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[2017] ZANCHC 57
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Arries v S (CA&R55/17) [2017] ZANCHC 57 (15 September 2017)
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HIGH
COURT OF SOUTH AFRICA
[NORTHERN
CAPE HIGH COURT, KIMBERLEY]
Case
No:
CA&R 55/17
In
the matter between:
DANIEL
ARRIES
Appellant
V
THE
STATE Respondent
Heard:
14 August 2017
Delivered:
15 September 2017
Coram:
Tlaletsi AJP et Lever AJ
APPEAL
JUDGMENT
Tlaletsi
AJP
[1]
The appellant was convicted in the regional court, Carnavon on a
charge of rape in contravention of section 3 of Act 32 of 2007
on 02
August 2016. The victim is a person who is mentally
disabled as contemplated in section 1 of the Criminal Law
(Sexual
Offences and Related Matters) Amendment Act, read with Part 1 of
Schedule 2 as envisaged by section 51(1) of the Criminal
Law
Amendment Act 105 of 1997 (the Act). The rape further involved the
infliction of grievous bodily harm.
[2]
Having found no substantial and compelling circumstances as envisaged
in section 51(3)(a) of the Act, the appellant was sentenced
to
imprisonment for life. The appellant is appealing against his
sentence of life imprisonment.
[3]
The ground of appeal relied upon by the appellant is that the trial
court erred in not finding that there existed substantial
and
compelling circumstances which would justify the imposition of a
lesser sentence than the prescribed sentence of life imprisonment.
For a better understanding of the issue, a brief factual background
that led to appellant's conviction and sentence is apposite.
[4]
The complainant, aged 27 years old at the time, was described by Dr
Piotrowski, a Specialist Psychiatrist, as someone with impaired
cognitive development in early childhood with prominent speech
defect. Her ability to understand, think verbalise her thoughts
is
impaired. Her ability to appreciate the nature and reasonable
foreseeable consequences of a sexual act is restricted.
Although she
was aged 27 years, she behaved and functioned like a child aged 7-9
years.
[5]
Dr Pitorowski's evidence was corroborated by Mrs Viviers who lived
with the complaint for the past eight years. She testified
that the
victim could do nothing for herself. She has to rely on them for
decisions and instructions to do basic things such
as washing
herself and what to wear. She always plays with her own seven year
old daughter and her friends. She does not keep the
company of older
people unless specifically called to join them. Ms
Viviers confirmed that the appellant knew the complainant
and was
fully aware of her condition as he had been to her house on several
occasions. Although this aspect was initially disputed
by the
appellant, he later admitted in cross-examination that he knew
her and understood her condition.
[6]
The complainant was on 28 June 2014 at a tavern in Carnavon where she
partook in consumption of alcohol.
The
appellant was also at the same tavern but was not
in the company of the complainant. He also had some alcohol
to
consume. Later, the complainant left for her home.
On her way in an open veld, she was approached
by the
appellant who offered her some alcohol and invited her to
accompany him. He also requested her to have sexual
intercourse with
him. She refused. He then attacked her by kicking her on the eye and
lips and threw her onto the ground. He struck
her with a stone on her
hip. He pinned her on the ground, undressed her and had
non-consensual sexual intercourse with her.
[7]
Although the appellant's version in the court a
quo
was that
he had consensual intercourse with the victim, his version was
rejected as false and was convicted as charged.
[8]
Appellant's personal circumstances are as follows: He was 25
years old, not married and had no dependants. He attended
school
until standard 8 and worked on a farm earning R1800-00 per month.
Regarding his criminal record he had two relevant previous
convictions of Assault with intent to cause grievous bodily harm and
robbery committed on 3 March 2010 and 24 July
2010
respectively. For the assault he was sentenced to a fine of R3000-00
or 6 months imprisonment which was wholly suspended for
5 years on
some conditions. For the robbery he was sentenced to 12 months
imprisonment. On 21 October 2013 he was convicted of
possession of
dagga and was cautioned and discharged.
[9]
Mr Van Tonder, who appeared on behalf of the appellant before us,
contended that although not much can be said about the appellant's
personal circumstances being favourable, he submitted that the
particular facts of the case amounts to substantial and compelling
circumstances. He submitted that this is a case where both parties
had been to a tavern and had consumed alcohol.
[10]
The real and only issue in this appeal is whether the court a quo
erred in not finding that the facts put forward by the appellant
amounted to substantial and compelling
circumstances justifying a
sentence other than life
imprisonment. That being the case, it is important to consider what
powers this Court has in an appeal limited to the issue of the
presence or otherwise, of substantial and compelling circumstances.
[11]
In
S
v PB
[1]
the Supreme Court of Appeal expressed itself on the correct approach
by a court on appeal as
follows:
"[20]
What then is the correct approach by
a
court on appeal against
a
sentence imposed in terms of the Act? Can the appellate
court interfere with such
a
sentence imposed by the trial
court's exercising its discretion properly, simply because it is not
the sentence which it would have
imposed or that it finds shocking?
The approach to an appeal on sentence imposed in terms of the Act
should, in my view, be different
to an approach to other sentences
imposed under the ordinary sentencing regime. This, in my view, is so
because the minimum sentences
to be imposed are ordained by the
Act. They cannot be departed from lightly or for flimsy reasons. It
follows therefore that
a
proper enquiry on appeal is whether
the facts which were considered by the sentencing court are
substantial and compelling,
or
not."
[12]
My
understanding of what the Supreme Court of Appeal is directing is
that the court of appeal is required to make an inquiry itself
by
considering whether the facts considered by the sentencing court were
indeed substantial or compelling. In my view in undertaking
this
exercise, the appellate court should not limit itself to the facts
raised by the sentencing court when it arrived at its conclusion.
The
approach should be to determine whether on a proper
consideration of all the facts and circumstances of the case,
substantial
and compelling circumstances are present or not.
[2]
The inquiry is that of
correctness.
[13]
In
determining whether circumstances in a particular case are
substantial and compelling, a court is required to assess the
"ultimate
impact of all the circumstances relevant to sentencing
measured against the composite yardstick
('substantial and
compelling') and must be such as cumulatively justify
a
departure
from the standardised response that the legislature has ordained."
[3]
[14]
A comparative analysis of previous cases in which substantial and
compelling circumstances were found to exist or not, is a
useful
guide to a sentencing court. However, the remarks by the Supreme
Court of Appeal in
S v PB
(supra)
are
instructive. The Supreme Court Appeal warned that:
"
[16]
What then is the value of such a comparative analysis of
previous cases. Can this trend, if it can be called that, qualify
to
be elevated to the status of
a
precedent which is intended to
bind all the courts
which
have to consider sentence
whilst sentencing an accused who has been convicted of rape read with
s 51(1) of the Act? Is
a
court expected
,
without
proper consideration of the peculiar facts of this case
,
to
slavishly follow the so-called trend not to impose life imprisonment
for rape? By doing so
,
a
court would be
acting
improperly and abdicating its duty and discretion to
consider
sentence untrammelled by sentences imposed by another court
,
albeit in a similar case. It follows in my view that such
a
sentence would be appealable on the basis that the sentencing
court either failed to exercise its sentencing discretion properly
or
at all. Commenting on the utility of such
a
comparative
approach Marais JA in S v Malgas 2001 (1) SACR 469 (SCA)
(2001
(2) SA 1222
;
[2001]
3
All SA
220)
para
21 said the following:
'It
would be foolish of course, to refuse to acknowledge that there is an
abiding reality which cannot be wished away, namely, an
understandable tendency for a court to use,
even if only as
a starting point, past
sentencing patterns as a provisional standard for comparison when
deciding whether a prescribed sentence
should be regarded as unjust.
To attempt to deny a court the right to have any regard whatsoever to
past sentencing patterns
when deciding whether a
prescribed sentence is in the circumstances of a particular case
manifestly unjust is tantamount to expecting
someone who has not been
allowed to see the colour blue to appreciate and gauge the extent to
which the colour dark blue differs
from it. As long as it is
appreciated that the mere existence of some discrepancy between them
cannot be the sole criteria and
something more than that is needed to
justify departure, no great harm will be done.'
[17]
Van den Heever JA put it more succinctly in S v D 1995
(1) SACR 259 (A) at 260e when she stated that: 'I agree
that decided
cases
on sentence provide guidelines not straight jackets.
'
I
also agree with this correct approach.'
[4]
[15]
To summarise, the Supreme Court of Appeal warns that findings in
prior cases should not be elevated to the status of binding
precedents or benchmarks. It is the legal principles applicable in
those cases that should be understood and carefully applied
to the
facts of a case at hand and not how the principle was applied in
those cases. This is fundamental because each case has
to be decided
on its peculiar circumstances.
[16]
Considering the aggravating features of this case, the
following come to the fore: The complainant was three years older
than the
appellant; mentally impaired, a condition that made her more
vulnerable. She was known to the appellant. One would
have expected the appellant to see a need to protect her because of
her known vulnerability rather than to prey on her. She sustained
the
following injuries at the hands of the appellant: Haemotama to the
right eye; bruising and a wound to the lower lip, and bruising
of the
left and right back. Had it not been for the fact that she was seen
limping by Ms Viviers the appellant would have got away
with this
crime because she only reported the incident the following day when
confronted by Ms Viviers.
The
brutal assault of the complainant was
unnecessary. This goes to show how disrespectful
the appellant was to
the complainant.
[17]
The appellant showed no remorse. He instead fabricated a false
defence subjecting the mentally impaired complainant to secondary
humiliation and suffering of having to attend court and relate in
detail what happened to her. An intermediary had to be used to
obtain
her evidence. The appellant was not prepared to take responsibility
for what he had done.
[18]
Sexual
abuse of women is a serious problem in our country. Women in general
and mentally retarded women and children in particular,
are the most
vulnerable members of the society that need to be protected. In
S
v
SMM
[5]
,
the
Supreme Court of Appeal made the following insightful remarks which
are equally applicably to mentally retarded women:
"[14]
Our country is plainly facing a crisis of epidemic proportions in
respect of rape, particularly of young children. The
rape statistics
induce a sense of shock and disbelief The concomitant violence in
many rape incidents engenders resentment, anger
and outrage.
Government has introduced various programmes to stem the tide, but
the sexual abuse of particularly women and children
continues
unabated. In S v RO I referred to this extremely worrying social
malaise, to the latest statistics at that time in respect
of sexual
abuse of children and also to the disturbingly increasing
phenomenon of sexual abuse within the family context.
If anything,
the picture looks even gloomier now, three years down the line. The
public is rightly outraged by this rampant scourge.
There is
consequently increasing pressure on our courts to impose harsher
sentences primarily, as far as the public is concerned,
to
exact retribution and to deter further criminal conduct. It is trite
that retribution is but one of the objectives of sentencing.
It is
also trite that in certain cases retribution will play a more
prominent role than the other
sentencing
objectives. But
one cannot only sentence to
satisfy public demand for revenge
-
the other
sentencing objectives, including rehabilitation, can never be
discarded altogether, in order to attain a balanced,
effective
sentence. The much-quoted Zinn dictum remains the leading authority
on the topic. Rumpff JA's well-known reference to
the triad of
factors warranting consideration in sentencing, namely the offender,
the crime and the interests of society, epitomises
the very essence
of a balanced, effective sentence which meets all the sentencing
objectives. More than 40 years ago Schreiner
JA had the following to
say about the balance which has to be
struck:
'While
the deterrent effect of punishment has remained as important as ever,
it is, I think, correct to say that the retributive
aspect has tended
to yield ground to the aspects of prevention and correction. That is
no doubt a good thing. But the element of
retribution, historically
important, is by no means absent from the modem approach. It is not
wrong that the natural indignation
of interested persons and of
the community at large should receive some recognition in the
sentences that Courts impose, and it
is not irrelevant to bear in
mind that if sentences for serious crimes are too lenient, the
administration of justice may fall
into disrepute and injured persons
may incline to take
the
Jaw into their own hands.' "
[6]
[19]
In my view the aggravating circumstances by far outweigh the
appellant's personal circumstances and the result meet the threshold
set out in s 51(3)(a) of the Act to rank as not being substantial and
compelling. The court
a quo,
therefore, was correct in
concluding that there were no substantial and compelling
circumstances justifying a departure from the
prescribed sentence of
life imprisonment. The appeal against sentence falls to
be dismissed.
[20]
In the result the following order is made:
“
The
appeal against sentence of life imprisonment is dismissed.”
_______________________
L.
P TLALETSI
ACTING
JUDGE PRESIDENT
Northern
Cape High Court, Kimberley
I
concur.
_______________________
L.
G LEVER
ACTING
JUDGE
Northern
Cape High Court, Kimberley
Counsel:
For
the Applicant:
Mr. A. Van Tonder
Instructed
by:
Legal Aid Board SA, Kimberley
For
the Respondent:
Adv. A. Van Heerden
Instructed
by:
Director Public Prosecutions
[1]
S
v P
B
2013
(2) SACR 533
SCA;
Phillips
v The State
Case
No: CA&R 80/2007 Northern Cape High Court, - delivered on
12/08/2016 (unreported
[2]
See also
S
v GK
2013 (2) SACR 505
(WCC) para 5-7
[3]
S
v Malgas
2001
(1) S ACR 469 (SCA).
[4]
S
v PD
(supra)
at
p 538 b-h.
[5]
S
v
SMM
2013
(2) SACR 292
(SCA) para 14.
[6]
R
v Karg
1961
(1) SA 231
(A) at 236 A-B.
S
v Mafu
1992
(2) SACR 494
(A) at 497b-d.