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[2016] ZANCHC 6
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J.P.A v S (CA&R80/2007) [2016] ZANCHC 6; 2017 (2) SACR 143 (NCK) (12 August 2016)
SAFLII
Note:
Certain personal/private
details of parties or witnesses have been redacted from this
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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Reportable:
YES
Circulate
to Judges: YES
Circulate
to Magistrates: NO
Circulate
to Regional Magistrates: YES
CASE
NO: CA&R80/2007
DATE
HEARD: 25/07/2016
DATE
DELIVERED:12/08/2016
In
the matter between:
J.
P.
A.
Appellant
and
THE
STATE
Respondent
Coram:
Kgomo
JP
et
Olivier
J
et
Erasmus AJ
JUDGMENT
Olivier
J
[1.]
After
the withdrawal of another charge the appellant, Mr J. P. A., appeared
in the Regional Court, Springbok, on one count of rape
on 22 November
2006. It was alleged that he had over a period of time “
between
2002 and 2/9/2004
”
raped the 12 year old complainant.
[2.]
The
charge referred to the provisions of section 51(2) of the
Criminal
Law Amendment Act
[1]
(“
the
Act
”)
which prescribed sentences of 10 years, 15 years and 20 years
imprisonment for respectively first, second and third rape
offenders
as contemplated in Part III of Schedule 2 to the Act. It
appears, however, that the appellant had prior to pleading
to the
charge been informed that, if convicted, he would be facing a
sentence of life imprisonment “
due
to the fact that the person you are alleged to have raped is a …
12 year old girl
”.
[3.]
The
appellant pleaded not guilty, but in explanation of his plea he
admitted that he had on 2 September 2004 indecently assaulted
the complainant by undressing her and touching her private parts.
He denied, however, having ever had sexual intercourse
with her.
[4.]
The
appellant was, however, subsequently convicted on the basis of
findings that he had in 2004, and on a farm where he had been
working, raped the complainant on three occasions and that, on
2 September 2004 and in Port Nolloth, had again undressed the
complainant with the intent of having sexual intercourse with her.
[5.]
The
appellant had been approximately 56 years old at the time of the
crimes and was 59 years old when the matter was referred to
the High
Court for sentencing
[2]
.
[6.]
The
court
a
quo
confirmed the conviction. Having found a prescribed sentence of
life imprisonment to be applicable on two grounds,
viz
the
fact that the complainant had been under the age of 16 years and the
fact that the appellant had raped the complainant more
than once
[3]
,
and having found no substantial and compelling circumstances
justifying a lesser sentence, sentenced the appellant to life
imprisonment,
but subsequently granted him leave to appeal against
the sentence.
[7.]
The
delays between the imposition of sentence in March 2008 and the grant
of leave to appeal in 2010 and the further delays in finalizing
the
appeal are regrettable. It appears that part of the proceedings in
the court
a
quo
could not be transcribed and had to be reconstructed, but that would
not in itself explain such delays. The appellant had
been
legally represented when leave to appeal was granted and his legal
representative, as well as the prosecuting authority, should
have
monitored the prosecution of the appeal and the proper compilation of
the record. Such delays could in certain cases
compromise the
right to appeal and the consideration of sentence on appeal
[4]
.
In the present case the appellant has, however, been serving his
sentence of life imprisonment pending the appeal, and could
not
realistically have expected any sentence other than long term
imprisonment in the event of a successful appeal.
[8.]
The
complainant, who had been 12 years old at the time of the incidents,
was the daughter of the appellant and Ms B, with whom the
appellant
had been living as husband and wife for more than 20 years.
They, as well as the complainant’s two sisters
and one brother,
had been living in Port Nolloth. From time to time the
appellant worked on farms in the vicinity, and the
rapes occurred
when the complainant and Ms B spent a school holiday with the
appellant on such a farm.
[9.]
The
facts which the Regional Magistrate had found to have been proven and
on the basis of which the court
a
quo
imposed sentence were, very briefly, that the rapes had occurred when
the appellant had followed the complainant to where she had
been
herding sheep (sometimes after the appellant had sent her there).
When they were out of sight the appellant would, despite
the
complainant’s pleas and protests, insist that she undress and
would then have sexual intercourse with her by penetrating
her
vaginally.
[10.]
In
the process the complainant was robbed of her virginity and, when Ms
B once noticed blood on her clothes and confronted the appellant,
he
admitted to having had sexual intercourse with the complainant and
promised never to do so again. This promise was not
kept and
the appellant even on occasion, and to ensure the silence of the
complainant, threatened that he would kill her mother.
[11.]
When
Ms B became aware of the last rape she left the farm and took the
complainant with her. It appears that they then returned
to
where they had been living in Port Nolloth.
[12.]
Approximately
two weeks later, on 2 September 2004, the appellant showed up in
Port Nolloth and had the complainant called
home under false
pretences. When she arrived there with friends, the appellant
put the friends out of the house and proceeded
to partially undress
the complainant and himself. He was on the point of again
raping the complainant when Ms B came into
the room. He then
pretended to have been looking for his tobacco and pretended that the
complainant had undressed herself
and that he did know why.
[13.]
The
appellant then left, but was shortly thereafter arrested. That
was the end of the relationship between the appellant and
Ms B, and
the complainant never saw the appellant again after that.
[14.]
It
appears that a social worker, Ms L E Swartbooi, had prepared a victim
report on the complainant on 10 December 2004.
Although
the report itself does for some reason not form part of the record,
its contents were read into the record by Ms Swartbooi
in her
evidence.
[15.]
From
that it appears that the complainant and her siblings had grown up in
unstable circumstances, with both the appellant and Ms
B having
abused alcohol and drugs. The complainant had been experiencing
problems with her concentration, but after these
events she finally
left school in grade 4, because she felt ashamed and did not know how
she would explain to people at the school
what had happened to her.
She never ventured far from home, out of fear of coming across the
appellant, and she feared that
the same thing might happen to her
sisters. She in fact felt unsafe even at home, and spent most
of her time at the neighbours.
She was depressed and had
withdrawn herself from other people.
[16.]
The
complainant was later placed in a children’s home.
According to Ms Swartbooi’s evidence (apparently sometime
during 2007) she had received feedback from a clinical psychologist
and from the supervising social worker to the effect that the
depression and post-traumatic stress initially experienced by the
complainant because of these events had improved and that the
complainant had been making good progress.
[17.]
The
grounds of appeal are:
17.1
that a sentence of life imprisonment is disproportionate to the
personal circumstances of the
appellant and to the crimes committed
by him;
17.2
that the appellant had not applied any violence during the incidents
and that the complainant
had not suffered serious or permanent
physical injuries and that this, together with the fact that the
appellant’s list of
previous convictions did not include
previous convictions involving sexual misconduct, and with the
exception of one minor previous
conviction of assault also not really
of violence, indicated that the appellant did not have a tendency to
commit crimes of a violent
or sexual nature;
17.3
that the appellant had, despite his low level of education, always
worked and had always provided
for his family from his limited income
and that this, together with the absence of a tendency towards this
type of crime, indicated
a potential for rehabilitation;
17.4
that the appellant had shown remorse by at least admitting to having
indecently assaulted the
complainant;
17.5
that the appellant had spent approximately 2 years in custody
awaiting trial;
17.6
that the advanced age of the appellant at the time of sentencing had
militated against a sentence
of life imprisonment; and
17.7
that the court
a
quo
had misdirected itself in finding that a prescribed sentence of life
imprisonment was also applicable on the basis of the appellant
having
raped the complainant more than once.
[18.]
The
provision, in paragraph (a)(i) of the section pertaining to rape in
Part I of Schedule 2, read with section 51(1) of the Act,
for a
prescribed sentence of life imprisonment in “
circumstances
where the victim was raped more than once whether by the accused or
by any co-perpetrator or accomplice
”
was interpreted in
Mtimkulu
v S
[5]
to require that the accused must in fact have been charged with
having raped the victim more than once.
[19.]
The
charge in the present matter did not pertinently allege more than one
rape and, even if it had, it appears from the record that
the
appellant had never been informed that a finding that more than one
rape had occurred could in itself result in a prescribed
sentence of
life imprisonment.
[20.]
There
is no indication that the appellant was prejudiced by the fact that
the court
a
quo
had nevertheless found that a prescribed sentence of life
imprisonment had also on this basis been applicable. It would
in any event have been applicable because of the age of the
complainant, and of this fact the appellant had been informed.
There is no indication that, had the appellant been advised of the
possibility that such a sentence could, in addition, become
applicable upon a finding that he had raped the complainant more than
once, might have pleaded differently or that he might have
altered
his version or his defence.
[21.]
The
test to be applied by a court on appeal against findings regarding
substantial and compelling circumstances as envisaged in
section
51(3) of the Act, is to consider whether such circumstances had been
duly considered by the sentencing court
[6]
.
[22.]
That
the appellant had always financially provided for his family would
certainly have been a favourable personal factor, as would
the
absence of previous convictions involving violence or sexual
misconduct (especially at the age of the appellant). On
the
other hand, the appellant had no less than 11 previous convictions,
ranging over a period of more than 20 years, including
convictions of
housebreaking and theft, escaping and stock theft, which arguably
indicated a propensity to commit crimes in general
and a disrespect
for the law.
[23.]
In
the absence of information regarding the nature and value of the
stolen goods involved in those thefts the argument by appellant’s
counsel, Mr Nel, that appellant had, in view of his indigent
circumstances, probably stolen out of need, amounts to no more than
conjecture.
[24.]
Although
the complainant testified that she had later heard that the appellant
had used drugs and that he had been drunk, she was
apparently
referring to the appellant’s condition at the time of his
arrest. There was absolutely no evidence or suggestion
that the
appellant had been under the influence of liquor or drugs when he
committed the acts of rape or on 2 September 2004.
[25.]
The
absence of violence and the fact that no serious or permanent
physical injuries had been caused would normally be a mitigating
factor
[7]
, but here it should be
weighed up against the fact that the appellant, as the biological
father of the complainant and the adult
person in whose house she had
grown up, had abused his position of trust and had in fact used it to
manipulate the complainant
to subject herself, without having to
apply any violence
[8]
. The
threat to kill the complainant’s mother should also not be lost
sight of.
[26.]
There
is no merit in the submission that the appellant had, through
admitting to indecent assault, shown a measure of remorse. The
admission that he had undressed complainant on 2 September 2004
pertained only to the events of that day. In making
that
admission the appellant chose not to disclose that he had in fact on
that occasion also partially undressed himself.
[27.]
The
events on the farm were denied and the complainant was forced to
relive them in her evidence and in cross-examination
[9]
.
The appellant’s later version, that he had merely inserted his
penis between the complainant’s legs and not
in her vagina, was
not revealed in his plea explanation, but only in cross-examination
of the complainant.
[28.]
There
was therefore no sign of remorse and “W
hilst
lack of remorse is not an aggravating circumstance, it would have
redounded in the appellant’s favour if he had shown
some
appreciation of and contrition for the devastation he caused.
”
[10]
.
[29.]
Although
it appears that time spent in custody awaiting trial have been taken
into account by courts in circumstances where the
prescribed sentence
was life imprisonment
[11]
, it
should then at least be considered in the context of life
imprisonment (and not a determinate period of imprisonment) being
the
prescribed sentence
[12]
.
[30.]
This
brings me to the issue of the age of the appellant at the time of
sentence. In his heads of argument Mr Nel referred
to
S
v Barendse
[13]
and to
S
v Dumba
[14]
in support of the submission that the appellant’s age should
have been considered as a mitigating factor. Reference
was also
made to the provisions of section 73 of the
Correctional
Services Act
[15]
and it was submitted that, depending on the manner of interpretation
and application of those provisions, the appellant would become
eligible for parole no sooner than the age of 74 and possibly only
when reaching the age of 84.
[31.]
In
my view the
Barendse
case is distinguishable from the present one. In that case the
age of the appellant was held to be relevant in determining
the
(determinate) period of imprisonment to be imposed in circumstances
where it had already been found that there were substantial
and
compelling circumstances which justified a lesser sentence than the
prescribed (indeterminate) sentence of life imprisonment.
Neither the sentencing nor the appeal court made a finding that the
advanced age of that appellant had in fact been a mitigating
factor
which constituted or contributed to substantial and compelling
circumstances justifying a deviation from the prescribed
sentence of
life imprisonment. This had also not been the issue in the
cases of
S
v HN
[16]
and
S
v Heller
[17]
,
referred
to by that court on appeal.
[32.]
In
the
Dumba
case the existence of substantial and compelling circumstances
justifying a lesser sentence than life imprisonment, which had
apparently been the applicable prescribed sentence, was conceded by
counsel for the prosecution and the issue now being considered
was
not debated.
[33.]
In
Hewitt
v The State
[18]
reference was also made to the
Heller
case, and to
S
v Munyai and Others
[19]
,
as cases where “
courts
have considered oldness as a mitigating factor
”
[20]
.
None of these cases concerned a prescribed sentence of life
imprisonment, and the issue was therefore not whether the fact
that
an accused of advanced age might spend the rest of his or her life
behind bars if life imprisonment is imposed could be a
mitigating
factor which could constitute or contribute to substantial and
compelling circumstances justifying a lesser and determinate
sentence.
[34.]
In
S
v Jibiliza
[21]
it was considered that a determinate sentence of 25 years
imprisonment and one of life imprisonment would in the circumstances
of that case have had more or less the same practical effect, having
regard to the fact that the appellant in that matter had by
then
(having initially been sentenced to death) “
been
well into his thirties
”.
Once again, the issue had not been whether, in circumstances where an
indeterminate sentence like life imprisonment
was prescribed,
advanced age could be considered to be a mitigating factor.
[35.]
In
S
v Martin
[22]
precisely this issue (albeit not in the context of a prescribed
sentence) was considered and it was held
[23]
that a “
Life
sentence imposed upon a lively man of 30 imposes a much longer and
harsher sentence than the nominally identical sentence imposed
on a
man of 65 who has lost interest in everything around him
”.
[36.]
A
sentence of life imprisonment must, from the viewpoint of the courts,
be seen as exactly that – imprisonment for the rest
of the
natural life of the offender
[24]
.
That must also be assumed to have been the intention of the
legislature in enacting section 51(1) of the Act
[25]
.
[37.]
This
must necessarily be the case, because such a sentence would
technically empower the executive to keep the offender in custody
for
the rest of his or her natural life. The possibility that a
sentenced offender may later be released on parole is dependent
upon
a statutory power and discretion which lies within the domain of the
executive, and courts are therefore not entitled to take
into account
the possibility of such release when considering a sentence, let
alone the possible timing of such release.
“
Unless
there is a particular purpose in having regard to the pre-parole
portion of an imprisonment sentence… the Court must
disregard
what might or might not be decided by the administrative authorities
as to parole. The court has no control over
that… the
function of the sentencing court is to determine the maximum term of
imprisonment the convicted person may serve.
In
other words, the court imposes what it intends should be served and
it imposes that on an assessment of all the relevant factors
before
it.
It does not grade the duration of its sentences by reference to their
conceivable pre-parole components but by reference
to the fixed and
finite maximum terms it considers appropriate, without any regard
possible parole.
”
Per
Howie JA in
S
v Matlala
2003 (1) SACR 80
(SCA) para [7]
[26]
.
[38.]
The
“
function
of a court in imposing sentence is to determine the maximum period a
convicted person may be imprisoned
”
[27]
and it cannot, in my view, in doing so take into account or rely on
the possibility that the offender could be released on parole
after
having served a specified portion of that maximum period.
[39.]
The
approach cannot in my view be different where the issue in a
particular case is whether life imprisonment would be an appropriate
sentence. It is not for the sentencing court to try to work out
how old an offender could be when (if at all) the executive
decides
to release him or her on parole. The fact that “
a
person who is 25 years old at the time of sentencing is more likely
to serve a longer period of imprisonment than a person who
is 60
years old at the time of sentencing
”
if both were to remain in prison for the rest of their natural lives,
would also not justify a sentencing court to not “
impose
a life sentence of imprisonment where it is statutorily
required
”
[28]
.
[40.]
I
believe that it is for this reason that the Supreme Court of Appeal
in the
Abrahams
case, where the applicable prescribed sentence had been life
imprisonment, held that the age of that appellant (53 years old at
the time of the rape and 54 years old at the time of sentence) was
not a mitigating factor when it came to the issue of substantial
and
compelling circumstances where such a sentence was concerned
[29]
.
[41.]
In
the circumstances, therefore, I am of the view that the appellant’s
relatively advanced age would not have been a mitigating
factor in
the context of a prescribed sentence of life imprisonment and in
considering whether there are substantial and compelling
circumstances justifying a lesser sentence.
[42.]
Counsel
for the respondent, Mr Rosenberg, referred us to the cases of
S
v PB
[30]
and
S
v MDT
[31]
.
In both those cases sentences of life imprisonment for the incestuous
rape of the young daughters of those appellants were
confirmed on
appeal. Although the facts of those cases are, needless to say,
not identical to those of the present case,
there is sufficient
similarity for the purposes of comparison and it is in my view clear
that the present sentence of life imprisonment,
when the
circumstances of this case are compared with the facts of those two
cases, cannot be said to be disproportionate to what
the appellant
had done or to his personal circumstances.
[43.]
Unlike
the appellant in the present matter, the appellant in the
PB
case showed remorse and had a drug addiction problem. Like the
appellant in the present matter that appellant had unrelated
previous
convictions of crimes like theft, fraud and escaping from custody,
but most importantly he also had a previous conviction
of attempted
rape, for which he had been sentenced to partially suspended
imprisonment. There is, however, no indication
in the report of
that case of the type of calculated behaviour exhibited by the
appellant in this case. Although that appellant
had only raped
the complainant once, it appears that he had twice before then
performed “
sexual
practices
”
on that complainant.
[44.]
The
appellant in the
MDT
case had only raped his daughter once and there was no evidence of
any other incidents of a sexual nature between them. He
was 55
years old at the time of that rape, and his daughter 14 years.
He was regarded as a first offender. Although
there was
evidence of an injury to that complainant’s private parts,
there was no evidence of it having had any permanent
physical effect.
[45.]
In
my view the facts of the present matter are, as a whole, more serious
than those in any of the
PB
and
MDT
cases. The appellant in the present matter committed the rapes
repeatedly over a period of time. He had ample time
and
opportunity to reflect and to come to his senses. The fact that
Ms B had discovered what he had been doing, and the fact
that he had
made a promise to her not to do it again, did not stop him.
Even when Ms B removed the complainant to Port Nolloth,
obviously to
get her away from the appellant, the appellant followed them and
again attempted to have sexual intercourse with the
complainant.
[46.]
All
of the appellant’s acts were calculated. He would send
the complainant to take care of the sheep and would then
follow her
there. In Port Nolloth he summoned the complainant home under
false pretences. He then got rid of her friends,
before
proceeding to undress her.
[47.]
The
prevalence of this type of offence was quite correctly taken into
account by the court
a
quo
.
In fact, in cross-examination of doctor Avila the appellant’s
counsel himself revealed that that court had just the
week before
also tried a case where a 9 year old child had been raped.
[48.]
As
far as the seriousness of each and every one of the incidents here is
concerned, I can do no better than to refer to what was
said in this
regard in cases like
S
v Abrahams
and
S
v PB
.
In the latter case Bosielo JA expressed himself as follows in this
regard
[32]
.
“
It
can hardly be disputed that rape of young girls by their fathers is
not only scandalous; it has become prevalent as well.
To all
right-thinking people it is morally repugnant. It has emerged
insidiously in recent times as a malignant cancer seriously
threatening the wellbeing and proper growth and development of young
girls. It is an understatement to say that it qualifies
to be
described as a most serious threat to our social and moral fabric.
”
[49.]
The
Supreme Court of Appeal recently again labelled “
child
rape…
(as)
a
national scourge that shames us as a nation
”
[33]
.
[50.]
In
my view, and upon a consideration of all mitigating and aggravating
factors in this matter, there is no basis for interference
with the
sentence of life imprisonment.
[51.]
In
the premises the following order is made:
THE APPEAL IS
DISMISSED AND THE SENTENCE OF LIFE IMPRISONMENT IS CONFIRMED.
______________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
I
concur.
______________________
F
DIALE KGOMO
JUDGE
PRESIDENT
NORTHERN
CAPE DIVISION
I
concur
.
______________________
S
L ERASMUS
ACTING
JUDGE
NORTHERN
CAPE DIVISION
For the
Appellant: Adv. V Z Nel
Legal
Aid South Africa
For the Respondent:
Adv J J Rosenberg
Office
of the Director of Public Prosecutions
[1]
105 of 1997
[2]
In terms of section 51 of the
Act, prior to its amendment by the
Criminal
Law (Sentencing) Amendment Act
,
38 of 2007.
[3]
As provided for in terms of
section 51(1), read with Part I of Schedule 2, of the Act, even
prior to the amendment of Part I by
the
Criminal
Law (Sexual Offences and Related Matters) Amendment Act
,
32 of 2007.
[4]
Compare
MM v S
[2012]
2 All SA 401
(SCA);
S
v Michele and Another
2012 (1) SACR 131
(SCA) ([2010]
1 All SA 446)
;
S
v Japhta
2010 (1) SACR 136
(SCA) ([2010]
1 All SA 403)
;
S
v Van Deventer and Another
2012 (2) SACR 263
(WCC).
[5]
(
210/11)
[2011] ZASCA 178
(29
September 2011)
[6]
See
S
v PB
2013 (2) SACR
533
(SCA) para [20];
S
v GK
2013 (2) SACR
505
(WCC) paras [3] - [8]
[7]
Compare
S
v Abrahams
2002
(1) SACR 116
(SCA) para [27]
[8]
Compare
S
v Barendse
2010
(2) SACR 616
(ECG) at 617(j)
[9]
Compare
S
v MDT
2014 (2)
SACR 630
(SCA) para [2]
[10]
Hewitt v The State
(637/2015)
[2016] ZASCA 100
(9 June 2016) para [16]
[11]
Compare
Director
of Public Prosecutions, Kwa Zulu-Natal v Ngcobo and Others
2009 (2) (SACR) 361 (SCA) paras [24] - [27]
[12]
Compare
S
v ET
2012 (2) SACR
478
(WCC) para [18];
S
v M
2007 (2) SACR
60
(W) paras [110] - [115]; But also compare
S
v Dlamini
2014 (1)
SACR 530
(GP) para [18]
[13]
See footnote 8 above.
[14]
2011 (2) SACR 5 (NCK)
[15]
111 of 1998
[16]
See
S
v Barendse, supra
,
at 619f
[17]
1971 (2) SA 29
(A) at 55C - D
[18]
See footnote 10 above
[19]
1993 (1) SACR 252 (A)
[20]
Hewitt v The State, supra
,
para [15]
[21]
1995 (2) SACR 677 (A)
[22]
1996 (2) SACR 378 (W)
[23]
At 385f
[24]
Compare
S
v Mhlakaza and Another
1997 (1) SACR 515
(SCA) at 521d – e;
S
v Lewatle
2012 JR
1446 (GNP) para [9];
S
v T
1997 (1) SACR
496
(SCA) at 498h
[25]
Compare
S
v Dlamini, supra
[26]
See also
S
v Mokoena
2009 (2)
SACR 309
(SCA) para [6]
[27]
Ibid
,
at 313g
[28]
S v M, supra
,
para [113]
[29]
S v Abrahams, supra
,
para [27]
[30]
See footnote 6 above
[31]
2014 (2) SACR 630 (SCA)
[32]
S v PB, supra
,
para [13]
[33]
S v MDT, supra
,
para [7]