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[2017] ZANCHC 62
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Stuurman v S (CA&R115/16) [2017] ZANCHC 62 (24 October 2017)
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HIGH
COURT OF SOUTH AFRICA
[NORTHERN
CAPE HIGH COURT, KIMBERLEY]
Case
No:
CA&R 115/16
In
the matter between:
SAM
STUURMAN
Appellant
V
THE
STATE
Respondent
Heard:
14 August 2017
Delivered:
24 October 2017
Coram:
Tlaletsi AJP et Lever AJ
JUDGMENT
ON APPEAL
Tlaletsi
AJP
[1]
Mr Sam Stuurman (the appellant) was convicted on his plea of guilty
by the Regional Court, De Aar on 26 September 2013 on a
charge of
Rape, and was sentenced to life imprisonment in terms of s 51(1)(a)
of Act 105 of 1997 (the Act).
[2]
The notice of appeal was filed on 15 March 2017. It is way out of
time and is accompanied by an application for condonation
for the
late filing of the notice of appeal. The condonation application as
well as the appeal are opposed by the State (the respondent).
[3]
The
explanation for the lengthy delay of 3 years and 6 months by the
appellant is simply that after the conclusion of his trial
he tried
several times
"to
appeal"
by
writing letters to court without any response. He also did not have
the financial means to engage the services of a legal representative
to pursue an appeal on his behalf as he was already serving his
sentence. The explanation is not persuasive. He has not attached
copies or any other form of proof of the alleged correspondence to
the court. Neither dates nor particulars of the
correspondence
are
provided.
I
shall
nevertheless
continue to consider whether the appeal itself has reasonable
prospects of success. I have no doubt that the matter
is of
importance to the appellant because of the nature of the sentence
imposed, and that it is in the interests of justice that
the matter
be finalised without further delay. Furthermore, the appellant has an
automatic right of appeal, which should nevertheless
be exercised
within a reasonable time.
[1]
[4]
The only ground upon which the sentence of life imprisonment is
challenged is that the trial court misdirected itself in finding
that
there were no substantial and compelling circumstances justifying a
departure from imposing the prescribed sentence of life
imprisonment.
Mr Fourie, appearing for the appellant submitted that the facts of
this matter are not of such a nature that they
call for the
imposition of life imprisonment, and that the sentence is in any case
harsh.
[5]
First, the personal circumstances of the appellant. He was 39 years
old, single and having a 6 month old son who resided with
his mother.
He was at the time of his arrest employed as a farm worker with a
monthly income of R2000-00. He had been
in custody
pending the finalisation of his trial for 18 months.
Importantly, he was a first offender.
[6]
The victim was a 9 year old child known to the appellant. On the day
of the incident the appellant met the victim with two other
girls
walking in the same direction as the appellant. He joined them. As
they were walking through the veld the other two girls
took a
different direction to their homes. The appellant asked the victim to
have "sex" with him. She asked him what
that was. He told
her to take her clothes off. She refused. He grabbed her and
forcefully undressed her. He then had non-consensual
sexual
intercourse with her. He admitted that he was fully aware that she
was less than 16 years old and that she grew up around
him.
[7]
The victim's mother was living in Hopetown and her father had
recently passed away. She was living with her aunt in De Aar when
the
incident happened. She was well looked after by her aunt. She had
just started attending school and was placed in grade 1 due
to her
advanced age. She had to abandon her schooling after the incident to
move to Hopetown after her rape ordeal. According
to the aunt
the incident had a traumatic effect on her such that she had stopped
playing with her friends and felt insecure among
male persons. The
aunt mentioned further that she started to experience nightmares in
her sleep after the incident. She was undergoing
psychological
treatment and was also placed on medication. In my view, this is a
case in which the state should have secured a
report by a social
scientist/psychologist on the impact of the offence on the victim
rather than relying solely on the say so of
her aunt, who testified
in general terms and was not living with the complainant in Hopetown.
There must be a causal link
between her observation of the
complainant and the offence established.
[8]
The report by an authorized Medical Practitioner which was admitted
in to evidence recorded the following about the complainant:
with
regard to the clinical findings there were no physical injuries and
scratch marks. Her feet here dusty with an old injury.
The hymen at
12mm horizontal and 13mm vertical, with old
injuries; peri-vaginal tear
and
red (fresh-trauma), - no bleeding. The
gynaecological examination revealed that the urethral had a
tear and
that the orifice had no bleeding, the labia majora
(askeiding
negatief),
para-urethral folds had a tear and was red, and labia
"minora extern".
[9]
The following conclusions are recorded: that the patient was
previously sexually molested hence the presence of old injuries
of
the hymen, Perinea! was torn implying a trauma in the past 24 hours.
According to the complainant's history the medical practitioner
recorded that the patient had previously been sexually molested by
the appellant who also had sexual contacts with several other
children. Unfortunately, this remark was not followed-up by the
police or the prosecution during the trial. The allegation cannot,
for the purposes of this appeal be relied upon since it was not
clarified. It however remains a concern that a child of her age
finds
herself in such an unfortunate situation of being sexually active.
[10]
The approach of the appellate court to appeals against sentences
imposed in terms of the Act was set out by the Supreme Court
of
Appeal in
S
v PB
[2]
namely,
that
the
approach
should
be
different
to an
approach
to the sentence imposed under the
ordinary
sentencing regime.
The
proper
inquiry
on
appeal
is whether the facts which were considered by the sentencing court
are indeed substantial and compelling or not.
[3]
[11]
The test is therefore not whether the sentencing court misdirected
itself but that it erred or was wrong in finding
that
substantial and compelling circumstances are present or absent.
Furthermore, the appellate court is not limited to the factors
considered by the sentencing court to reach its conclusion but is at
large
to
consider all other relevant factors
that
have been properly placed before the court.
(S
v GK)
[4]
.
[12]
A comparative analysis of previous cases when considering what an
appropriate sentence would be in a particular
case before the court is a practice that has been
followed over the years. Such trends remain a useful guide to the
sentencing court, particularly lower courts. However, it must be
understood that a sentencing court cannot slavishly follow the
previous trends in similar cases without carefully analysing the
circumstances of the case at hand.
[13]
I found the facts and circumstances in
S
v SMM
[5]
(supra)
relevant
to the appeal under consideration. The case involved a rape of
a 13 year-old girl by her uncle, the appellant. She
had been sent to
visit him for assistance with a school entrance application. The
appellant was 47 years of age at the time of
sentencing. He was a
taxi driver earning R1000-00 per week. His wife was employed and
earned R1200-00 per months. They had four
children all of whom
depended on their parents for financial support. The appellant had
one previous conviction of assault with
intend to do grievous bodily
harm, for which
he
was sentenced to a
fine
of
R500-00
or
three
months
imprisonment. He was sentenced to life imprisonment by the
trial
court.
[14]
On appeal, the Supreme Court of Appeal noted that
the appellant disputed the rape despite
there being
incontrovertible DNA evidence that his semen was found on the
complainant's panties. This fact was considered to be
a further
victimisation of the child as he sought to make her a liar. It was
also found to show lack of remorse on the appellant's
part. The
Supreme Court of Appeal held further that there was no evidence that
the child suffered any ongoing trauma, over and
above the trauma that
she would inevitably have experienced as a result of what had
happened. A further aggravating factor considered
by the Supreme
Court of Appeal was the fact that the appellant abused his position
of trust and instead of helping the child with
her application forms,
he used the opportunity to violate her.
[15]
The Supreme Court of Appeal held among others, that this was not the
most severe form of rape and that the appellant withdrew
when he
realised that the child was crying. Relevant and applicable to this
appeal, the Supreme Court of Appeal had the following
to say
regarding the offence, its prevalence and how it had been treated by
the courts:
"[17]
It is necessary to reiterate a few self-evident realities. First,
rape is undeniably a degrading, humiliating and brutal
invasion of a
person's most intimate, private space. The very act itself, even
absent any accompanying violent assault inflicted
by the perpetrator,
is a violent and traumatic infringement of a person's fundamental
right to be free from all forms of violence
and not to be treated in
a cruel, inhumane or degrading way. In S v Vilakazi Nugent JA
referred to the study done by Rachel Jewkes
and Naeema Abrahams on
the epidemiology of rape which concluded on the available evidence
that 'women's right to give or withhold
consent to sexual intercourse
is one of the most commonly violated of all human rights in South
Africa'.
[18]
The second self-evident truth (albeit somewhat contentious) is that
there are categories of severity
of rape. This observation does not
in any way whatsoever detract from the important remarks in the
preceding paragraph. This court
held in S v Abrahams that 'some rapes
are worse than others, and the life sentence ordained by the
Legislature should be reserved
for cases devoid of substantial
factors compelling the conclusion that such a sentence is
inappropriate and unjust'. The advent
of minimum sentence legislation
has not changed the centrality of proportionality in sentencing. In
Vilakazi Nugent JA cautioned
against the danger of heaping 'excessive
punishment ... on the relatively few who are convicted in retribution
for the crimes of
those who escape or in the despairing hope that it
will arrest the scourge'. He also pointed to the vast disparity
between the
ordinary minimum sentence for rape (10 years'
imprisonment) and the one statutorily prescribed for rape of a girl
under the age
of 16 years (life imprisonment) and the startling
incongruities which may result.
The
judgment also sets out the dramatic effect that the minimum
sentencing legislation has had in sentencing, most importantly that
statistics show that inmates serving sentences of life imprisonment
have increased more than ninefold from 1998 to 2008. And he
reiterated that even in the context of minimum sentencing legislation
the importance of assessing each case on its own peculiar
facts and
circumstances and the need for proportionality must never be
overlooked. Nugent JA expressed it as follows:
'It
is clear from the terms in which the [determinative] test was framed
in Ma/gas and endorsed in Dodo 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 offence.'
[19]
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."
[6]
[16]
The
Supreme Court of Appeal further expressed its displeasure in the
conduct of the prosecution by the fact that there was no attempt
by
the state to place evidence regarding the effect of the rape before
court for example, by way of a victim impact report, despite
the fact
that the court had emphasised its importance in
S
v Vilakazi
[7]
.
A
sentence of
life
imprisonment
was set aside and replaced with a sentence of 15 years imprisonment.
[17]
Reverting to this appeal the trial court considered the seriousness
of the offence and its prevalence, the effect of the offence
on the
victim, the interests of society and the personal circumstances of
the appellant. The Court concluded that considering these
facts there
are no substantial and compelling circumstances justifying a
departure from the prescribed sentenced of life imprisonment
[18]
Some of the aggravating feature of this case are that the victim was
known to the appellant. The appellant knew that
she was a child
under the age of
16.
Instead of protecting her to reach her home safely, he decided to
sexually molest her. The fact that the innocent child did
not even
know what "sex" is, did not deter the appellant.
[19]
It is common cause that the appellant initially denied that he
had raped the victim. It was only after the forensic DNA
investigation
and analysis that linked him to having had sexual
intercourse with the child that he pleaded guilty. His plea of guilty
may therefore
not necessarily serve as a sign of remorse on his part,
but that the state case was very strong against him. Further, it may
not
have required of him to use excessive force as minimal force may
have been sufficient to overpower his young victim. However, it
remains a fact that the complainant did not suffer any physical
injuries other than those associated with non-consensual intercourse,
involving a child.
[20]
I
am mindful that the fact that the complainant did not suffer serious
physical injuries should not be regarded as a substantial
and
compelling circumstance.
[8]
However, such a factor should be considered along with other relevant
factors
to
arrive
at
the
conclusion
whether there are
substantial
and compelling circumstances or not and also to determine a just and
proportionate sentence.
[9]
This aspect was not considered by the trial
court.
[21]
In
my view, the fact that the appellant is a first offender who may be
rehabilitated, that the rape was not accompanied by serious
physical
injuries and appellant's further personal circumstances, renders a
sentence of life imprisonment disproportionate to the
offence. The
rape itself is of cause a serious offence, but it is not one of the
most severe forms of rape that the courts have
had to deal with
[10]
.
In my view the trial court failed to accord sufficient weight to the
factors I have just referred to. The trial court over emphasised
the
seriousness of the offence and
the
interests of society to
the
detriment of the appellant's personal circumstances and the
circumstances of the case. These factors, therefore, rank as
substantial
and compelling circumstances. This Court is therefore
obliged to set the sentence imposed by the trial court aside and
replace
it with a fresh sentence.
[22]
The appellant has been convicted of a serious offence. Its gravity
justifies the imposition of lengthy imprisonment term. Such
term
should take into account the interests of society and also be blended
with a measure of mercy. The appellant had been in custody
for a
period of 18 months at the time of sentencing. To date, he has
already served a period of about 5 years and six months in
detention.
To ameliorate the effect of the sentence on him it is appropriate
that the sentence to be imposed be antedated to the
26 September
2013.
[23]
In the result the following order is made
.
1.
The appeal against the sentence of life imprisonment is upheld and
the sentence imposed by the Regional
Court is set aside and replaced
with the following:
"The
accused is sentenced to 16 years imprisonment.
"
2.
The sentence is antedated to 26 September 2013.
_____________________
L.
P TLALETSI
ACTING
JUDGE PRESIDENT
Northern
Cape High Court, Kimberley
I
concur.
_____________________
L.
VER ACTING JUDGE
Northern
Cape High Court, Kimberley
Counsel:
For
the Apoplicant:
A. Van Tonder
Instructed
by:
Legal Aid Board SA, Kimberley
For
the Respondent:
A. Van Heerden
Instructed
by:
Director of Public Prosecutions, Northern Cape
[1]
Section 51(1)(a)
of Act 105 of 1997.
[2]
S
v PB
2013
(2) SACR 533 (SCA)
[3]
S
v SMM
2013
(2) SACR 292 (SCA)
[4]
S
v GK
2013
(2) SACR 505
(WCC) para [7].
[5]
S
v SMM
2013
(2) SACR 292
(SCA).
[6]
S
v SMM
(supra) at 299-300.
[7]
S
v Vilakazi
[2008] ZASCA 87
;
2009
(1) SACR 522
(SCA);
2012 (6) SA 353
;
[2008] 4 All SA 396)
at paras
56-57.
[8]
Section 51(3) (aA)(II) of the Act.
[9]
S
v Nkawu
2009 (2) SACR 402 (ECG);
S
v MM
(supra) para
26.
[10]
S v Abrahams (supra)