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[2016] ZAFSHC 52
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Ntepe v S (A151/2015) [2016] ZAFSHC 52 (22 March 2016)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Appeal
number: A151/2015
In the
matter between:
THATO
VICTORIUS
NTEPE
Appellant
and
THE
STATE
Respondent
CORAM:
MOCUMIE, J et MOHALE, AJ
HEARD
ON:
26 OCTOBER, 2015
DELIVERED
ON:
22 MARCH 2016
MOCUMIE,
J
[1]
The appellant appeared in the regional court, Kroonstad, Free State
on four counts. Count 1: Impersonating a police official
in
contravention of the provisions of the South African Police Service
Act 68 of 1995 (the Police Act).Count 2: House breaking
with intent
to commit an offence unknown to the prosecutor. Count 3: House
breaking with intent to rob and robbery read with s1
of the Criminal
Procedure Act 51 of 1977 (the CPA). Count 4 rape as defined in terms
of s3 of the Criminal Law (Sexual Offences
and Related Matters)
Amendment Act 32 of 2007 (the Sexual Offences Act ) and rape read
with the provisions of s51 (1) (a) (ii)
Part 1 Schedule 2 of the
Criminal Law Amendment Act 105 of 1997 (the
Criminal Law Amendment
Act).
[2
] On 28 February 2013,
the appellant pleaded guilty on all counts. On the same day, he was
convicted as charged on his plea. He
was sentenced as follows:
‘
1.
Count 1[Impersonating a police official]: 12 months imprisonment
2.
Count 2 [housebreaking with intent to commit an offence unknown to
the prosecutor] and Count 3
[house breaking with intent to commit
robbery with aggravating circumstances] (taken as one for purposes of
sentence): 15 years
imprisonment
3.
Count 4[rape]: Life imprisonment
4.
Count 1, 2, 3 will run concurrently with count 4.’
[3]
The accepted evidence of the State is that on 31 July 2010,the
appellant went to Mrs M’s home and knocked on her door
pretending to be a police official in contravention of the Police Act
. Mrs M did not believe him and refused to open the door.
The
appellant then hit a window pane with a brick and gained entry into
Mrs M’s house. Inside the house, the appellant had
sexual
intercourse with Mrs M without her consent and even inserted his
finger in her private part without her consent, thereby
raping her as
defined in s3 of the Sexual Offences Act. He also robbed her of her
cellphone.
[4]
Mr Kambi, for the appellant, submitted that the trial court
misdirected itself materially by not taking into account the
following
factors as compelling and substantial circumstances. The
appellant pleaded guilty which is a sign of remorse.
He was incarcerated,
on no wrong doing on his part,
for almost 19 months, a year and seven months, from 4 August 2009 to
28 February 2011. This, he submitted, the trial court
failed to
take into account contrary to precedent decisions of the Supreme
Court of Appeal which dictate that such incarceration
ought to be
taken into account in determining whether compelling and
circumstantial circumstances exist and the length of
incarceration.
[1]
[5] He
submitted further that the trial court failed to take into
consideration the following mitigatory factors cumulatively with
the
factors mentioned above as compelling and substantial circumstances.
The appellant was a first offender. He was employed and
earning an
amount of R1500 per month. He has one child although not married. He
attained grade 12 but did not proceed to tertiary
due to financial
constraints.
[6] Mr
Pretorius for the State submitted that there were aggravating
factors. These were that the appellant failed to play open
cards with
the trial court and indicate what made him, with all his favourable
circumstances, commit such heinous offences. He
pleaded guilty but
did not testify under oath to indicate that he was truly remorseful.
Mrs M was 81 years of age when this rape
was perpetuated against her
in the sanctity of her home. She stayed alone. Mrs M suffered trauma
after the rape ordeal in that
she could no longer be left on her own
as she used to. The appellant was sufficiently educated. Rape against
elderly women who
stayed on their own is becoming a frequent
occurrence.
[7] Mr
Pretorius submitted further, with reliance on
S
v Matyityi
[2]
that the trial court did not err in any manner in its finding that
there were no compelling and substantial circumstances which
justified the imposition of a lesser sentence than life imprisonment
on count 4 and fifteen years in respect of count 3. It took
into
account all the factors, both mitigatory and aggravating and imposed
the sentence the legislature prescribed. The appellant
could point to
no misdirection in the exercise of the trial court’s
discretion. Thus there was no need for this court to
interfere with
the sentence imposed.
[8] It
is relevant to mention at this early stage that t
he
record of the trial proceeding shows that no attempt was made by the
State to elicit any evidence on the emotional impact of
these
offences on Mrs M. No Victim Impact Report was submitted during the
trial and in this court. Such a report might have
cast some
light on this question and beyond that. This
happens
too often on the part of the State in cases of rape despite the
reprimand by the Supreme Court of Appeal in many cases including
S v
Vilakazi
[3]
and
S
v Matyityi
[4]
.
The
emotional impact of rape on a rape victim is a relevant and
significant factor to be taken into account in the adjudicative
process of determining an appropriate punishment for a rape offender.
Without a report on that, the sentence imposed is skewed
because it
lacks the voice of the victim in her own process.
[9]
However, there are sufficient compelling and substantial
circumstances in this case which justify the imposition of a lesser
sentence. These are that the appellant was a first offender. He
pleaded guilty; in that way accepted responsibility immediately.
He
was incarcerated for a year and a half without trial; as a result of
no wrong doing on his part. It is trite that the ordinary
length of
such period remains a cumulatively relevant factor and not an
insignificant factor in the deviation equation. Although
it is a fact
that the Legislature specifically provides under s51(3) (Aa)(ii) that
the fact that the victim sustained no physical
injuries can no longer
be regarded as compelling and substantial circumstances; the
fact that Mrs M did not sustain physical
injuries is a fact together
with other factors that has to be taken into account. The attack is
not what the court in
S
v Matyityi
described
as breathtakingly and brazenly brutal
[5]
.
This case was not marred with brutal horror.
[6]
[10]
Having considered all the mitigatory and aggravating factors placed
before the trial court and this court; there is nothing
in the
appellant’s personal circumstances which is suspiciously
indicative of an inherently lawless character. It is
significant to note that the trial court did not consider whether the
appellant could be expected to offend again. The fact
that he
did not show any sign of remorse as the trial court found, despite
his plea of guilty, is not in itself an absolute indication
that,
given a chance, he would offend again. There is no evidence that the
State presented that suggested that the appellant is
likely to commit
these offences again unless he is permanently removed from society.
That, on its own, is a material misdirection.
[11]
To the extent that the trial court found that there were no
compelling and substantial circumstances which justified a lesser
sentence in this case, it erred materially. The sentence of life
imprisonment imposed on the appellant is exceedingly retributive
and
disturbingly disproportionate given his favourable circumstances.
This material misdirection calls for this court to interfere.
[12]
A substantial lengthy term of imprisonment will address the
seriousness of the offences which he has been convicted of, but
justly balance such against his personal circumstances and the
interests of society.
[13]
Lastly, count two is clearly a duplication of charges because the
plea which the State accepted unreservedly indicated that
the accused
person broke into Mrs M’s house with the intent to rob and rape
her. In line with a long list of precedents in
this regard, the trial
court should not have convicted him on the second count; despite his
guilty plea or the State accepting
the plea of guilty thereon.
[7]
If anything, this anomaly should have been drawn to the attention of
the defence. Presiding officers are duty bound not to convict
an
accused person on his or her guilty plea tendered without ensuring
what the accused person is really pleading guilty to. Count
two and
its sentence automatically fall away.
[14]
To indicate the fact that these are serious offences for which
perpetrators must be punished severely, taking into account
this
rising barbaric attack on elderly women, there will be no order made
on the concurrent running of the sentences imposed in
respect of
counts 2 and 4.
[15]
In the result the following order is granted
‘
1.
Count 2 -
the conviction and sentence automatically
fall away;
2. Count 3
- the
appeal against sentence succeeds
and the sentence is substituted with
the following:
‘
Accused
3 is sentenced to 10 years imprisonment.’
3. Count 4
- the
appeal against the sentence
succeeds and the sentence is substituted
with the following:
‘
Accused
3 is sentenced to 18 years imprisonment’.
4.
The
sentence imposed is deemed to have been imposed on 28 February 2013.’
___________
MOCUMIE,
J
I
concur
___________
MOHALE,
AJ
On behalf of
appellant: Attorney
S.S Kambi
Instructed by:
Bloemfontein Justice Centre
Bloemfontein
On behalf of
respondent: Adv. K.G. Mashamaite
Instructed by:
Director of Public Prosecutions
Bloemfontein
[1]
S v Vilakazi
2009 (1) SACR 552
(SCA) para [60].
[2]
S v Matyityi
2011 (1) SACR 40
(SCA).
[3]
S v Vilakazi
,
above para [56] – [57].
[4]
S v Matyityi
above para [16] –
[17]
[5]
S v Matyityi
above para [19]
[6]
Compare with the
brutality and violence in
S
v Nkomo
2007 (2) SACR 198
(SCA) at 207.
S
v Matyityi
2011
(1) SACR 40
(SCA).
S
v Mosia
2012 (2) SACR 537 (FB).
[7]
S v Grobler
en ‘n ander
1966 (1) SA 507
(A) at 516E-H. See also
Whitehead
and
others v The State
2008
[2] All SA 527 (SCA) para [35].