that the
discretion of the court was exercised correctly.
[11]
The court a quo ordered that the
sentences imposed of 5 (five) years each on counts 2 and 4 run
concurrently with the sentence imposed
on count 1. Further that the
sentence of 5 (five) years imposed on count 3 is to be served
separately; which essentially means
that the appellant would only
commence serving this sentence after having served the sentence on
count 1. On the face of it and
in the ordinary course of business,
the appellant would only be released from prison at the age of 95
years; barring any parole
that he may become eligible to.
Accordingly, in my view this state
of affairs requires me to carefully scrutinise the overall cumulative
effect of the sentences
imposed and to determine whether it would,
should and can pass muster by this court, having due regard to the
advanced age of the
appellant.
[12]
In S v Munyai
1993 (1) SACR 252
(A) the
Court held that: "One instinctively baulks at the thought of a
person of this advanced age being sent to the gallows
[in our case
long term imprisonment]. And, it is seems to me, the objects of
punishment do not require this. It is true that old
age is generally
speaking, not a ground for leniency (see the writers referred to by
Rumpff JA in
S v Zinn
1969
(2) SA 537
(A) at 541G-542A). Nevertheless, our courts have (as for
example in S v Heller
1971 (2) SA 29
(A) at 55 C) treated old age per
se as a mitigating factor when deciding on an appropriate period of
imprisonment. This has been
done on the basis of compassion coupled I
think with the perception that the community expect old people to be
treated with eympathy
(DP van der Merwe: Sentencing 5,.26). Perhaps
the reason for this Is embodied in the saying "pity at least is
due to a feeble
octogenarian" (Oxford English Dictionary
sv
Octogenarian)".
[13]
t am mindful of the fact that the
Magistrate during his judgment duly verbalised and took the advanced
age of the appellant into
account when determining an appropriate
sentence on count 1. I have also observed that the court a quo also
briefly referred to
the cumulative effect of the sentence when It
determined to order the sentences on counts 2 and 4 to run
concurrently on count
1.
However,
I am of ·the view that despite the Magistrate verbalising the
cumulative effect of the sentence, he simply did not
seriously weigh,
take into account, give credence and carefully apply his mind to the
actual cumulative effect of the sentence
upon the appellant, having
due regard to his advanced age. In my view had he genuinely done so,
the result would have been markedly
different.
[14]
In
S v
Skenjana
1986
(3) SA
S1
(A) S
4I
..S6B
Nicholas: JA
stated: “A
sentence of 20 years
Imprisonment Is undoubtedly very severe, and it is not
a
sentence which I would have imposed
had I been sitting
as
the
trial Judge. My personal view Is that
the
p
ublic interest is not necessarily
best served by the Imposition of very long sentences of Imprisonment.
So far as deterrence is
concerned, there is no reason to believe that
the deterrent effect of
a
prison
sentence is always proportionate to its length. Indeed, It would
seem
to be likely that in this field there
operates
a
law
diminishing returns: a point is reached after which additions to the
length of
a
sentence
produce progressively smaller increases in deterrent effect, so that,
for example, the marginal deterrent value of a sentence
of 20 years
over one of say 15 years may not be significant. Similarly in regard
to
the
aspect
of retribution: This has tended to yield ground to the aspects of
deterrence and reformation, but it Is not wrong that, in
determining
a proper sentence, the Courts should give some recognition to the
natural Indignation and the fears and apprehensions
of Interested
persons and the community at large.
"
See
too
Morris
1988 (2) SA 643
(A);
Machasa,
1981 (2) SACR
308
(A) and
M
1993 (1) SACR 126
(A).
[15]
In S v Barend ·
2010 (2) SACR 816
ECG the appellant was a 72 (seventy two) year old man sentenced to 20
(twenty years) imprisonment for raping a minor on one occasion.
The
Full Court relying on another matter from the same division reduced
the appellant's sentence to 10 (ten) years imprisonment.
In S v
Vllakazi
2009 (1) SACR 562
(SCA) the victim was under 16 years old.
The sentence of life Imprisonment was set aside and substituted with
15 (fifteen) years
imprisonment from which two years are to be
deducted when calculating the date upon which the sentence is to
expire. Further, In
S v Tshoga
2017 (1) SACR 420
(SCA) the victim was
10 (ten) years old. The sentence of life Imprisonment was set aside
and substituted with 1O (ten) years imprisonment.
See also S
v
Ngomane
2007 (2) SA 536
(W) where
the rape victim was 13 (thirteen) years old, the sentence of 25
(twenty five) years imprisonment was on appeal reduced
to 15
(fifteen) years imprisonment.
[16]
Section 12 (1} of the Constitution of
the Republic of South Africa 108 of 1996 provides that:
Everyone has the right to freedom and security
of the person, which Includes the right-
"(e)
not to be treated or punished in a cruel, inhuman or degrading way".
I pause to mention that the
Constitutional Court has not declared the exact meaning of a cruel
inhuman or degrading sentence and
in S v Williams
1995 (3) SA 832
CC
elected to use the dictionary meaning of the words.
[3]
[17]
In S v Dodo
[2001] ZACC 16
;
2001 (3) SA 382
CC at
paragraph 37, the Constitutional Court went further and held that:
The concept of proportionality goes to the heart of the
Inquiry as to
whether punishment is cruel, inhuman or degrading, particularly
where, as here, It Is almost exclusively the length
of time for which
an offender is sentenced that is an issue.".
[18]
Having due regard to all the factors
needed to be taken into account and more especially the cumulative
effect of the effective
sentence It is clear In my mind that the
court
a quo
misdirected
itself and thereby caused a disparity between the sentence Imposed
and the sentence that Is proportional to all the
relevant facts. It
Is clear that the effective sentence of 20 years Imposed would extend
beyond the appellant's natural life expectancy
and therefore the
sentence Is shockingly inappropriate. Further, I am of the view .
that the sentence is vitiated by misdirection,
is disturbingly
inappropriate, cruel and Inhuman. Accordingly, It warrants
interference by this Court.
[19]
In concluding I am reminded of the
comments made by Harms J in
S v
Mhlakaza
1997 (2)' All SA 185
(A)
wherein
he held as follows:
"The object
of sentencing is not to satisfy public opinion but to serve the
public interest.... A sentencing policy that caters
predominantly or
exclusively for public opinion is Inherently flawed'.
[20]
In the result, I make the following order:
1.
The appeal against the sentence on Count
1 ls dismissed.
2.
The appeal against the sentence on Count
3 is upheld.
3.
It is ordered that the sentence on Count
3 run concurrently with the sentence on Count 1.
4.
The Appellant will thus serve a sentence
of 15 (fifteen) years imprisonment.
5.
The sentence la antedated to 16 February
·2017, being the date upon which the Court a quo imposed the
sentence.
C
I MOOSA
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION
PRETORIA
I
agree and it is so ordered:
T·A
N MAKHUBELE
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION
PRETORIA
Counsel for
Appellant:
Adv C De Beer
Instructed
by:
WCI & Shapiro Attorneys
Hyde Park, Johannesburg
0824589797
Counsel
for Respondent:
Adv J
P Krause
Instructed
by:
Director of Public Prosecutions
Pretoria
(012)3516752/0842948348
Data
of Hearing:
29 May 2019.
Data
of Judgment:
03 June 2019
[1]
S v Malgas
2001 (1) SACR 469
(SCA) at 478 d-g
[2]
Record
page
n1, lines 9-11.
[3]
[24] The. Oxford English Dictionary defines 'cruel' as “causing
or inflicting pain without pity,” ‘Inhuman•
as
“destitute of natural kindness or pity, brutal, unfeeling,
savage, barbarous” and ‘degrading’ as “lowering
in character or quality, moral or intellectual debasement”.