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[2018] ZAGPPHC 715
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Ngobeni v S (A684/16) [2018] ZAGPPHC 715 (23 February 2018)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO
OTHER JUDGES
CASE
NO: A684/16
23/2/2018
In
the matter between:
GIVEN
NGOBENI
APPELANT
and
THE
STATE
RESPONDENT
JUDGMENT
KUBUSHI,
J
INTRODUCTION
[1]
The appellant was convicted of two
charges in the regional division, Mpumalanga. The two convictions
emanate, respectively, from
two allegations of rape of a 14 year old
girl and a 37 year old woman. The incidents happened seven months
apart, that is, on 18
July 2014 and 7 December 2014. The appellant
initially faced a third count of assault with intent to do grievous
bodily harm committed
against the complainant in count 2. He was
acquitted on that count at the end of the trial as his actions were
found to have emanated
from the rape in count 2. The appellant was
legally represented throughout the trial.
[2]
The appellant pleaded not guilty on all
counts but was convicted as charged on count 1 and 2. He was as a
result sentenced to life
imprisonment for the rape in count 1 and ten
years imprisonment for the rape in count 2. The trial court made
further orders: in
terms of
s 39
(2)
(a)
(i) of the
Correctional Services Act
111 of 1998
subjecting the two sentences to the authority of the
Commissioner;
s 103
of the
Firearms Control Act 60 of 2000
declaring
the appellant unfit to possess a firearm; s 50 of the Criminal Law
Amendment Act 32 of 2007 placing the appellant's particulars
on the
National Register of Sex Offenders.
[3]
In terms of s 309 (1)
(a)
of the Criminal Procedure Act 51 of
1977 ("the
Criminal Procedure Act"
;) the appellant has an
automatic right of appeal against the sentence of life imprisonment
imposed in respect of the conviction
in count 1. He is before us
having exercised that right appealing the sentence only.
BACKGROUND
[4]
The complainant in count 1 is the step daughter of the appellant. Her
story is that
on the day in question the appellant raped her by
inserting his penis into her anus whilst she was there to visit her
mother. The
appellant's mother, who was in the house preparing food
at the time, saw the complainant leave the appellant's bedroom just
after
the time the appellant allegedly raped her. The appellant's
mother testified to this effect, but could not testify as to whether
the rape took place or not. After leaving the appellant's bedroom,
the complainant is said to have been agitated and crying and
refused
to eat. She went to the bedroom of the appellant's grandmother to
sleep. During the night the complainant phoned the police
and
reported the rape and the appellant was subsequently arrested.
[5]
In count 2, the complain-ant is the wife of the appellant's uncle,
that is, the uncle
is the brother to the appellant's mother. The
complainant testified that on the day in question it was at night and
she was in
a pit latrine outside her home when she was confronted by
the appellant. The appellant assaulted her and raped her from behind.
When the appellant released her she ran, half naked, to her place
which was nearby, and reported the rape to her children. The
appellant's DNA was found in the semen samples taken from the inside
of the complainant's private parts.
THE GROUNDS OF APPEAL
[6]
The grounds of appeal are summarised in the appellant's heads of
argument being, firstly,
that the sentence of life imprisonment does
not show mercy to the appellant and renders the sentence
unnecessarily harsh and inappropriate.
Secondly, that the trial court
erred in not finding any substantial and compelling circumstances
that justifies a lesser sentence
than that of the minimum sentence.
The submission is that the following circumstances, taken together
and seen as a whole, constitutes
substantial and compelling
circumstances, that is: the age of the appellant and the fact that he
was a first offender and did not
have any pending cases against him;
the period of two years the appellant spent in custody awaiting
trial; the remorse he showed
during the sentencing proceedings; he
was self-employed prior to his arrest earning about R2 600
per
month by cutting grass and working as a painter; he is not
married but has a child of 7 years; and the fact that he suffers from
a mental illness which he sustained in a motor vehicle accident.
DIMINISHED CRIMINAL RESPONSIBILITY
[7]
Before us, however, what was argued on behalf of the appellant was
the failure by
the trial court to attach enough weight to a possible
mental condition/illness or brain injury of the appellant for the
purposes
of sentence. The contention is that the trial court ought to
have requested further evidence/information in that regard and as
such canvassed the possibility that the appellant suffers from a
mental condition and thus lacked insight into offences committed.
Clarification in that regard, so it is argued, called for expert
witness evidence or a referral in terms of
s 77
and
78
of the
Criminal Procedure Act. The
trial court is said to have not canvassed
why the prosecutor inferred that the appellant thought the
proceedings was a joke. In
this regard we were referred to a judgment
in
S v Opperman
and Another
[1]
in regard to the
application of the minimum sentence where lack of insight is at
issue.
The Law Applicable
[8]
A person has diminished criminal responsibility if it is found that
at the time of
the commission of the act in question she/he was
criminally responsible but her/his capacity to appreciate the
wrongfulness of
the act or to act in accordance with the appreciation
of the wrongfulness of the act was diminished by reason of
pathological or
non-pathological factors.
[2]
[9]
A variety of factors may affect the offender's emotions and mental
health to such
an extent that her criminal responsibility may be
diminished. These are factors like mental illness, provocation,
jealousy, severe
emotional stress or even intoxication. When a court
finds that any of those factors have substantially reduced the
offender's power
of restraint and self-control, the factor becomes
highly relevant for sentence.
[3]
Analysis
[10] In my
view, findings of diminished criminal responsibility must be
established within the factual matrix
of the finding of guilt. This
is so because such findings affect the moral blameworthiness of the
offender. Where the issue comes
up after conviction, it does not form
part of the factual matrix relating to the conduct of the offender
and does not reflect in
what manner it would have affected her/his
moral blameworthiness. The issue can, therefore, not be entertained
at this late stage
of the proceedings.
[11]
It is common cause that, in this
instance, the issue of diminished criminal responsibility was raised
only at the sentencing stage
when the appellant, whilst testifying in
mitigation of sentence, stated that he was 'once sick mentally' as a
result of a motor
vehicle accident and that he had been on medication
before his arrest. It does not appear from the record that the
appellant's
legal representative was aware of this factor. lt was
never raised as a defence nor was it ever mentioned during the trial
that
the appellant has a mental illness.
[12]
As in this instance, in
Opperman,
the appellants relied on diminished
criminal capacity due to pathological reasons (that is, mental
illness). What, however, differentiates
the two cases from each other
is that in
Opperman
the
findings of diminished criminal responsibility were made by the trial
court at the end of trial but before sentence. The findings
were
based on the factual matrix of the findings of guilt. Whilst the
appellants were found to have acted wrongfully, their knowledge
of
wrongfulness could not be matched to their insight into the
seriousness of the offences they committed. The appeal court made
a
finding, as well, that a reading of the appellants' oral testimony
confirmed that the appellants were not at the intellectual
level of
normal men in their late twenties. ln this instance, however, no
findings of mental illness were made at the time of conviction
the
issue came up at sentencing stage.
[13]
Even if it can be said that the findings
of diminished criminal responsibility can still be made during
sentencing, the matter before
us would not qualify for the following
reasons:
13.1
Firstly, there must be a connection
between the factor that caused the diminished responsibility and the
commission of the offence.
[4]
From the reading of the record, there is no evidence that indicate
the connection between the appellant's alleged mental illness
and the
commission of the offences he is convicted of. I say so because when
giving evidence in mitigation of sentence the appellant
was asked by
the court whether the accident caused epilepsy or 'what mental
illness', his response was that when he converses with
a person he
loses his temper very easily and becomes angry. This cannot be said
to have any connection with the offences of rape
he committed. I do
not believe that when he raped the complainants he had lost his
temper, became angry and ended raping them.
It does not support the
appellant ' s submission on behalf of the appellant that he lacked
insight into the offences. The trial
court is correct to have made a
finding that the appellant indicated anger problems which are not
regarded as mental illness.
13.2
Secondly, from my reading of the oral
evidence of the appellant on record there is no sufficient factual
foundation to support a
finding that the appellant acted with
diminished criminal responsibility when he committed the offences.
The comments which are
raised by the appellant in the heads of
argument made by the prosecutor and the trial court during trial, do
not in my view raise
the reasonable possibility that the appellant
was acting completely irrationally and that his actions are the
product of mental
illness. For example, the comments by the
prosecutor that the appellant was taking the proceedings as a joke do
not have any relevance
to his mental status they were aptly said in
response to his request that he be allowed to go back to the witness
stand and apologise
to the complainants.
13.3
Lastly, there was no obligation on the
trial court to make an order calling for experts' reports to verify
the veracity of the appellant's
allegations of mental illness.
Whether the accused acted with diminished responsibility must be
determined in the light of all
the evidence, expert or otherwise. The
accused's
ipse dixit
may
suffice as well, provided that a proper factual foundation is laid
which gives rise to reasonable possibility that he so acted.
[5]
Thus, the failure by the trial court to order experts' reports in the
circumstances of this case does not take the appellant's
case any
further. The prosecutor did cross-examine the appellant on this issue
and the trial court itself, also sought more information
from the
appellant. Based on the appellant's
ipse
dixit
and the further information
extrapolated from the appellant, the trial court concluded that the
appellant had an anger problem rather
than a mental illness. The
trial court was entitled, therefore, to decide on the appellant's
ipse dixit,
as
it did.
APPROPRIATE
SENTENCE
[14]
In order to impose a sentence incorporating the objectives of
punishment, the trial court considered
the nature and seriousness of
the offences, the appellant's personal circumstances and the interest
of society.
[15]
The most important features of the appellant's personal circumstances
included the fact that
he was 27 years at the time of sentencing with
no previous convictions, he had one child of 7 years living with the
mother who
is the child's primary care-giver; the child receives a
social grant; he was employed prior to his arrest and spent two years
in
custody awaiting trial. He did not show remorse.
[16]
When considering the nature and gravity of the offence, the trial
court took into account the
following factors: the close relationship
between the appellant and the complainant - the complainant was his
step daughter; the
trauma experienced by the complainant - she was
distressed and had to phone the police in the middle of the night;
the seriousness
of the injuries; and the prevalence of the offence of
rape within the family set up. The trial court also considered the
interest
of society in the sense of protection of young, vulnerable
and trusting persons like the complainant against persons like the
appellant.
[17]
The prescribed minimum sentence is, in
this instance, applicable unless there are substantial and compelling
circumstances. It is
common cause that the complainant was a child
under 16 years of age at the time she was raped, thus,
s 51
(1) of
the
Criminal Law Amendment Act 105 of 1997
read with Schedule 2 which
calls for life imprisonment is applicable. Having considered all the
traditional factors of sentencing,
the trial court found no
substantial and compelling circumstances and imposed a sentence of
life imprisonment.
[18]
The trial court was correct to have
found no substantial and compelling circumstances. The personal
circumstances of the appellant
are overshadowed by the seriousness of
the injuries sustained by the complainant - a young girl of only 14
years. The undisputed
evidence of the doctor who examined the
complainant after the rape is that the complainant discharged blood
from the anus with
bruising, swelling and multiple fissures around
the anal orifice with tweaking and a loss of tonicity due to repeated
forced penetration
of a blunt object. The child's vagina discharged
faeces due to perforation of the wall between the vaginal and anal
canals. Tweaking
happens when the anus is touched with a finger
without the contraction of the anus and sphincter. Under normal
circumstances when
you touch the anal sphincter it contracts. The
sphincter was very loose. The hypo tenacity of the tone/sphincter
grip is normally
lost if there is an object which forcefully
penetrated the anus, it loses its tonicity. The complainant was
referred to a gynaecologist
because of the perforation. It was said
that such a wound can sometimes heal on itself if it is not a big
hole. Unfortunately,
no report from the gynaecologist was received to
determine the extent of the injuries, but the severity of the
injuries cannot
be ignored.
[19]
The trial court was as a result correct to have imposed a sentence of
life imprisonment in the
circumstances of this matter. The injuries
sustained are horrendous and calls for a very grave punishment. The
sentence of life
imprisonment meted by the trial court is to me
appropriate. Any other sentence would to my mind overemphasise the
appellant's personal
circumstances whilst underemphasising the
seriousness of the offence. To elevate the personal circumstances of
the appellant above
the interest of society in general and the
complainant's in particular, would not serve the well-established
aims of sentencing.
[6]
[20]
That the sentence imposed does not show mercy to the appellant is out
of question in the circumstances
of this matter. Whilst mercy could
find a place in almost all cases but misplaced sympathy must be
avoided and an appropriate sentence
be determined.
[7]
The sentence in this instance is appropriate, it fits the offence and
the offender and it is in the interest of society.
ORDER
[21]
In the circumstances the appeal is dismissed.
E. M. KUBUSHI,
JUDGE
OF THE HIGH COURT
I
concur
V.T.
MTATI
ACTING
JUDGE OF THE HIGH COURT
Appearances:
On
behalf of the appellant: Adv:
J HENZEN-DU TOIT
Instructed
by:
PRETORIA
JUSTICE CENTRE
2
nd
Floor FNB Building
206
Church Street
PRETORIA
0001
On
behalf of the respondent:
Adv: M.J . NETHONONDA
Instructed
by:
DIRECTOR
OF PUBLIC PROSECUTIONS
Presidential Building
28
Church Square
PRETORIA
0001
[1]
2010 (2) SACR 248 (SCA).
[2]
See
S v Shapiro
1994 (1) SACR 112
(A) at 120d - f.
[3]
See
SS Terblanche: A Guide to Sentencing in South Africa 3ed p224 to 225
and the cases quoted thereat.
[4]
See S v Mathee
1992 (1) SACR 186
(A) at 197e.
[5]
See D Mnisi v The State (391/2008)
[2009] ZASCA 17
(19 March 2009)
para 5
[6]
See S v RO
2010 (2) SACR 248
(SCA) para 20.
[7]
See S v RO above para 40 -42.