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[2018] ZANCHC 57
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Nogoli v S (CA & R 8/2018) [2018] ZANCHC 57 (18 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE HIGH COURT, KIMBERLEY)
Case
no: CA&R 8/2018
HEARD
ON: 04-06-2018
DELIVERED:
18-06-2018
In
the matter between:
Frank
Nogoli
Applicant
And
The
State
Respondent
CORAM:
WILLIAMS ADJP et MBALO AJ
JUDGEMENT
MBALOAJ
INTRODUCTION
1.
The appellant was convicted in the Regional court, Kimberley on a
charge of rape in contravention of section
3 of Act 32 of 2007 on 24
November 2017.The complainant was a 15 year old girl thereby
rendering the provisions of section 51(1)
of the Criminal Law
Amendment Act 105 of 1997(the Act) applicable.
2.
Having considered all the merits and demerits of the case, the
regional magistrate convicted the appellant
as charged. With the
evidence presented during the sentencing proceedings, the regional
magistrate came to the conclusion that
there were no substantial and
compelling circumstances persuasive enough for the court to deviate
from the imposition of life imprisonment.
FACTUAL
BACKGROUND
3.
The factual matrix of the case has to be documented and it goes thus:
The
complainant was a 15 year old scholar doing grade 8 at the crucial
time, 13 November 2013. By this time, she was about to write
her
school examination. As such, all pupils were furnished with an exam
time table. Unfortunately for the complainant, she lost
her time
table and only realised this while already at home home.
4.
At home she resided with her aunt in Bloemanda, here in Kimberley.
This aunt happened to be very strict with
the complainant. Fearing
that her aunt would castigate her for having lost the time table, the
complainant resolved to do all her
house chores and when she was
done, to get the time table from her class mate. By the time that the
complainant went to get the
time table it was already about eight
o'clock in the evening.
5.
While on the way, the complainant came across the appellant whom she
only knew by sight. She got pulled by
her T-shirt by the appellant,
simultaneously being threatened to be stabbed if she does not refrain
from screaming. The pulling
lasted till the complainant was taken to
the back of the old creche building. Behind this building, the
complainant was tackled
to the ground and was sexually penetrated.
The complainant was left to fend for herself and was luckily without
any physical injuries
except for the emotional scarring that
eventually made her to repeat her school grade to a point of
eventually dropping out of
school.
6.
After the rape, the appellant vanished from the scene and was
untraceable to the law enforcement agencies.
It was by chance that
the appellant was arrested in another matter and got linked to this
case by the DNA sample that was lifted
at the crime scene. The date
of this arrest is 17 February 2017.
7.
During the trial, the appellant pleaded consent which got rejected by
the trial court. In mitigation of sentence,
the appellant's personal
background was revealed as follows: He was 24 years old at the time
of the commission of the crime and
29 years at the time of
sentencing. His level of education is grade11.He is married through
Muslim Rights and out of this marriage,
two children were born and
they are 11 and 7 years old respectively. Both children reside with
their maternal grandfather. Due
to his incarceration, the wife of the
appellant has since moved on with her life. Prior to his arrest, the
appellant used to work
at Shoprite as a trolley pusher and would
generate an income of R780.00 per month. He had an additional income
derived from the
rental of his parental home. This rental of R3000,
00 would be shared amongst the siblings of the appellant.
8.
The appellant spent 4 months and 11 days in custody while awaiting
the finalisation of the case. He is not
a first offender at court,
there are the SAP 69 records revealing that: On 29 February 2012, the
appellant was convicted of assault
common and was cautioned and
discharged. On 12 May 2016, he was convicted of robbery and was
sentenced to a 3 year term of imprisonment
with the provisions of sec
276(1) (i) incorporated into the sentence.
9.
It is out of this total sum of summarised facts, some of which I
shall later allude to in this judgment, that
the regional magistrate
found no substantial and compelling circumstances. The result of this
finding was the imposition of life
imprisonment.
10.
Aggrieved by the finding of the regional court, the appellant moved
an appeal to this court that the sentence be set aside and
be
replaced with a lesser sentence of direct imprisonment.
PARTIES'SUBMISSIONS
11.
The major ground of the appeal which is in essence conceded by the
state is that, the sentence of the regional court is shockingly
disproportional to the surrounding facts of the case. That the
regional magistrate failed to accord due weight to the personal
background of the appellant, and that the imposition of life
imprisonment was a mere compliance with section 51 (1) of the Act
due
to the complainant being under the age of 16 years. It is contended
further that the court a quo failed to consider that the
complainant
in the case was merely five months away from being a 16 year old, and
had she only been five months older this rape
would have fallen
within a 10 year term of imprisonment.
THE
LAW
12.
The starting point is to acknowledge that an appeal court will
interfere with the sentence only where such sentence is shown
to
be inappropriately harsh and or is as a result of a material
misdirection. See
S v SHAPIRO
1994(1) SACR 112 (A)
119J-120C.
13.
Further one must be alive to various legal authorities that the
minimum sentences are not to be departed from out of any flimsy
reasons, the converse holds true that, the same minimum sentences are
not to be followed blindly. The sentencing court is still
duty bound
to apply its mind fully during sentencing. With the minimum
sentencing regime the sentencing court must search with
due diligence
for factors that are substantial and compelling.
14.
Since the prescribed minimum sentence legislation is applicable to
this case it is apposite to refere to:
S v VILAKAZI
2012(6)
SA 353(SCA) par 15 that:
"It
is clear from the terms in which the test was framed in Malgas and
endorsed in Dodo[S V DODO 2001(3) SA 382 (CC)] that
it is incumbent
upon a court in every case, before it imposes a prescribed sentence,
to assess, upon a consideration of all the
circumstances of the
particular case, whether the prescribed sentence is indeed
proportionate to the particular case, whether the
prescribed sentence
is indeed proportionate to a particular offence. The Constitutional
Court made it clear that what it meant
by the "offence "in
that context (and that is the sense in which I will use the term
throughout this judgment unless
the context indicates otherwise)-
'Consists
of all factors relevant to the nature and the seriousness of the
criminal act itself, as well as all relevant personal
and other
circumstances relating to the offender which could have a bearing on
the seriousness of the offence and the culpability
of the offender'
If
a court is indeed satisfied that a lesser sentence is called for in a
particular case, thus justifying a departure from the prescribed
sentence, then it hardly needs saying that the court is bound to
impose that lesser sentence. That was also made clear in Malgas,
which said that the relevant provision in the Act-
'Vests
the sentencing court with the power, indeed the obligation, to
consider whether the particular circumstances of the case
require a
different sentence to be imposed. And a different sentence must be
imposed if the court is satisfied that substantial
and compelling
circumstances exist which 'justify'
...It.
"
ANALYSIS
15.
From the legal position sited in Vilakazi supra, it behoves this
court to determine if the court a quo necessary determination
in
concluding that there are no substantial and compelling circumstances
to deviate from the life imprisonment. In the exercise
of her
discretion, the regional magistrate held the view that, "Accused's
personal circumstances are not the only aspects
or factors to be
considered, specifically his previous convictions, I am specifically
pointing out the previous convictions, because
in my view from his
nothing stands out in his favour."
With
regard to the crime and its impact on the victim, the regional
magistrate stated inter alia that, "Rape not only affects
the
individual physically, but as indicated emotionally and otherwise and
most of the time when we read articles written from rape
survivors
and so forth, one finds in different magazines and articles, one
finds that the victims take longer to process and move
on from these
types of incidents. I indicate that Complainant wanted to take her
life, because we know when a person cuts herself,
as she did in this
instance, the self-inflicted wounds, they wish to take their lives
from what or after what happened."
16.
Gleaning from the reasoning of the regional magistrate as truncated,
there are a series of serious misdirection she committed,
namely
there is nowhere from the record evidence by the complainant that she
attempted to commit suicide. The J88 medical report
also noted these
self-inflicted injuries but without noting if these injuries were
either fresh, healing or old injuries. The remarks
of basing her
knowledge from reading magazines, is also unacceptable as magazines
are for leisure reading with no legal authority.
It was quite a
quantum leap for the learned magistrate to assume that we all know
why a person will self- inflict injuries. These
remarks are a serious
misdirection, as a court is only to base a remark on proven facts
before court and not to simply generalise
and even be creative. There
was no victim impact report placed before court nor any evidence by a
psychologist being presented
at court to support the remarks of the
regional magistrate.
17.
The second misdirection was the reference to appellant's previous
convictions which is also not entirely correct. The appellant
has
only one previous conviction of assault common out of which he was
cautioned and discharged on 29 February 2012.The subsequent
conviction of robbery dated 12 May 2016 is not a previous conviction.
This view is supported by the dictum of
R v ZONELE AND OTHERS
1959(3) SA 319 A at 330.
This dictum was quoted
with approval in an unreported case of
MAHLASE v THE STATE
(255/2013) [2011) ZASCA
191 (29 May
2013)
at par 8
that, a previous conviction may be described as one
which occurred before the offence under trial. The subsequent robbery
crime
was committed on 10 November 2015, and the crime in issue was
committed on 14 November 2013.
18.
Granted, the sentencing court is entitled to view the subsequent
convictions so as to take a wide range of issues into account,
including the bad or good character, the apparent possibilities of
rehabilitation and any other factor. See
R v OWEN
1957(1)
SA
458 (458) AD at462
F- G.
However in this case, the court
has to consider that the assault common conviction had a lenient
sentence, a caution and discharged.
This would lead to the reasonable
inference that the offence was not of serious nature. Likewise with
the subsequent conviction
of robbery, the sentence of 3 years with
correctional supervision under Section 276(1) (i) also suggests a
lesser degree of seriousness.
This Court is alive to an inescapable
fact that the appellant displays some tendencies towards violence and
this is an aggravating
factor against him. However it is still the
duty of the sentencing court to be seen to have duly weighed up all
the relevant factors.
19.
Though the court a
quo
found that: "the accused is young
enough, and even given a long term of imprisonment, to can hopefully
rehabilitate and be
or do something better with his life or
himself',this statement appears to be mere lip service since the
regional magistrate proceeds
to find that "From the
circumstances of this case, all factors placed before Court through
the arguments by the State and
the Defense, the evidence before
sentence and all this that the Court had dealt with to investigate
whether there are substantial
and compelling circumstances, the Court
had come to the conclusion that there are none." The trial court
omitted to weigh
if the sentence of life imprisonment is proportional
or not to the facts at hand. She merely suggested that the life
imprisonment
is meant only for the appellant to rehabilitate,
simultaneously turning a blind eye on the surrounding facts that the
rape in issue
is not so serious. The complainant was sexually
penetrated once; violence used was a mere threat to stab but no knife
got produced;
the victim suffered no physical injuries.
From
these facts as a standalone, the rape could have resorted under Part
3 of Schedule 2, but for the age of the complainant.
20.
The complainant was 15 years old at the crucial time. She was short
of seven months and sixteen days so reach the age of sixteen.lwas
able to calculate this from the birth certificate of the complainant.
She was a teenager or a young girl not a child so to speak.
21.
The trial court overlooked these factors. It merely made reference to
decided cases of this court but with no specific circumstances
of
each case. This attempted comparison was no help to this appellate
court either.
What
was done by the regional court was a failure to recognise that
Malgas
also cautions that:
When
it comes to sentence, the trial court had a clean slate on which to
inscribe whatever sentence it thought fit. Therefore the
sentencing
court has its untrammelled right to decide on an appropriate sentence
and that, the prescribed minimum sentences are
a mere benchmark that
is set by the lawgiver.
See also
S v Malgas
2001(1) SACR
469, par 25
22.
The dictum of
S v SMM
2013 (2) SACR 292(SCA)
at 300
clearly warns that:
"Life
imprisonment is the most severe sentence which
a
court can
impose. It endures for the length of the natural life of the
offender, although release is nonetheless provided for in
the
Correctional Services Act 111 of 1998.Whether it is an appropriate
sentence, particularly in respect of its proportionality
to the
particular circumstances of
a
case, requires careful
consideration. A minimum sentence prescribed by law which, in the
circumstances of
a
particular case, would be unjustly
disproportionate to the offence, the offender and the interests of
society, would justify the
imposition of
a
lesser sentence
than the one prescribed by law. As I will presently show, the instant
case falls into this category. This is evident
from the approach
adopted by this court to sentencing in cases of this kind." I
fully subscribe to these remarks.
23.
In view of all the pinpointed shortcomings, this court is at liberty
to interfere with the sentence of the regional court.
24.
I had earlier on hinted that, both parties are in ad idem that the
sentence of the court a quo is disproportionate to the crime
in
issue.
25.
It is trite that when the court has to consider an appropriate
sentence, it is enjoined to consider the purpose of punishment
which
is inter alia rehabilitation, reformation, deterrence, retribution
and punishment. Mercy is an element that has to be factored
in.
26.
Rape is a crime humiliating as well as degrading to the complainant,
and its impact is immeasurable to the survivor. The complainant
in
this case luckily escaped from physical injuries; she has seemingly
moved on with her life, besides the fact that she dropped
out of
school. The community deserves to live in peace and tranquility, free
from any form of violence and those who violate the
laws of the
Country, especially by raping the vulnerable groups of the society,
need to be punished. The impact of the crime on
the complainant left
her traumatised to an extent of fearing to venture alone in the
streets. While the appellant is about 29 years
old, a repeat offender
for assault common; a father to two minor children now raised by his
father in law; would earn a living
out of pushing the trolleys at
Shoprite; would maintain his children out of his income; he committed
this crime with a minimum
force or violence, all these considered
factors are to be balanced in such a fashion that the offender is not
rendered a sacrificial
lamb at an altar of deterrence. See also
S
v Chapman
[19971
[1997] ZASCA 45
;
1997 (3) SA 341(SCA)
(345A-B.
27.
With all of the above stated, bearing in mind that the purpose of
this sentence is largely to punish the appellant and to deter
the
like - minded; to demonstrate the Court's sensitivity as well as its
disapproval of committal of rape crimes, especially against
women and
children. The following is the order of this court.
ORDER
1.
The appeal succeeds.
2.
The sentence of life imprisonment is hereby set aside and
substituted with the following:
"The
accused is sentenced to 15 years imprisonment."
3.
The sentence is ante dated to 28 November 2017.
N
MBALO
Acting
Judge
Northern
Cape Division
I
concur
CC
WILLIAMS
JUDGE
Northern
Cape Division
I
concur
For
Appellant:
Mr P Fourie
Legal
Aid
For
Respondent: Adv J Rosenberg
Office
of the OPP