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[2016] ZAGPPHC 338
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Mzobanzi v S (A5572015) [2016] ZAGPPHC 338 (29 April 2016)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
29/4/16
CASE NO: A557/2015
Reportable: No
Of interest to other
judges: Yes
In the matter between:
MAVIMBELA
MZOBANZI APPELLANT
and
STATE RESPONDENT
JUDGMENT
KUBUSHI, J
[1] Initially, when this
matter appeared before the trial court, the appellant pleaded not
guilty to the charge of rape of a child
of thirteen (13) years.
Before he could plead, the trial court explained the competent
verdicts on a charge of rape. When the appellant
was asked to plead,
he pleaded not guilty and proffered a plea explanation that he had a
relationship with the complainant. The
appellant's legal
representative confirmed the appellant's plea of not guilty and
intimated that the appellant would provide a
full explanation as well
as certain admissions in terms of s 220 of the
Criminal Procedure
Act 51 of 1977 ("the
Criminal Procedure Acf
”)
.
The appellant's legal representative, in the plea explanation he
tendered on behalf of the appellant, stated that, the appellant
admits to having sexual intercourse with the complainant, with
consent. The appellant was, however, unaware of the age of the
appellant at the time when they had sexual intercourse and the
appellant was under the impression that the complainant was sixteen
(16) years of age. The appellant was not sure about the date when
such sexual intercourse occurred but they were in a relationship
during the time of October 2012. The appellant confirmed the plea
explanation tendered by his legal representative. He also admitted
that the admissions made in the plea explanation were in terms of
s
220
of the
Criminal Procedure Act.
The
admissions were
recorded as such. Later during the proceedings the appellant, through
his legal representative, offered to make
more admissions in terms of
s 220
of the
Criminal Procedure Act.
The
said admissions were
read into the record by the appellant's legal representative with the
consent of the appellant. The admissions
are recorded as follows:
'1. The accused admits
that on or during July and October 2014 [this should read 2012], he
did contravene
Section 15
(1) of Act 32 of 2007:
a.
I, the accused, admit that during July and October 2012 and at
Crystal Park in the Regional Division Gauteng, I did unlawfully
and
intentionally commit an act of sexual penetration with a girl, L. M.,
age 13 years old, by inserting my penis in her vagina
and had sexual
intercourse with her.
b.
Although I admit that the sexual penetration was with consent, I do
realise that the complainant was under 16 years of age at
the time.
c.
I further admit that I knew it was an offence in law to have sexual
intercourse with a girl under the age of 16 years of age
and I do
plead guilty.
2. I also plead guilty
and make these submissions of my own free will and I was not induced
by anyone to so plead or make these
admissions.'
[2] The respondent
accepted the admissions and confirmed that the said admissions were
consistent with the state's evidence. From
the record, it appears
that such acceptance was done after consultation with the
complainant, the complainant's mother and the
prosecution. The
respondent at that stage closed its case without calling any
witnesses to give evidence. The appellant also closed
its case
without leading any further evidence.
[3] Consequently, the
trial court found the appellant guilty of the alternative charge of
contravening the provisions of s 15 (1)
of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act
32 of 2007
("the Act").
[4] The state proved no
previous convictions against the appellant. However, before the
parties could address the trial court on
sentence the defence
requested a postponement in order to be afforded an opportunity to
procure, a pre-sentence report, a suitability
report for correctional
supervision as well as a victim impact report. The matter was thus
postponed.
[5] When the matter
resumed for sentencing, only two of the three reports were available,
namely, the victim impact report and the
pre-sentence report. The
parties agreed to proceed without the suitability report for
correctional supervision.
[6] The pre-sentencing
report recommended a sentence of correctional supervision in terms of
s 276
(1)
(h)
of the
Criminal Procedure Act
to
be
imposed on the appellant. It also appeared from the victim impact
report that there was no consent by the complainant. I shall
deal
more fully with this issue later in this judgment as it is a subject
of the appeal before us.
[7] Having heard the
submissions made by the parties' legal representatives on sentence,
the trial court sentenced the appellant
to twelve (12) years
imprisonment. In terms of s 103 of the
Firearms Act
60 of
2000, the appellant was declared unfit to possess a firearm. An order
was also made in terms of s 50 (1) of the
Criminal Law (Sexual and
Related Matters) Amendment Act
32 of 2007 [which the trial court
erroneously stated as the Sexual and Related Matters Act and Criminal
Law Amendment Act 42 of
2007), to record the appellant's name in the
National Register for sexual offenders and to declare the appellant
not allowed to
work with children or to work in an environment where
there will be children.
[8] Pursuant to the
sentence imposed, the appellant applied and was granted leave to
appeal sentence by the trial court. Hence,
he is before us appealing
the sentence only.
[9] The following grounds
of appeal are raised by the appellant:
9.1. The trial court
erred in considering the contents of the victim impact report
insinuating that the victim did not consent to
sexual intercourse, as
this is inconsistent with the contents of the guilty plea.
9.2. In concluding that
the sentence of correctional supervision was not the correct
sentence, the trial court erred in not inviting
the parties to
address it on the issue of imposing a different sentence than the one
the parties seem to have been in agreement
on.
9.3. The trial court
failed to attach sufficient weight to the following factors:
a. The appellant pleaded
guilty;
b. The appellant was
twenty (20) years old at the time of the commission of the offence;
c. The state accepted the
appellant's plea that the complainant consented to sexual
intercourse, after consultation with the complainant
and her mother;
d. No evidence on
injuries was led; and
e. The complainant does
no longer suffer from psychological trauma.
[10] The respondent
submits that there was no misdirection on the part of the trial
court. The trial court took all relevant factors
into consideration
when sentencing the appellant and the sentence imposed is fair and
appropriate in the circumstances, so it is
argued.
[11] The Act does not
prescribe a penalty for any of the various offences set out therein.
As a result, it was held in the Supreme
Court of Appeal judgment in
Director of Public Prosecutions, Western Cape v Prins and Others
2012 (2) SACR 183
(SCA), that on conviction of any one of the
various offences set out in the Act, the courts are enjoined in terms
of
s 276
(1) of the
Criminal Procedure Act
to
impose an
appropriate sentence on the person so convicted.
Section 276
(1) was
held, in that judgment, to be a general empowering provision
authorising courts to impose sentences in all cases, whether
at
common law or under statute, where no other provision governs the
imposition of sentence.
[12] It is not in dispute
that there is no penalty prescribed, either in the Act or any other
Act, for a conviction in terms of
s 15 (1) of the Act. In this
instance, the appellant having been convicted in terms of s 15 (1) of
the Act, the trial court was
enjoined to sentence the appellant in
terms of the provisions of s 276 (1) of the
Criminal Procedure Act
read with s 56A (1)
(b)
of the Act. Section 56A (1)
(b)
of the Act provides as follows:
'A court shall, if a
penalty is not prescribed in respect of that offence in terms of this
Act or by any other Act, impose a sentence,
as provided for in
section 276 of the Criminal Procedure Act, 1977 (Act 51 of 1977),
which that court considers appropriate and
which is within that
court's penal jurisdiction.'
[13] The issue before
this court is whether the sentence imposed by the trial court is fair
and appropriate in the circumstances
of this case. There are two
underlying issues in this regard, namely, whether the trial court
erred in considering the contents
of the victim impact report
insinuating that the victim did not consent to sexual intercourse;
and, whether the trial court erred
in not inviting the parties to
address it on the issue of imposing a different sentence than the one
the parties seem to have been
in agreement on, that is, a sentence in
terms of s 276 (1)
(i)
of the
Criminal Procedure Act
instead of direct imprisonment.
Was the trial court
correct to consider the contents of the victim impact report?
[14] The submission by
the appellant is that the trial court misdirected itself in
considering the contents of the victim impact
report insinuating that
the complainant did not consent to sexual intercourse, as this is
inconsistent with the contents of the
guilty plea. In support of this
contention, the appellant's counsel refers to the judgment in S
v
Khumalo
2013 (1) SACR 96
(KZP) wherein the appellant pleaded
guilty to a charge of murdering her husband. The appellant in that
judgment made a statement
in terms of
s 112
(2) of the
Criminal
Procedure Act
in
which she admitted the elements of the offence
and alleged further that the deceased subjected her to abuse and
financial neglect.
The state made no objection to the plea. The
appellant gave evidence in mitigation of sentence which included
evidence in regard
to the abuse. The trial court was not impressed by
the appellant's evidence in regard to the abuse by her husband and
sentenced
her to life imprisonment. On appeal against this decision,
the court considered whether the state was bound by the
s 112
(2)
statement. It was held that, having accepted the appellant's plea,
the state was bound by the fact that, as a result of the
conduct of
her husband, she had become depressed and desperate, as disclosed in
the
s 112
(2) statement.
[15] In its heads of
argument, the respondent submits that there was no misdirection by
the trial court in considering the contents
of the victim impact
report as alleged by the appellant but concedes that a careful
reading of the victim impact report does reveal
that the complainant
did not consent to these sexual acts by the appellant. The respondent
submits further that although the failure
by the complainant not to
give consent cannot, at this stage, affect the conviction, it should
not simply be ignored but be regarded
as an aggravating factor. This
is so, it is argued, because the victim impact report was handed into
evidence by consent and its
contents were not challenged by the
appellant.
[16] It is so that the
trial court did consider the contents of the victim impact report and
came to the conclusion that the facts
provided by the complainant to
the probation officer do not suggest any consent or 'lover
relationship' between the appellant and
the complainant. The trial
court as such took this evidence into account in aggravation of
sentence when sentencing the appellant
to twelve (12) years direct
imprisonment.
[17] Even though the
victim impact report was handed into evidence by consent of the
parties, in light of the decision in S
v Khumalo
above, with
which I am in agreement, the respondent was still bound by the
admissions made by the appellant in terms of
s 220
of the
Criminal
Procedure Act.
The
appellant admitted to having had consensual
sexual intercourse on two occasions, that is, in July and in October
2012, with the
complainant. These admissions were accepted by the
respondent, after consultation with the complainant and her mother,
as being
consistent with the evidence of the respondent.
[18] It is therefore, my
view that, in considering this evidence for sentencing purposes, the
trial court misdirected itself. This
calls for a relook at the
sentence by this court afresh.
Should the trial court
have invited the parties to address it before imposing a different
sentence than the one the parties seem
to have been in agreement on?
[19] In his heads of
argument and in argument before us, the appellant's counsel submits
that it was expected of the trial court
to invite all parties to
address it on the issue of imposing a different sentence than the one
all the parties seem to have been
in agreement on. It is further
submitted that where a sentencing court is not of the intention to
impose a sentence to which all
parties were clearly in agreement on,
such a court ought to invite the parties to address the court further
on this issue. In this
regard appellant's counsel refers to the
judgment in
S v Makela
2012 (1) SACR 431
(SCA), wherein it was
held that it was irregular for a sentencing officer to vary
conditions attached to a sentence without having
invited the accused
to address the court on the critical question whether such conditions
ought to be varied.
[20] In my opinion, the
principle laid down in the
Mokela
-judgment above, finds no
application on the facts before this court. That judgment dealt with
the variations of conditions attached
to a sentence which is not the
case in this instance.
[21] Sentencing is said
to be a matter pre-eminently for the discretion of the trial court.
In exercising its discretion, the trial
court has considerable
freedom in deciding which sentence to impose. It should, however,
first establish all the facts which may
be relevant to the question
of the most appropriate sentence.
[1]
[22] I align myself with
the findings of the court in
S v Magano
above, in that a
sentencing court requires the presence of sufficient information to
enable it to produce an informed and balanced
sentence. I am however
not in agreement with the submission by the appellant's counsel that
when the trial court opted to impose
a different sentence from the
one the appellant had anticipated, it ought to have invited all the
parties to address it specifically
on that issue.
[23] On perusal of the
record it is apparent that all the parties were provided an
opportunity to address the trial court on sentence.
Two reports were
handed in, namely the victim impact report and the pre-sentencing
report. The pre-sentencing report recommended
a sentence in terms of
s 276
(1)
(h)
of the
Criminal Procedure Act.
The
appellant's legal representative chose on his own volition to
persuade the trial court to impose a sentence in terms of
s 276
(1)
(i)
of the
Criminal Procedure Act
and
the respondent
recommended that sentence as well. It is clear on perusal of the
judgment on sentence of the trial court that the
trial court
considered all the recommended sentences and found direct
imprisonment to be the only appropriate sentence in the circumstances
of the case.
[24] A further submission
by the appellant is that when considering the sentence to impose, the
trial court failed to consider all
the factors stated in paragraph
[9.3] of this judgment. I do not agree.
[25] It is common cause,
in this instance, that when meting out sentence, the trial court
considered all the factors traditionally
taken into account when
imposing sentence. The trial court considered the nature and
seriousness of the offence, the interest of
society and the personal
circumstances of the appellant.
[26] The factors the
appellant is complaining about constitute some of the personal
circumstances of the appellant. It is indeed
true that when
considering sentence, the trial court did not mentioned some of the
factors referred to by the appellant in paragraph
[9.3] of this
judgment. On perusal of the trial court's judgment on sentence
it can be noted that the trial court took into
account the fact that
the appellant was a first offender and that he pleaded guilty. Other
than that nothing more is said about
the personal circumstances of
the appellant. This, however, does not necessarily mean that if the
trial court did not mention the
factors in paragraph [9.3] of this
judgment, in its judgment, it did not consider them. From the pre
sentence report it can
be gleaned that the appellant was twenty (20)
years old at the time of the commission of the offence, he had a
child who was residing
with its mother who is unemployed but receives
a child grant, the appellant was gainfully employed at the time of
his arrest -
he did part time work as a taxi marshal and earned an
income of approximately R1 500 on busy days. All these factors were
before
the trial court when it considered the appropriate sentence to
impose.
Is the sentence
imposed by the trial court fair and appropriate?
[27] Sentencing is a
matter pre-eminently for the discretion of the trial court. The court
hearing an appeal should be careful not
to erode that discretion and
would be justified to interfere only if the trial court's discretion
was not judicially and properly
exercised which would be the case if
the sentence that was imposed is vitiated by the irregularity or
misdirection or is disturbingly
inappropriate.
[2]
[28] The offence in terms
of s 15 (1) of the Act is said to be aimed for matters where the
complainant is a willing party, as the
sexual intercourse is
consensual and places the issue of sentence in an entirely different
category than those reserved for sexual
offences where the
complainant is unwilling.
[3]
[29] In this instance,
the appellant's legal representative and the respondent contended at
the trial that the most relevant sentence
which ought to be imposed
is one in terms of
s 276
(1)
(i)
of the
Criminal Procedure
Act.
This
is the same submission argued by the appellant's
counsel before us.
[30] The case before us
is an odd one in that though the respondent had accepted the
admission made by the appellant that the sexual
intercourse was
consensual, it, however, appears from the victim impact report that
there was in fact no consent.
[31] This resulted in the
victim impact report providing a report based on the fact that there
was no consent. I have, earlier in
this judgment, dealt with this
issue and concluded that the respondent is bound by the admission
made by the appellant. Having
concluded that the respondent is bound
by the appellant's admission that the sexual intercourse was
consensual should the negative
result of the impact be attributed to
the appellant? I do not think so.
[32] It is reported in
the victim impact report that the sexual intercourse has emotionally
and psychologically negatively affected
the complainant. This is an
anomaly in the sense that normally the complainant would have
consented to the sexual intercourse.
And, as such, it would not be
expected that she would have been negatively impacted by the act of
sexual intercourse to which she
had consented to.
[32] The trial court
considered its judgment on sentence in the light of the negative
victim impact report which to me is unfair
to the appellant more so
because the respondent accepted his plea after consultation with the
complainant and her mother. If the
complainant did not consent to the
sexual intercourse the plea should not have been accepted.
[33] In that sense, it is
my view that the sentence imposed by the trial court is disturbingly
inappropriate and should be set aside
and replaced with an
appropriate one. The appellant is still relatively young, he was
twenty (20) years at the time of the commission
of the offence and
was twenty-two (22) years of age when he was sentenced; he was
gainfully employed as a taxi marshal; he is a
first offender; and
although he initially pleaded not guilty, the admissions he
subsequently made are an indication that he wanted
to plead guilty;
this is a sign of remorse; the personal circumstances of the
appellant show that he is a good candidate for rehabilitation.
[34] According to the
record the appellant has been in custody for almost a year now
awaiting this appeal. In my opinion, a suspended
sentence of
imprisonment with the relevant conditions attached will be a suitable
sentence in the circumstances of this case. The
sentence will suit
the crime and be in the interest of the community and serve to
rehabilitate the appellant.
[35] In the premises, I
would propose the following order to be made:
1. The conviction is
confirmed.
2. The appeal on sentence
is upheld.
3. The sentence of twelve
(12) years imprisonment imposed by the trial court is set aside and
replaced with the following:
"1. The accused
is sentenced to six (6) years imprisonment of which five (5) years is
suspended for five (5) years on condition
that the accused is not
convicted of contravening
section 15
(1) of Criminal Law (Sexual and
Related Matters) Amendment Act 32 of 2007 or an offence of which rape
is a competent verdict, committed
during the period of suspension.
2. In terms of section
103 (1) of Firearms Act 60 of 2000 the accused remain unfit to
possess a firearm.
3. In terms of section
50 (1) of Criminal Law (Sexual and Related Matters) Amendment Act 32
of 2007 the accused name is to be recorded
in the National Register
of Sexual Offenders and the accused is not allowed to work with
children or to work in an environment
where there will be children."
4. The sentence is, in
terms of
section 282
of the
Criminal Procedure Act, antedated
to 30
April 2015.
_________________________
E.M.KUBUSHI
JUDGE OF THE HIGH
COURT
I concur and it is so
ordered
_____________________
P.M. MASUSE
JUDGE OF THE HIGH
COURT
Appearances:
On behalf of the
appellant:
Mr Adv L. A Van Wyk
Instructed by:
PRETORIA JUSTICE
CENTRE
2
nd
Floor FNB
Building
206 Church Street
PRETORIA 0001
On behalf of the
respondent:
Adv. M. J. Makgwatha
Instructed by:
DIRECTOR OF PUBLIC
PROSECUTIONS
Presidential Building
28 Church Square
PRETORIA 0001
[1]
See S v Magano 2014 (2) SACR 423 (GP).
[2]
See S v Packereysammy 2004 (2) SACR 169 (SCA).
[3]
See S v Booi
2012 (2) SACR 52
(FB) para 6.