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[2018] ZAFSHC 54
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Mabaso v S (A21/2018) [2018] ZAFSHC 54 (10 May 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE
DIVISION,
BLOEMFONTEIN
Appeal
no
.
A21/2018
In
the appeal of:
DUNJIWANE
PAULUS MABASO
and
THE
STATE
Appellant
Respondent
CORAM
:
MATHEBULA J et I VAN RHYN AJ
JUDGMENT
BY
:
I VAN RHYN AJ
HEARD
ON:
23 APRIL 2018
DELIVERED
ON
:
10 MAY 2018
[1]
The Appellant was charged in the regional magistrate’s court,
Bethlehem with one count of rape, alleged to have been committed
on 9
July 2014 near Bohlokong, Bethlehem. He was legally represented
during the trial and pleaded guilty to the charge against
him.
He was found guilty and sentenced to life imprisonment on 6 July
2016.
[2]
T
he
Appellant enjoys an automatic right of appeal and appealed against
the sentence only.
[3]
In the Appellant’s statement in terms of the provisions of
Section 112(2)
of the
Criminal Procedure Act 51 of 1977
he admitted
that he unlawfully and intentionally committed sexual penetration
with the Complainant, who was ten (10) years old
at the time without
her consent. He further admitted the DNA testing as well as the
results thereof. The Appellant
admitted the contents of the
J.88 which was handed in as an exhibit during the trial. The
said statement concluded with his
contention that he regrets his
actions and requested the court to be merciful when imposing sentence
upon him.
[4]
As the appeal is against the sentence only, those facts which are
germane to the determination of an appropriate sentence for
the
Appellant, deserve to be briefly recounted.
[5]
The facts relating to the crime were placed on record by the
Prosecutor which facts were not disputed by the defence.
The
Appellant lived with the mother of the Complainant as husband and
wife, though they were not married. During the morning
of 9
July 2014 the Complainant’s mother took her two (2) other
children to the local clinic and left the Complainant in the
care of
the Appellant. The Complainant got in bed with the Appellant to
watch television, but fell asleep. She was
awoken when the
Appellant was lying on top of her, raping her. The Complainant,
by requesting the Appellant to leave the
room to fetch a glass of
water, managed to run away to the police station to request
assistance. The incident occurred during winter
and the Complainant
ran to the police station without being properly dressed. The
Appellant was arrested and was detained whilst
awaiting trial.
[6]
The grounds upon which the Appellant’s appeal rests are that
the sentence is shockingly harsh and inappropriate, as it
is out of
proportion with the totality of the accepted facts in mitigation. It
is contended that the court
a
quo
erred
by finding no compelling and substantial circumstances present to
deviate from the prescribed sentence of life imprisonment
and that
another court will impose a different sentence.
[7]
In imposing an appropriate sentence the court is duty-bound to
consider the triad of facts relevant to sentencing namely:
the
interests of society, the nature and seriousness of the crime and the
personal circumstances of the accused.
[1]
In considering an appropriate sentence on appeal one must not lose
sight of the settled principle of law that sentencing
is eminently a
matter for discretion of the trial court. However, a court of
appeal may interfere with the sentence imposed
provided that the
trial court misdirected itself or where the sentence imposed is
shockingly inappropriate.
[2]
[8]
Rape is a serious crime and although the offence was not committed in
a violent manner, the Appellant’s conduct was a
despicable
violation of trust. In imposing sentence, the regional
magistrate found that no substantial and compelling circumstances
existed which justified a departure from the minimum sentence of life
imprisonment.
[9]
The Appellant’s personal circumstances were placed on record
during his legal representative’s address on sentencing.
He was 31 years of age at the time of the incident. He was not
married and was gainfully employed as a technician.
He earned
an income of R4 500.00 per month. He is the father of two minor
children aged 13 and 9 years respectively.
The Appellant’s
highest scholastic qualification is Grade 11.
[10]
He was in custody awaiting trial from 9 July 2014 until he was
sentenced on 6 July 2016 and therefore spent a period of two
(2)
years in custody awaiting trial.
[11]
It was argued before us that the fact that the Appellant pleaded
guilty indicated his remorse. On behalf of the State
it was
submitted that the overwhelming evidence against the Appellant and
particularly the DNA results, positively linking the
Appellant with
the offence, could have motivated the Appellant to plead guilty.
The Appellant was a first offender and stated
that he regretted his
actions. The regional magistrate found that the mere fact that
the Appellant pleaded guilty did not
necessarily support the
conclusion that the Appellant showed remorse for his actions.
It has been held, quite correctly,
that a plea of guilty in the face
of an open and shut case against an accused is a neutral factor.
[3]
It has also been held that many accused persons might regret their
conduct, but that does not necessarily translate to genuine
remorse.
[4]
In the matter
S v
Matyityi
[5]
it was found that remorse is a gnawing pain of conscience for the
plight of another. Whether an offender is sincerely remorseful,
and
not simply feeling sorry for himself or herself at having been
caught, is a factual question. Therefore, in order for
remorse
to be a valid consideration the Appellant should have taken the court
a quo
fully
into his confidence and explained what motivated him to commit the
deed, what provoked his change of heart and whether he
does indeed
have a true appreciation of the consequences of those actions.
[12]
The question remains whether the personal circumstances coupled with
the fact that the Appellant is a first offender and pleaded
guilty to
the charge against him, cumulatively amount to substantial and
compelling circumstances and that the imposition of the
minimum
sentence in this instance constitute an injustice.
[13]
The minimum sentences to be imposed are ordained by the Legislature
and the courts must not shrink from their duty to impose,
in
appropriate cases, the prescribed minimum sentences. It was
found in
S
v Malgas
that all factors traditionally taken into account during sentencing
continued to play a role and must be measured against the yardstick
of substantial and compelling circumstances. Marais JA on
p.
480
in
the
S
v Malgas
-matter
found that:
“…
a departure must be
justified by reference to circumstances which can be seen to be
substantial and compelling as contrasted with
circumstances of little
significance or of debatable validity or which reflect a purely
personal preference unlikely to be shared
by many.
”
[14]
There is no doubt that the offence forming the subject of this appeal
is a serious, appalling and an utterly outrageous crime
inflicting
horrific suffering and outrage on the Complainant.
[6]
[15]
The Complainant according to the contents of the Victim Impact
Statement said that since the incident happened her “life
turned into a mess”. She understands that what her
stepfather did to her was “bad” and that she expected
him
to protect her and her mother but he failed miserably. It is
evident from the contents of the Victim Impact Statement
that the
rape of the Complainant was not just a physical act, causing her
physical injuries but the psychological impact remains
and continues
to have a deliberating effect in her life. She states that she
lives in anger and at times feels suicidal.
She is experiencing
nightmares and sometimes wet her bed whilst sleeping. The crime
committed by the Appellant was a callous
exploitation of the
Complainant, a 10-year old girl with whom the Appellant was in a
trusting relationship.
[16]
From the J.88, handed in as an exhibit during the trial, it is
evident that there were no substantial injuries to the vaginal
areas
of the Complainant, but fresh tears to the perineum and redness of
the skin which is consistent with forceful, uncooperative
genital
penetration were noted.
[17]
Rape of young girls is a violation of the dignity, security and
wellbeing of the victims and is considered to be a “
scourge
of cancer that threatens to destroy both the moral and social fabric
of our society
”.
[7]
In
S
v PB
[8]
it was found that the approach should be different where a sentence
had been imposed in terms of the provisions of Section 51(1)
of the
Criminal Law Amendment Act, as these prescribed sentences could not
be departed from lightly or for flimsy reasons.
[18]
Undoubtedly, the full extent of the emotional and psychological
suffering as it appears from the Victim Impact Statement by
the
Complainant, combined with the seriously degrading and callous
exploitation by the Appellant, whom the Complainant referred
to as
her “
father
”,
are seriously aggravating circumstances which deserve to be given
appropriate weight in consideration of an appropriate
sentence.
Since a life sentence is theoretically indeterminate and the date on
which it commences should therefore have no
impact on its duration,
the time spent in custody awaiting trial should not cause a
sentencing officer not to impose a life sentence
where it was
statutorily required.
[19]
I am therefore not persuaded that the Appellant’s personal
circumstances, the fact that he pleaded guilty to the charge
nor the
fact that he was a first offender meet the threshold of substantial
and compelling circumstances as provided for in Section
51(3)(a) of
the Act. The appeal ought to be dismissed. I accordingly
propose the following order:
1. The
appeal against the sentence is dismissed.
2.
The conviction and sentence of life imprisonment imposed on 6 July
2016 are confirmed.
______________________
I.
VAN RHYN. AJ
I
concur and it is so ordered
:
______________________
M.A.
MATHEBULA, J
On
behalf of the
Appellant:
S. KRUGER
Instructed
by:
BLOEMFONTEIN JUSTICE CENTRE
On
behalf of the Respondent:
ADV. S GIORGI
Instructed
by:
DIRECTOR: PUBLIC PROSECUTIONS,
BLOEMFONTEIN
[1]
S v
Zinn
1969 (2) SA 537
(A) at 540 F - H
[2]
S v Malgas
2001 (1) SACR 469
(SCA) –
S v Pillay
1977
(4) SA 531
(A) at 534 H – 535 A
[3]
S v
Barnard
2004 (1) SACR 191
(SCA) at 197
[4]
S v
Mokoena
2009 (2) SACR 309
(SCA) at para [9]
[5]
2011 (1)
SACR 40
at 47
[6]
S v
Ncheche
2005 (2) SACR 386 (W)
[7]
Director of
Public Prosecutions, North Gauteng v Thabethe
2011 (2)
SACR 567 (SCA)
[8]
2013 (2)
SACR 533
(SCA) at 539 f - g