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[2016] ZAFSHC 89
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R v S (A189/2015) [2016] ZAFSHC 89 (31 May 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Appeal
Number: A189/2015
In
the appeal between:
M.
J. R.
Appellant
and
THE
STATE
Respondent
CORAM
:
NAIDOO, J
et
MOHALE,
AJ
JUDGMENT
BY:
MOHALE
AJ and NAIDOO J
HEARD
ON
:
7 DECEMBER 2015
DELIVERED
ON
:
31 MAY 2016
[1]
The appellant was charged with the rape of his 11 year old
granddaughter in the Phuthaditjhaba Regional Court. He pleaded not
guilty but was found guilty as charged and sentenced, on 10 September
2013, to life imprisonment, in terms of section 51 of the
Criminal
Law Amendment Act 105 of 1997 (the Minimum Sentences Act). The
appellant is before us by virtue of his automatic right
of appeal and
appeals only against his sentence. He was represented in this court
by Mr TB Van Rensburg and the respondent was
represented by Ms MMM
Moroka.
[2]
On 5 February 2010, in Phuthaditjhaba, the appellant sent the
complainant to buy a cold drink. On her return with the cold drink,
he put the complainant on the bed, undressed her and raped her. The
appellant was married to the complainant’s grandmother
at the
time, but they were separated and not living in the same house. The
incident in question took place at the appellant’s
house. The
complainant was taken to the hospital by her grandmother, where she
was medically examined. A charge was thereafter
opened against the
appellant. The prosecutor handed into evidence a medical examination
form, commonly referred to as the J88,
which recorded the doctor’s
findings after she examined the complainant. The injuries found by
the doctor were bruising of
the posterior fourchette and a tear of
the vagina at the 6 o’clock position, which, according to the
doctor, did not look
fresh. The vaginal examination also revealed a
whitish discharge.
[3]
The appellant lodged his Notice of Appeal late and applied for
condonation for such late filing. The respondent did not object
and
the court granted condonation. The appellant advanced the following
grounds, in essence, for his appeal against sentence:
3.1
The court erred in not finding that substantial and compelling
circumstances existed which warranted
the imposition of a lesser
sentence than life imprisonment;
3.2
The sentence in all the circumstances of the case is unjust in that
it is out of proportion to
the crime, the criminal and the interest
of the community.
3.3
The trial court over-emphasised the seriousness of the crime and the
interest of the community
and under-emphasised the personal
circumstances of the appellant;
3.4
The trial court erred in not bearing in mind that life imprisonment
is the ultimate penalty that
the courts can impose and that it should
not lightly be imposed.
[4]
Mr Van Rensburg argued for a lesser sentence and Ms Moroka, agreed
that life imprisonment was too harsh, given the circumstances
of the
case and the appellant’s personal circumstances. Mr Van
Rensburg, in his address to court, recommended a sentence
of Twelve
(12) Years’ imprisonment, while Ms Moroka submitted that a
sentence of Twenty (20) Years’ imprisonment was
more
appropriate. Both counsel were of the view that the trial court
misdirected itself in the imposition of sentence, which warranted
the
interference of this court in the sentence. It is generally accepted
in our law that an appeal court should interfere with
the sentence
imposed by a trial court only if the trial court has misdirected
itself in the imposition of sentence, resulting in
a sentence which
is so inappropriate that it induces a sense of shock. This principle
was succinctly stated in the case of
Gregory Lex Blank v The State
1995(1) SACR 62 (A),
where the court said:
“
It
has repeatedly been emphasized by
this
court that the imposition of sentence is pre-eminently a matter
falling within the discretion of the trial judge and that a
court of
appeal can interfere only where such discretion was not properly
exercised. One of the ways in which it may be shown that
a trial
court's discretion was not properly exercised is by pointing to a
misdirection in the court's reasons for sentence.”
These
sentiments were also expressed in the cases of
S
v Pillay
1977 (4) SA 531
(A) at p 535 E-F
and
S
v Rabie
1975 (4) SA 855
(A).
[5]
The appellant’s personal circumstances are as follows:
-
he is 58 years old;
-
he is still married to the complainant’s grandmother;
-
he is a first offender;
-
the complainant did not suffer any serious physical injuries;
-
he earns a small salary by doing casual jobs.
Counsel
for the appellant pointed out that no victim impact statement was
presented to court to assist the court in determining
what the
impact, if any, was suffered by the complainant as a result of the
rape.
[6]
There are numerous cases, many of them cited by both counsel in this
matter, where it has been held that life imprisonment is
the ultimate
sentence that a court can impose in this country and it should,
therefore, be reserved for the most serious cases.
In rape matters, life imprisonment should be reserved for the worst
cases where substantial and compelling factors are absent.
(See
S
v Abrahams 2002(1) SACR 116 (SCA); S v Mahometsa 2002(2) SACR 435
(SCA); S v Nkomo 2007(2) SACR 198 (SCA); S v GN 2010(1) SACR
93 (T)
)
In the GN case, the court advocated the approach that
“…
where
the prescribed minimum is life imprisonment, a court should more
readily conclude that the circumstances peculiar to the case
are
substantial and compelling, to the extent that justice requires a
lesser sentence than life imprisonment.”
This
approach was followed in a judgment, emanating from this Division, by
my brother Rampai J, in which my sister Van Zyl J concurred.
The
matter is that of
Vessel
Thabethe v The State, Case number A161/2010
,
where the judgment was delivered on 9 September 2010.
[7]
Rampai J, in citing with approval the GN case where the Full Bench
held that
“…
even
where the law prescribes a minimum sentence the courts must still
seek to differentiate between sentences of cases falling
in the same
category in accordance with the dictates of justice”,
remarked
that
“
In
other words the statutory category of the crime, in this instance,
Part 1 Schedule 2…does not in itself rigidly call for
the
imposition of the ultimate punishment.”
(paragraph
41) I too agree with this approach. The circumstances of the
present matter call for intervention by this court.
[8]
The lack of experience on the part of both the prosecutor and the
presiding magistrate is evident. The trial court unfortunately
dealt
with the sentencing aspect of this matter in a perfunctory and
unsatisfactory manner. There was no attempt at all to consider
the
appellant’s personal circumstances in relation to the
circumstances of the case as a whole. The presiding magistrate,
for
reasons unknown, also declined and failed to deal with the
seriousness of the offence and the interests of society. This in
my
view, is a serious misdirection as he gave no reasons whatsoever for
imposing life imprisonment, other than to intimate that
the
Criminal
Law Amendment Act eliminates
his discretion in the absence of
substantial and compelling circumstances. He did not state any
reasons for holding that there
were no substantial and compelling
circumstances in this matter. As I indicated, this warrants the
interference of this court in
the matter of the sentence imposed on
the appellant.
[9]
In this matter, the actions of the appellant were abhorrent. He
abused the relationship of trust between him and a young child.
Worse
still, the young child just happened to be his granddaughter, by
marriage at least, as it is not clear if the complainant
is his
biological granddaughter. However, this is not a case of the worst
rape that has come before this court. Physically, it
is true that the
complainant did not suffer serious physical injury, other than a
bruise on the posterior fourchette. The medical
report indicated that
the tear in the vagina did not appear to be fresh. This was not
pursued by the defence, prosecution or the
court. No victim impact
assessment report was filed, and this in no way means that the
complainant was not negatively affected
by this incident.
Regrettably, the court did not pursue this important aspect with the
complainant when she testified nor did the
court indicate that some
evidence should be placed before the court in this respect, as would
have been expected, given the relationship
between the appellant and
the complainant.
[10]
The strongest factor in the appellant’s favour is that at age
58, he was a first offender. For his entire life he maintained
a
clean record, but his moral compass appears to have failed him on
this occasion resulting in a serious lapse in judgment which
caused
him to commit this offence. He also took on casual work to earn a
living, and in my view there is a good prospect of him
rehabilitating
himself, even if it means that a lengthy term of imprisonment is
necessary in order for him to repay his debt to
society. The
aggravating factors in my view are that the complainant was his
granddaughter and was 11 years old at the time. In
S
v Olivier 2101(2) SACR 178 (SCA)
,
the court remarked that
“
It
is trite that, during the sentencing phase formalism takes a back
seat and a more inquisitorial approach, aimed at collating
all
relevant information, is adopted. The object of the exercise is to
place before the court as much information as possible regarding
the
perpetrator, the circumstances of the commission of the offence, the
victim’s circumstances, including the impact which
the
commission of the offence had on the victim. The prosecutor, the
defence counsel and the presiding officer all have a duty
to complete
the picture as far as possible at sentencing stage.”
[11]
The court in the present matter failed to take any steps whatsoever
to place itself in a position to have at hand all relevant
information to enable it to impose a proper sentence. Given this
paucity of information, and the complete lack of consideration
of
relevant factors, such as a victim impact assessment or the impact of
the rape on the complanant’s life, it is difficult
to see
understand the imposition of life imprisonment. (See also
Rasiburu
v The State
(2013) ZASCA 140
).
In my view, the appellant’s circumstances viewed, cumulatively,
against the other circumstances of this matter justify
a deviation
from the prescribed minimum sentence and the imposition of a lesser
sentence. Both counsel in this matter agree that
a lengthy term of
imprisonment will be appropriate, although they differ in their
submissions regarding the exact length of the
sentence. The appellant
is at an advanced age, but must still bear the punishment for his
heinous deed. I am more inclined towards
a lengthier term of
imprisonment than that proposed by Mr Van Rensburg, bearing in mind
that the appellant will be considered for
parole after serving a
portion of his sentence.
[12]
In the circumstances, the following order is proposed:
12.1
The appeal in respect of sentence succeeds;
12.2
The sentence of life imprisonment, imposed by the court
a
quo
, is
set aside and substituted by one of Eighteen Years’ (18)
imprisonment.
12.3
The sentence so imposed is ante-dated to 10 September 2013 being the
date when the court
a
quo
imposed sentence in this matter.
_______________
I.MOHALE, AJ
I
agree, and it is so ordered
______________
NAIDOO,
J
On
behalf of the appellant:
Adv. TB Van Rensburg
Instructed
by:
Jacques Groenewald
10
Fleck Street
Kroonstad
Tel:
056 2134259/ 082 924 5586
On
behalf of the respondent:
Adv. MMM Moroka
Instructed
by:
The State