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[2018] ZAGPPHC 718
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Khoza v S (A672/2016) [2018] ZAGPPHC 718 (2 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
THE
GAUTENG DIVISION, PRETORIA
CASE
NO: A672/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
DAVIDKHOZA
Appellant
and
THE
STATE
Respondent
JUDGMENT
Mdalana-Mayisela
AJ
1.
The appellant was charged in the Regional Court,
Klerksdorp, on one
count of rape read with the provisions of section 51(1) of the
Criminal Law Amendment Act, 105 of 1997 ("the
Act"). He
pleaded not guilty. On 23 July 2015 he was convicted on rape and a
sentence of life imprisonment was imposed. He
was legally represented
throughout the proceedings in the trial court. This is an appeal
directed against sentence only, by way
of an automatic right of
appeal noted in terms of
section 309(l)(a)
of the
Criminal Procedure
Act 51 of 1977
.·
2.
The appeal is brought on the grounds thc1t the trial Court
misdirected itself by finding that there are no substantial and
compelling circumstances, and that in imposing a sentence of life
imprisonment the trial Court erred as the sentence is
disproportionate given the circumstances of this case. The respondent
supports
the sentence and submitted that it should stand.
3.
The circumstances of the crime were that the appellant
abducted the
complainant, a 8 year old girl, whilst she was playing after hours
behind a secondary school, and he took her
to
his home. On
arrival at the appellant's home, he took the complainant into a
bedroom and ordered her to undress her clothes. She
refused to
undress, he throttled her and when she screamed he hit her with a
clenched fist on her face and threatened to kill her.
He assaulted
her on her head, forehead and face. He undressed her trousers and
panty, and raped her without using a condom. Thereafter
he
accompanied her back to some shops and left her there. She went to
her parental home. On arrival, she went to bed without eating
dinner.
The following morning, when her mother was warming water for her to
prepare to go to school, her mother noticed
that she sustained head and facial injuries. She
reported to her mother that she was assaulted and raped by the
appellant.
The appellant maintained his innocence throughout the
proceedings in the trial court.
4.
In considering an appropriate sentence on appeal one must
not lose
sight of the settled principle of law that sentencing is pre
eminently a matter for the discretion of the trial Court.
The Court
of appeal may interfere with the sentence imposed provided the trial
Court materially misdirected itself or where the
sentence imposed is
shockingly inappropriate (S v Kruger
2012 (1) SACR 369
- 372 para 8).
5.
Before us, the counsel for the appellant contended that
the trial
Court misdirected itself in finding that no substantial and
compelling circumstances exist justifying imposition of a
lesser
sentence. He argued that the personal circumstances of the appellant
together with the period of 1 year 5 months spend in
prison
awaiting
trial and the lack of serious physical, emotional and
psychological injuries suffered by the complainant, cumulatively
taken, amount
to substantial and compelling circumstances.
6.
The
trial Court considered the personal circumstances of the appellant,
and there is nothing which I find to be substantial and
compelling.
He was 31 years old at the time of sentencing. He completed grade 9
at school. He was unemployed and received a government
grant for
epilepsy. He is unmarried and has three children aged 14; 6 and 8
years. In regard to his epilepsy condition, medical
and hospital
facilities are available in prison. In S v Berliner
[1]
the Court held that
'while
a convicted person's health may, depending on the circumstances,
sometimes afford a good reason for not sentencing him to
imprisonment, there is certainly no general rule that ill-health
automatically relieves a criminal from being Imprisoned. Medical
and
hospital facilities are available for convicts.'
In
this matter the state of the appellant's health was not overlooked by
the trial court. Furthermore, epilepsy can be medically
controlled.
7.
In
S v Vilakazi
[2]
the Supreme
Court of Appeal with respect to what constitutes substantial and
compelling circumstances held as follows:
"In
cases of serious crime the personal circumstances of the offender by
themselves, will necessarily recede into the background.
Once it
becomes clear that the crime deserves of a substantial period of
imprisonment the question whether accused is married or
single,
whether he has two children or three, whether or not he Is in
employment, are in themselves largely immaterial to what
that period
should be, and those seem tometobe the kind of Jllmsy' grounds that
Ma/gas said should be avoided. But they are nonetheless
relevant in
another aspect. A material consideration Is whether the accused can
be expected to offend again."
8.
The respondent proved a previous conviction of assault
with intent to
do grievous bodily harm against the appellant. The appellant's
previous conviction is relevant to this case. The
complainant
testified that the appellant throttled and assaulted her on the face,
forehead and head. He also threatened to kill
her if she continued
screaming. The complainant's mother testified that the complainant
had visible physical injuries on her head,
face and forehead. The
head and the forehead of the complainant were both swollen the
following morning. The medical doctor who
examined the complainant
after the incident also testified about the gynaecological and the
physical injuries the complainant suffered.
The above show that the
appellant is a violent man. There was no reason for him to use
violence, he could easily overpower the
complainant, a glrl of eight
years at the time of rape. He is a danger to the society.
9.
No
victim impact report was tendered In the trial Court. The State did
not present the evidence on emotional and psychological trauma
suffered by the complainant. In Munyani v The State
[3]
, life imprisonment for rape of a 13 year old victim by a 55 year old
perpetrator was confirmed. The Court held that
'despite
the fact that no evidence
was
led on the effect of rape on the complainant, the lack of such
evidence should not
be
construed as an absence of post-traumatic stress.'
In
this matter the complainant testified that she was crying during the
rape incident and on arrival at her parental home, she went
to bed
without eating dinner. This evidence shows that the complainant was
traumatised and hurting In S v Vllakazi supra para 56
the Supreme
Court of Appeal remarked that '... it is sufficient to say that it is
evident from the literature that emotional distress
and damage that
accompanies rape might be extensive even if It is not manifested
overtly and even more is that so in the case of
young girls.'
10.
The
other aggravating factors are the lack of remorse, the appellant
maintained his innocent throughout the trial, and he did not
make use
of a condom during the commission of the offence. In S v PB
[4]
,
the Court held that:
"The
appellant did not use a condom. This is yet another aggravating
factor, specifically at a time when the whole world is
grappling with
the scourge of the HIV and Aids pandemic. The majority of rape
victims are not only left to deal with the physical,
emotional and
psychological trauma of rape, but also exposed to the possible
hardships associated with living with HIV, its side
effects and
stigma. The only manner in which victims may be protected is through
anti-retroviral drug, which also has side effects."
11.
The
appellant spent one year five months in custody awaiting trial.
Awaiting trial detention on its own does not provide for a
substantial and compelling circumstance that justifies the imposition
of a lesser sentence than any minimum sentence called for
by the law.
In S v Dlamini
[5]
the Full
Bench Court held that:
"
The fact that he spent two years in prison awaiting trial does
not mean that the sentence court (or the Court of Appeal) should now
impose another sentence lesser than life imprisonment. For the trial
Court (or Court of Appeal) to be able to properly compute
a lesser
sentence than life imprisonment it will have to take parole
legislation and policies into account to determine how long
a
sentence of life imprisonment would effectively be, before it can be
adjusted downward. That Is, however the domain of the executive,
and
courts should be wary to tread on the terrain of other arms of
government in order to preserve the separation of powers
doctrine....n
12.
In
S v Jansen
[6]
, the learned judge
aptly put It as follows:
“
,
rape of the child is an appalling and preserve of male power. It
strikes a blow at a very core of our claim to a civilised society...'
"The community Is entitled to demand that those who perform such
preserve acts of terror be adequately punished, and that
the
punishment reflect the societal censure, it is utterly terrifying
that we live in a society where children cannot play in the
streets
in any safety: where children are unable to grow up in the kind of
climate which they should be able to demand In any decent
society,
namely in freedom and without/ear. In short, our children must be
able to develop their lives in an atmosphere which behoves
any
society which inspire to be an open and democratic one based on
freedom, dignity and equality, the very touchstone of our
Constitution. The community is entitled to demand of the police that
they bring those who subvert these minimum aspirations before
the
courts and that the courts, in punishing such persons, should ensure
that the sentence adequately reflect the censure which
the society
should does demand, as well as the retribution which it Is entitled
to extract"
13.
The trial court correctly found that the are no substantial
and
compelling circumstances warranting the Imposition of a lesser
sentence than llfe Imprisonment. The appellant abducted the
complainant to satisfy his sexual desires without using a condom. He
did not minimise the risk of pregnancy and transmission of
disease by
using a condom. He physically assaulted the complainant and
threatened to kill her. He subjected the complainant to
the agony and
indignity of rape. The age of the complainant when she was raped,
couple with her immaturity and anatomical under
development, and
physical assault, rendered the rape a dreadful one. There is no doubt
that the complainant will carry the emotional
scars of rape with her
for life.
14.
I can find no basis upon which to interfere with the sentence
of the
trial court. This rape was serious enough to Justify the Imposition
of a minimum sentence of life imprisonment. In my view
the prescribed
sentence imposed is proportionate to this offence upon a
consideration of all the relevant circumstances.
15.
In the premises the following order is proposed:
'The
appeal against sentence is dismissed'
MP
MDALANA-MAYISELA
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
I
agree and it is so ordered
N
DAVlS
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Date
of hearing:
19 March
2018
Judgment
delivered:
29 March 2018
Appearances
For
the Appellant:
Adv F Van As
Attorney
for Appellant: Pretoria Justice Centre
For
Respondent:
Adv M Molatudi
Attorney
for Respondent: Director Public Prosecutions, Pretoria
[1]
1967 (2) SA 193
A at 199 G
[2]
2009 (1) SACR 552
SCA para 58
[3]
(546/2013)
(2014) ZASCA 36
(28 March 2014)
[4]
2011 (1) SACR 448
SCA p 455 B - C
[5]
2014 (1) SACR 530
at 537 para (18)
[6]