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[2018] ZAGPJHC 625
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Daniels v S (A106/2018) [2018] ZAGPJHC 625 (13 November 2018)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Case
Number:
A106/2018
In
the matter between:
PATRICK
SHANNON
DANIELS
Appellant
And
THE
STATE
Respondent
JUDGMENT
FISHER
J, (MAIER-FRAWLEY AJ CONCURRING:
INTRODUCTION
[1]
This is an appeal against the conviction and sentence of the
appellant in the Boksberg Regional Court. The appellant was charged
with rape. The provisions of section 51 and schedule 2 part I of the
Criminal Law Amendment act 105 of 1997 were stated in the
charge
sheet to be applicable in that: “complainant was 16 years old
at the time of the commission of offence”.
[2]
The appellant was legally represented at the trial and in these
proceedings. The magistrate convicted him "as charged".
[3]
He was sentenced to life imprisonment on the basis that the
magistrate stated that he found no circumstances which moved him
to
depart from the prescribed life sentence.
[4]
The appellant has an automatic right to an appeal and this appeal is
dealt with pursuant to such right.
[5]
The complainant testified as did two of her friends, Ms N S and Ms B
C. Both Ms S and Ms C were witness to certain parts of
the night on
which the rape took place. The appellant testified and called no
witnesses.
[6]
I shall refer to the witnesses by their given names for the sake of
convenience and to accord with the manner they have been
referred to
in the record.
FACTS
[7]
The uncontroverted evidence reveals that the appellant and his
acquaintance Mr Grant Thompson were out for a night of
entertainment. They and some friends had booked three rooms in a
guesthouse being the Amarula Guesthouse in Boksburg. The purpose
of
the booking of these rooms was for the appellant, Grant, and others
who were present on that night to use the rooms for recreational
purposes. This would include having a social get-together of persons.
The appellant conceded that the rooms were also booked so
that some
of the men who participated in the booking could engage with their
girlfriends in sexual intimacy.
[8]
The appellant and Grant had been at the guesthouse and had then gone
to a night club in central Johannesburg. They had returned
to the
guesthouse from the club. They seem to have decided, at this late
stage of the evening, that they wanted female company.
Grant got in
touch with B. It is not clear how this contact was made but it
was obviously by way of text message or phone
call. The request of
Grant was that B come out with him. She agreed and it was arranged
that he would fetch her. She was, at the
time, with the complainant
and N at N’s flat. The complainant had gone to N’s
flat that evening. She lived
with her mother who had gone on a
brief holiday and she did not want to be alone.
[9]
Grant arrived to collect B. It was said that B was going with Grant
to get food. The complainant agreed that she would accompany
them to
Mc Donald’s to get food. She discovered that the appellant was
in the car when she got into the car. She did not
know him. B also
did not know him. It seems that he and Grant were also not well known
to each other.
[10]
There is no doubt that when she got into the car, the complainant
thought she was going to get food with B and her boyfriend.
She
obviously believed that she would, after having got food, be returned
to N’s flat.
[11]
Instead Grant drove them to the guesthouse, after a brief stop at a
garage to get petrol. The complainant was uncomfortable
during this
trip. She raised that she was concerned that Grant had not driven to
the McDonald’s as she had expected. She
was told that they had
to go via the guesthouse because friends needed to be collected. Thus
her ordeal began. She testified that,
whilst in the back of the car
with the appellant he began to make advances to her. She protested. B
confirmed that there was an
altercation between the appellant and the
complainant and that the complainant had complained to her that she
was being inappropriately
“fiddled with” by the
appellant. This complaint was made to B at the petrol station when
the appellant went to the
shop to buy cigarettes.
[12]
What is clear from all the evidence is that the complainant was
placed in a dangerous position: she went with B into a car
with two
men who were strangers to her. These strangers had booked rooms at
the guesthouse earlier. Their plan was that the women
accompany them
to this guesthouse. It seems clear that they were intent on having
sexual contact in these rooms.
[13]
The appellant was on parole, having served part of a sentence of 5
years for sexual assault. He was 26 years old at the time.
The
complaint was just 16 years old. He was worldly and she
relatively innocent.
[14]
After the stop at the petrol station, the parties went on to the
guesthouse – as planned by the men. It seems that the
women
were kept in the dark as to the purpose of the visit to the
guesthouse. B testified that she agreed to go to the guesthouse
as
she believed that Grant wished to collect other friends from the
guesthouse.
[15]
When they arrived at the guesthouse the complainant was still
expressing disquiet as to why they were there. B and Grant
got
out of the car and started towards the entrance. The complaint
testified that she got out of the car reluctantly. She was told
by
the appellant that he was to take the shoes of a friend to a room in
the guesthouse and leave them there for him. He insisted,
she said
that she go with him. He pulled at her hand when she refused and
eventually she agreed to go with him. She felt that she
had little
choice.
[16]
He then took her to one room whilst Grant took B to the other. The
third room was occupied by other friends who were socialising
there.
Once in the room the appellant made it clear that he wished to have
sex with the complainant.
[17]
She states that she said clearly that she did not want to have
intercourse with him. She said that she was having her period
and she
told him so. She testified that he then forced her to have sex with
him. She struggled and he forcibly put his hands down
her pants and
forced his finger into her vagina. All the while she says she was
struggling to get away from him. She tried to run,
but he pulled her
back. She was specific as to the fact that he pulled her by the hood
of the hooded jumper she was wearing as
she tried to run away. She
testified that he pushed her against the wall of the room and choked
her. She was afraid and she undressed
under threat of violence and
was told to get into the bed. She did as she was told and he then
straddled her, forced her legs,
apart and inserted his penis into her
vagina. She screamed at a point. But he choked her and
threatened to kill her if she
screamed again. Grant came to the door
at a stage but the appellant managed to get rid of him.
[18]
It seems that there was an element of complicity between Grant and
the appellant. Grant was present at court but was not called
by the
State or the defence.
[19]
Importantly, B testified that she heard a scream, although she says
she did not know where it came from. At this stage she
did not know
that the complainant and the appellant were in the room adjacent to
the room that she and Grant were in.
[20]
The complainant testified that she was naked in the room with the
appellant for some time and that she asked to be allowed
to put on
her clothes. This was initially refused, but eventually she was
allowed to dress and thereafter she was able to escape
the room. This
occurred when Grant came to the door and it was opened by the
appellant.
[21]
What is not in dispute is that she immediately reported that she had
been raped to B, Grant and others who had been in the
third room. She
was, according to B, visibly upset in that there were tears in her
eyes. The appellant however came from the room
and denied that he had
raped the complainant There followed an altercation where the
complainant made it clear that she had been
raped. This she did in
the presence of all those at the guesthouse. They had congregated as
they were about to depart for their
homes and also because there was
a furore which had arisen because of the accusation made by the
complainant and the denial thereof
by the appellant.
[22]
The night ended with those who were at the guesthouse leaving for
their respective homes. The appellant was allowed by Grant
to ride
home in the same car as the complainant. In fact he sat next to
her. She continued to be distraught. He was dropped
off at his home
and she was taken back to N’s flat. It was confirmed by N that
she and B had been gone for some 2 to 3 hours
at this point and that
N had expected that the complainant and B would return after getting
food. N confirmed also that, when the
complainant arrived home, she
was crying and distraught and that she told her that she had been
raped by the appellant.
[23]
The complainant continued to assert that she had been raped. Early
the next morning she went to a medical practitioner who
confirmed
that there had been sexual intercourse. The examination yielded
results which showed that the complainant had had sex
but that it
could not be determined that the sex had not been consensual.
[24]
The version of the appellant is that he was introduced to the
complainant in the car. He says that after this short car ride
the
complainant agreed to come to the room which had been booked and to
have sex with him. This is, notwithstanding that it was
conceded that
the complainant had no idea that she would be taken to an hotel room
for the purposes of being alone with the appellant
so that they could
have sex.
ISSUES
FOR DETERMINATION
[25]
This court must determine whether the magistrate evaluated the
evidence correctly in relation to the finding that the complainant
had been raped.
[26]
In relation to the sentence, this court must determine whether there
was any misdirection.
DISCUSSION
ON CONVICTION
[27]
The evaluation of the magistrate properly took into account the fact
that there was nothing to suggest consent and much to
lead credence
to the fact that the complainant was lured to the room on the pretext
of having to drop something there for a friend.
The
complainant’s contention that the appellant then began to make
it clear that she had been brought to the room for the
purposes of
having sex was accepted. The appellant indicated that it was “a
couples thing” i.e. that he had been paired
with her and Grant
with B for the purposes of each couple engaging in sexual activity.
This seems likely from the manner in which
the girls were fetched and
taken to the guesthouse where the rooms were booked.
[28]
As stated, neither the State nor the defence called Grant. He was
available to both. It seems that it is unlikely that Grant
would have
supported the version of the appellant to the effect that the
complainant, unexpectedly brought to a hotel in the company
of an
older man she had never met, would immediately have consented to have
sex with this man.
[29]
The reasoning of the magistrate is, to my mind, unassailable. There
is also a strong indication that Grant was complicit in
the luring of
the complainant to the guesthouse. The version of the appellant is,
simply put, not reasonably possibly true.
[30]
The complainant was a credible witness. She testified first through
an interpreter and later directly. Although she was a single
witness
as to the rape, her version was corroborated in material respects in
relation to her disquiet before being taken to the
room, that she
screamed, and that she was distraught and crying in the aftermath.
She immediately reported the rape when she was
reunited with B in the
aftermath.
DISCUSSION
ON SENTENCE
[31]
The magistrate approached the matter on the premise that the
conviction as charged attracted a minimum sentence of life
imprisonment.
The provisions of section 51 and schedule 2 part I of
the criminal law amendment act 105 of 1997 were stated in the charge
sheet
to be applicable in that: “complainant was 16 years old
at the time of the commission of offence”. The magistrate
proceeded
on this assumption and warned the appellant of the
applicability of the section for this reason.
[32]
It was only noticed by the magistrate at the time of
sentencing, that the fact of the complainant being 16years of age,
did not, trigger the minimum life sentence provisions, despite this
being stated in the charge sheet to be the case.
[33]
The magistrate, however, nonetheless decided to apply the life
sentence provisions on a basis other than those which were stated
in
the charge sheet. He held in this regard that the fact that there was
evidence that the complainant had been penetrated more
than once:
being the penetration with the finger as well as the penile
penetration, meant that the minimum sentencing provisions
could still
be invoked - because the charge sheet had warned that a minimum
sentence of life was applicable.
[34]
This approach loses sight of the fact that this was not the case that
the appellant came to meet. The magistrate misdirected
himself in
substituting a new basis for that stated in the charge sheet for the
reason why the particular defence attracted a minimum
sentence of
life.
[35]
The magistrate was thus mistaken in his finding that he was
constrained by the minimum sentence provisions when passing sentence.
[36]
In S v Legoa
2003 (1) SACR 13
(SCA) par [18] the following was said:
“
It is correct
that, in specifying an enhanced penal jurisdiction for particular
forms of an existing offence, the Legislature does
not create a new
type of offence. Thus, 'robbery with aggravating circumstances' is
not a new offence. The offences scheduled in
the minimum sentencing
legislation are likewise not new offences. They are but specific
forms of existing offences, and when their
commission is proved in
the form specified in the Schedule, the sentencing court acquires an
enhanced penalty jurisdiction. It
acquires that jurisdiction,
however, only if the evidence regarding all the elements of the form
of the scheduled offence is led
before verdict on guilt or innocence,
and the trial court finds that all the elements specified in the
Schedule are present.”
[37]
It stands to reason that an accused should be apprised of the
evidence which will be weighed up in determining the penalty
jurisdiction in question. He cannot otherwise meet the case that has
been pleaded in the indictment.
[38]
Mpati JA, in S v Ndlovu
2003 (1) SACR 331
(SCA) para [12]
stated the following in this vein
:
“
The enquiry,
therefore, is whether, on a vigilant examination of the relevant
circumstances, it can be said that an accused had
had a fair trial.
And I think it is implicit in these observations that where the State
intends to rely upon the sentencing regime
created by the Act, a fair
trial will generally demand that its intention pertinently be brought
to the attention of the accused
at the outset of the trial, if
not in the charge-sheet then in some other form, so that the
accused is placed in a position
to appreciate properly in good time
the charge that he faces as well as its possible consequences.'”
[39]
The appellant was thus not called to meet a case of more than one
rape. The indictment specifically charged the accused with
only one
act of penetration.
[40]
Furthermore, the act of penetration with the finger could, on all the
evidence, be read as part of that one act of rape. In
S v
Blaauw
1999 (2) SACR 295
(W) at 300 a-d
,
Borchers J held
that;
“
Repeated acts
of penetration cannot without more, in my view, be equated with
repeated and separate acts of rape.”
The
learned judge went on to suggest that a useful test might be to ask
the question whether there are indications that, having
penetrated
the victim, the offender “formed the intent to rape her again”.
[41]
The appellant was previously convicted of an offence relating to the
sexual violation of a person, for which he had been released
on
parole at the time of this offence. This is aggravating. There
was also substantial planning involved in the orchestration
of the
rape which is also aggravating. There was furthermore no remorse
expressed.
CONCLUSION
[42]
There is no misdirection found in relation to the conviction.
[43]
The magistrate erred in applying the constraints of S 51 read with
Part I of Schedule 2 when sentencing.
[44]
To my mind an appropriate sentence taking into account in all the
circumstances would be 15 years.
ORDER
1. The appeal against the
conviction fails.
2. The appeal succeeds in
relation to sentence.
3. The sentence is set
aside and replaced with the following:
“
The accused is
sentenced to 15 years in prison, such sentence to be deemed to have
commenced on 23 February 2018.”
______________________________________
FISHER
J
HIGH
COURT JUDGE
GAUTENG DIVISION,
JOHANNESBURG
I
agree,
______________________________________
MAIER-FRAWLEY AJ
HIGH
COURT ACTING JUDGE
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Date
of Hearing:
23 October 2018.
Judgment
Delivered
: 13 November 2018.
APPEARANCES:
For
the Appellant
:
Adv M. Buthelezi.
Instructed
by
:
The Johannesburg Justice Centre.
For
the Respondent
:
Adv V. Sinthumule.
Instructed
by
:
NPA.