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[2016] ZAGPPHC 525
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Maseko v S (A75.2015) [2016] ZAGPPHC 525 (5 July 2016)
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personal/private details of parties or witnesses have been redacted
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IN
THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION,
PRETORIA
CASE NO: A75/15
DATE: 5 JULY 2016
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
REVISED
In the matter between:
THEMBA MASEKO
Appellant
and
THE
STATE
Respondent
JUDGMENT
TEFFO, J:
[1] The appellant was convicted in the regional court, Secunda, on
one count of rape of a 13 year old boy in contravention of s 3
of the
Sexual Offences and Related Matters Act, 32 of 2007 read with the
provisions of s 51 (1) and schedule 2 of Act 105 of 1997
(the Act).
He was sentenced to 10 years imprisonment. He now against his
conviction and sentence with leave of this court having
been granted
on petition.
The appeal against conviction
[2) The issues raised in the appeal against conviction were that
the evidence presented by the state was not enough to convict the
appellant. It was argued that there was no corroboration in the
evidence of the three state witnesses but instead there were material
contradictions in their evidence. It was pointed out that if the
appellant had raped the complainant, the DNA results would not
have
been negative. It was submitted that the medical doctor who examined
the complainant gave two contradictory versions when
she made her
conclusion. A further submission was made that the trial court erred
in rejecting the appellant's version as not being
reasonably possibly
true.
The appeal against
sentence
[3) It was argued on behalf of the appellant that should it be
found that the trial court misdirected itself when it convicted him
of rape, the sentence of the appellant should be set aside.
[4) The state disagreed with the submissions made on both
conviction and sentence. It was argued on behalf of the state that
the
appellant was correctly convicted of rape. As regards the
sentence Counsel for the state submitted that the trial court did not
give reasons why it imposed a lesser sentence than the prescribed
minimum sentence. He pointed out that the minimum sentence of
life
imprisonment should have been imposed.
The evidence
[5] Four witnesses testified on behalf of the state, namely, Ms De
M M, Ms M Jo M, Mr T T and Dr A K Mamba. The appellant also testified
in defence of the allegations against him.
[6] The evidence of Ms D M M (Deliwe) was briefly as follows: She
has a romantic relationship with the complainant's uncle.On 21
March
2009 she had a conversation with one Masekgoto who called her to a
certain place to come and see what the appellant was doing
to the
complainant. As she was leaving her premises, she came across the
complainant at the gate of her premises. The complainant
was at that
time entering her yard. He appeared upset and she could see that
something was wrong with him although his physical
appearance was
fine. The complainant was 13 years old at the time. She asked the
complainant what was wrong and where did he come
from. He told her he
was from a neighbouring house. She told him that M told her that he
slept with the appellant in the caravan
and also asked him if that
happened. The complainant said it did happen. The neighbouring house
that she was talking about where
the complainant said he was coming
from, belongs to M and her family. The complainant told her that the
appellant requested him
to accompany him to the shop and upon their
return they went to his house. They entered the appellant's house.
The appellant said
he was going to fetch something in his room. As
they were about to leave the appellant's homestead, the appellant
went inside the
toilet while he remained standing outside. Suddenly
the appellant came out of the toilet naked and left with him to the
caravan.
Upon their arrival at the caravan, the appellant told him to
enter and take a seat. They both entered the caravan and the
appellant
told him to take off his clothes while he also took off
his. They slept and that was not the first time. He subsequent
thereto
gave him R0,50.
[7] She took the complainant to the police station and he was
later taken to the hospital. She confronted the appellant about the
incident. He did not answer but when she asked whether that was
happening for the first time, he said it was not.
[8] Under cross-examination she testified that M also told her
that G was present when she noticed what was happening between the
complainant and the appellant.
[9] Ms M J M also testified. She is a neighbour to D and the
complainant. On 21 March 2009 at approximately 19:30 she was at home
sitting. G arrived and called her. She left with Gift to acaravan
that was in the neighbouring area. Upon their arrival there,
she saw
the appellant on top of the complainant. The door of the caravan was
not closed or locked. Around that time, it was not
completely dark
outside. There were no lights inside the caravan. There was an apollo
light outside the caravan further up the
street (+/- 60 metres). As
she entered the caravan, she saw the appellant on top of the
complainant. She asked him what was he
doing. He said he was not
doing anything. The complainant was at the time lying on his stomach
facing down on the floor and the
appellant was on top of him. The
appellant was naked while the complainant's pants were pulled down to
his ankles.
[10] Immediately he asked the appellant what was he doing, the
appellant stood up and got dressed. He asked the appellant as to what
did he mean when he said he was not doing anything because he found
him on top of the complainant. He also asked the complainant
as to
what was going on and the complainant said the appellant was having
sexual intercourse with him. She eventually took the
complainant to
his uncle. The complainant appeared scared. As she went out with the
complainant, the appellant followed them. The
appellant resided in
the same street. She last saw Gift the previous year.
[11] Under cross-examination she testified that she took the
complainant to D and told her what happened. She was in the company
of the complainant when she told D what happened. D asked the
complainant whether what happened was happening for the first time
and the complainant said 'no'. She also asked him why did he keep
quiet when it happened. The complainant said the appellant always
gave him R0,50 and told him not to say anything. When told that De
testified that when she informed her about the incident the
complainant was not present, she stated that when G arrived at her
place, she first went to D’s place to call her. D requested
her
to go and fetch the complainant. She immediately went to fetch the
complainant. She further explained that she initially went
to D to
tell her that she saw the two having sexual intercourse after G
called her. D wanted to know where was the complainant.
She told her
that she left him in the caravan busy dressing up.
[12] She was questioned about the statement she made to the
police, that she did not mention anywhere on the statement that she
saw the appellant on top of the complainant. Her response to this was
that she did tell the police and she further told them that
the
appellant and the complainant got dressed in her presence. At the
time of the incident G was staying in the caravan. At the
time the
appellant was on top of the complainant, the complainant was facing
down, lying flat on his stomach. When she entered
into the caravan,
she was in the company of G.
[13] Mr T I T (the complainant) also testified. His evidence was
that he was 15 years old when he was testifying. He was attending
school at Wisedi and was in grade 5. On 21 March 2009 he left his
homestead and went to a house in the neighbouring area where
he
watched the television. Upon his arrival there, he found Do who was
busy dancing. Later on the appellant arrived. He joined
them and also
danced. As and when Do and the appellant were dancing, he was sitting
down and watching them. Afterwards the appellant
sat down. He started
looking at him and kept on saying he was going to hit him. He told
him he would not hit him. The appellant
then said they should go
outside. He went out first and told him to follow him. He indeed
followed him. While they were outside,
he asked the appellant where
did he want them to go and fight. The appellant eventually took him
to the caravan in one of their
neighbours' yards. The place was not
far from Do’s homestead. There was no one in the caravan. The
caravan was used as a
shop in the past and the appellant also slept
in it.
[14] Upon their arrival at the caravan, the appellant opened it
and entered. He then called him. He also went inside the caravan
and
the appellant closed the door. Suddenly the appellant told him to
undress himself. At that time he had already taken off his
clothes.
He could not leave the caravan because he did not know how to alight
from the caravan. The door of the caravan was locked
with a shooter
lock. He could not unlock the door because it was dark. In the
caravan there were no lights. The appellant undressed
himself,
grabbed him and also undressed him. At the time the appellant was
undressing himself, he was standing next to him. The
appellant took
off his pants, t-shirt and underpants. He then made him to lie down.
He took off his clothes because the appellant
told him to do so. He
listened to him because he wanted to hit him. He took off his belt,
came closer to him and said he was going
to hit him. He took off his
short pants, jersey, t-shirt and underpants. The appellant went on
top of him. At that time he was
lying on his stomach on the sponge.
The appellant inserted his penis inside his buttocks. He kept on
doing what he was doing until
Du arrived. Du opened the door and
entered the caravan. Du saw them naked. At some stage the appellant
lit the candle inside the
caravan. Immediately Du entered the
caravan, they both got up and dressed themselves. Du called A and S’s
mothers.
[15] A's mother phoned the police. A's mother did not enter the
caravan but was present when he and the appellant alighted from the
caravan. D is A's mother. He did not tell anyone what happened. His
mother came to know about the incident because she was present
when M
came to fetch him. The appellant did not give him anything while they
were inside the caravan. He knew G and he saw him
on the night of the
incident at Do's place and at the caravan. When he went to the
caravan with the appellant, G was not there.
G arrived when they were
naked. Du was the first to come at the caravan and G followed. Gi
also entered the caravan. He saw that
the appellant was naked and at
that stage he was already dressed. It was the first time such an
incident took place.
[16] Under cross-examination he testified that from Do's
homestead, you pass four houses to go to the place where that caravan
was.
When he went outside of Do's house, he thought he was going to
fight with the appellant as he said he was going to beat him. He
did
not scream because Do was making a lot of noise with his hi-fi. Some
of the people in the neighbourhood were not present at
the time and
some of them were busy drinking liquor. At the time of the incident,
the caravan was no longer used as a shop during
the day. He could not
resist when the appellant took off his clothes because he wanted to
hit him. He left the caravan with Du
and went to An and S's mothers.
At that time Gi was not there. Both Du and G found him in the caravan
with the appellant. He did
not tell his mother about the incident
because the appellant told him not to tell anyone about it. He did
not respond when he was
told that all along the evidence was that G
was the person who said he saw him and the appellant inside the
caravan and not Du
as he testified.
[17] Under re-examination he testified that G was the person who
saw him when he entered the caravan.
[18] Doctor Alet Kaina Mamba testified that on 22 March 2009 she
was requested to examine a 13 year old boy (the complainant) and
he
wrote his findings on the
JBS
medical report. Her qualifications were placed on record. She
confirmed her signature on the
JBS
medical report. She examined the complainant who had a history
of sexual assault. His clothing and general body were normal. The
complainant came to her accompanied by his mother. On examination she
did not find any laceration, swelling or bruises on his body.
She
only noticed that the complainant has faeces in his pants. She asked
if the complainant had any history of faecal incontinence
and she was
told he did not have. The complainant's scrotum and penis were normal
but he was emotionally affected. She could see
he was very sad. On
anal examination, the hygiene was poor because the pants were full of
faeces. Pigmentation was normal and at
the orifice, the anal orifice
was one centimetre tears. She observed a tear in the anal area. She
was able to insert her two fingers
in the anal area when she was
examining the complainant to check if the anal cavity was torn. She
estimated 3 cm because it was
not tight to her fingers. Soft faeces
were found in his rectum.
[19] Under cross-examination she testified that she put two
fingers in the anal area of the complainant to check if the centre
was
torn. She could not put three fingers because the complainant was
in pain. She estimated her two fingers to be two centimetres.
She
estimated the length to be 3 centimetres because she could move her
fingers. The area was not tight. The tears she observed
were about 1
centimetre. The tear could have been caused by other things. For an
example, maybe the patient had constipation and
used force to release
the faeces. When asked why did she come to the conclusion that the
boy was sexually assaulted, she said as
far as she could recall when
the complainant was brought to her the way he was walking, he looked
sad and was emotionally affected.
When she examined the rectum, it
was soft. It was not like the complainant was constipated as the
faeces were soft.
[20] Mr T M M also testified. Briefly his evidence was as follows:
He knew both the complainant and D. The police came to fetch him
on
24 March 2009 when he was with his wife in the company of D. He was
accused of raping the complainant. They eventually took
him to the
police station where he was taken into custody. He knew nothing about
the incident. D resides three streets away from
his house. He
disputed staying in the caravan. The caravan was used as a shop where
they went to buy items. At the time of his
arrest, G stayed in the
caravan just to look after it. Liquor was also sold at the caravan.
He would go to the caravan to buy what
he needed and then go home. He
disputed having penetrated the complainant by inserting his penis
into his anus.
[21] He disputed that on the night of the incident he was home
watching the television and also dancing. He testified that he left
home at approximately 09:00. He could not explain why he was able to
remember what he did on the dates he was given because the
incident
happened two years ago. He was adamant that he was at extension 9
with his brother and they went to a night vigil on the
night of the
incident. He could not respond when he was told that his alibi was
not put to the state witnesses when they testified,
that it was also
not mentioned in his plea explanation and also in his evidence in
chief. Later on he conceded that he forgot to
tell his attorney about
it. He mentioned that he did not get along with Do. When asked if he
was calling his brother as a witness,
he said he had passed on. He
was also asked if he could call the many people who saw him at the
night vigil on the night of the
incident. His response was only his
deceased brother could testify about the events of the night of the
21 March 2009.
[22] He further denied that he danced with Do on the night of the
incident. He did not get well with M because in December 2008 two
cell phones got lost. Since then he did not get well with M. He did
not have problems with the appellant and D. He could not explain
as
to why it was D who pressed charges against him and not M. He
testified that he did not know if the complainant was making up
a
story about him or was told to say what he said in court. He further
said many boys came to his house to watch the television
and asked as
to how could he single out the complainant among all of them. He
denied ever having sexual intercourse with the complainant.
[23] S 208 of Act 51 of 1977 ("the Criminal Procedure Act")
provides that an accused person may be convicted of any offence
on
the single evidence of a competent witness. It is, however, a well
established judicial principle that the evidence of a single
witness
should be approached with caution, his or her merits as a witness
being weighed against factors which militate against
his or her
credibility
(S v Stevens
2005 (1) All SA 1
(SCA)).
[24] The correct approach to the application of the so-called
'cautionary rule' was set out by Diemont JA in
S v
Sauls
and Another
1981 (3) SA
172
(A)
at
180 E-G where he said the following:
"There is no rule of
thumb test or formula to apply when it comes to
a
consideration
of the credibility of
a
single witness...The trial
judge will weigh his evidence, will
consider
the merits and demerits and, having done
so
will
decide whether it
is trustworthy and
whether, despite the fact that there are shortcomings or defects
or
contradictions in the
testimony, he is satisfied that the truth had been told. The
cautionary rule referred to
by De Villiers JP in R v Mokoena
1932 OPD
79
at 80, may
be
a
guide to the
right decision but it does not mean that 'the appeal must succeed if
any criticism, however
slender, of the witnesses' evidence were well founded ...'
It
has
been said that more than once that the exercise of caution must not
be
allowed
to displace the exercise of
common sense."
[25] The complainant is a single witness regarding the rape. There
is corroboration in his evidence that he left Do's homestead with
the
appellant to the caravan in the evidence of M to the effect that she
went to the caravan with G where they found the appellant
and the
complainant together. Although it is not clear on the record who is
Du, the complainant's evidence was that Du and G saw
them naked. M
testified that the appellant and the complainant got dressed in her
presence. The complainant's evidence that after
him and the appellant
took off their clothing, the appellant climbed on top of him and did
his things while he made him to lie
down, was also corroborated by
M's evidence that she saw the appellant on top of the complainant. He
was clear in this evidence
that as he was lying down on his stomach,
the appellant inserted his penis inside his buttocks. According to
his evidence the actions
of the appellant were interrupted by Du who
was able to open the caravan and entered. When she entered they both
got dressed and
stopped what they were doing. M further testified
that she asked the appellant what was going on. Although the
appellant said he
was not doing anything, the complainant was able to
tell her that the appellant was having sexual intercourse with him.
[26] Issues were raised that
what the state witnesses said in court differed
with what was mentioned
in the statements they made to the police. In
S
v
Mafaladiso
[2002]
4 All
SA
74
(SCA)
it was
held that
the
court
must
handle discrepancies
between different versions of
the
same
witness with
circumspection.
First,
the
court must ascertain what
the witness meant to say in order to determine whether there was a
discrepancy and the extent of the discrepancy.
The court must take
into account the
following: the fact that a statement was not subject to
cross examination,
language and
cultural
differences between
the
witness and
the
person who
took
down
the
statement,
and
the
fact
that
the
police
did
not
require
any explanation of a
statement.
Secondly,
not every error by, or discrepancy in the statement
of,
a
witness
affects
the
witness's
credibility. Thirdly,
the
different
versions must be
evaluated holistically. This evaluation includes the circumstances in
which the versions were
given,
reasons for the
discrepancies, the effect
of the discrepancies on
the witness's credibility and whether the witness had sufficient
opportunity to explain the discrepancies.
Lastly, the witness's
statement to
the
police
has
to
be
weighed up
against
the
witness's
viva
voca
evidence.
[27] The
record
shows
that
the
statements made
to
the
police
were
not
properly
introduced
to
the
witnesses in
court. When M
was confronted under
cross- examination
with
the
statement she
made
to
the
police,
that she
did not
mention
that when
she
arrived
at
the
caravan,
she
saw
the
appellant
on
top
of
the
complainant, she
was
clear
and
adamant
that
she
mentioned
that
piece
of
evidence
to
the
police and even told them
that the appellant and the complainant dressed up in her presence.
She was not
asked if the statement
was read back to her before she signed
it
to
verify
its
contents. In
any
event
the
trial
court
correctly
found
her
to
have been an honest and
credible witness. It is important to note that this piece
of evidence
was
corroborated
by
the
complainant
himself.
[28] The trial court found all the state witnesses to have been
credible witnesses. Although there were minor discrepancies in their
evidence, e.g the complainant testified that the appellant grabbed
him and took off his clothes while at the same time he testified
that
he undressed himself as ordered by the appellant because he kept
saying he would beat him. Further to this while M and D testified
that the complainant told them that what happened between him and the
appellant was not happening for the first time, the complainant
testified that it was happening for the first time. The complainant
testified that he could not open the door of the caravan as
it was
closed with a shooter lock and because it was dark inside, M was able
to open it from the outside and gained entry. These
discrepancies are
not material and do not advance the case for both the state and the
defence any further. The fact of the matter
is that the appellant and
the complainant were found inside the caravan on the night of 21
March 2009. Identity is not an issue
here as the complainant, the
appellant, D and M were neighbours and knew each other quite well.
[29] What is important in the overall evidence of the state is
that the complainant and the appellant were found naked inside the
caravan, the appellant was seen on top of the complainant while he
was lying on his stomach on the floor and they were seen coming
out
of the caravan together. Further to this evidence, the complainant
was able to make a first report about the rape to D.
[30] Negative DNA results do not necessarily mean that no rape has
been committed. In the absence of DNA results, the most important
question to be asked is who committed the offence of rape on the
complainant. There is no way the state witnesses can make a mistake
regarding the identity of the appellant. They stand nothing to loose
or gain from testifying about what they observed. Even in
the absence
of positive DNA results, there is overwhelming evidence that the
appellant committed the offence he has been charged
with.
[31] The issue of the cell phones that got lost and causing bad
blood between the appellant and M's family is far-fetched.
[32] In the light of the evidence presented by M who saw the
appellant on top of the complainant in the caravan, coupled with the
evidence of the complainant as to how he was raped, the evidence of
the doctor that it does not appear that the complainant was
constipated as the faeces found in the rectum were soft, in my view
the injuries sustained could not have been caused by the fact
that
the complainant was constipated and forced the faeces out. The only
inference to be drawn under the circumstances is that
the appellant
had sexual intercourse with the complainant through the anus.
According to the J88 there were two tears, one on the
skin
surrounding the orifice and one on the orifice itself. It is clear
from this evidence that there was anal penetration. I cannot
find any
contradictions on the J88 medical report by Dr Mamba and also from
her evidence adduced in court. The trial court correctly
found that
she was a credible witness.
[33] The fact that the appellant raised an alibi at a late stage
of the trial,
viz,
only during cross-examination raises some
doubts. His alibi was just an afterthought and it is false beyond a
reasonable doubt.
It is my view, given the totality of the evidence,
that the trial court correctly rejected the version of the appellant
as not
being reasonably possibly true.
[34] I am satisfied under the circumstances that the trial court
correctly accepted the complainant's evidence regarding the rape,
which had some corroboration on the J88 medical report form, the
evidence that the complainant and the appellant were seen in each
other's company in the caravan, and when they left the caravan. In my
view the trial court correctly found that the state proved
its case
beyond reasonable doubt against the appellant and convicted him of
rape. Accordingly the appeal against the conviction
falls to fail.
[35] I now turn to sentence. It is trite that in every appeal
against sentence, whether imposed by a magistrate or a Judge, the
court hearing the appeal -
"(a) should
be
guided by the principle that
punishment is 'pre-eminently
a
matter
for the
discretion of the trial court,'
and
(b) should be careful not
to erode such discretion: hence the further principle that
the sentence
should only be altered if the discretion has not been Judicially and
properly
exercised'."
(See
S v
Rabie
1975 (4) SA 855
(A)
at 857 0-F,
S v
De Jager
and
Another
1965 (2) SA 616
(A), S v Petkar
1988 (3) SA 571
at 571 C).
[36) The following personal circumstances of the appellant were
placed on record in mitigation of sentence: That he was 37 years
old
at the time he was sentenced. He has one child who receives a grant.
He had no previous convictions. He was employed and earned
a salary
of
R1500-00
per month. He went to school up to standard
2.
His father passed on in the year
2000.
His mother is still alive and receives a grant. He
looks after his mother and brother who is mentally retarded. The
injuries sustained
by the complainant are not serious. He was
arrested in
2009.
He has been in custody from
2009
until December
2010
when he was released on bail.
[37] The state made the following submissions in aggravation of
sentence: The age of the complainant. The injuries he sustained.
The
nature and prevalence of the offence. It was argued on behalf of the
state that the rape of a boy of 13 years is very serious.
The crime
itself is severe and it should be accepted that the complainant
suffered psychological harm as a result of the incident.
Counsel for
the state further submitted that the appellant violated a young
innocent person and invaded him without regard to his
privacy,
dignity and bodily integrity. He pointed out that the appellant did
not show any remorse throughout the trial and that
there is no hope
that he will be rehabilitated. A further submission was made that the
court a
quo
did
not give any reasons as to why it deviated from imposing the
prescribed minimum sentence. Counsel for the state argued that
there
are no substantial and compelling circumstances justifying a
deviation from imposing the prescribed minimum sentence. Accordingly
so it was argued, the aggravating circumstances far outweighs the
mitigating factors and that a maximum term of imprisonment should
be
imposed.
[38] At para 18 of the unreported judgment of the Supreme Court of
Appeal in
S
v De Beer
case number 121/04 handed down on 12 November 2001, the
following was said:-
"Rape is
a
topic that abounds with myths and misconceptions. It
is
a
serious
social problem about which,
fortunately, we are at last becoming concerned. The increasing
attention given
to it has raised
our
national
consciousness
about
what
is always and foremost an aggressive act. It is
a
violation
that is invasive and dehumanising. The consequences for the rape
victim are severe and permanent. For many rape victims
the process of
investigation and prosecution, is almost
as traumatic
as rape
itself."
[39] The court in
S
v
C
1996
(2)
SACR 181
(C)
at 186
E
-
F said:
"Rape
is
regarded
by
society
as
one
of
the
most
heinous
of
crimes, and
rightly
so.
A rapist does not murder his victim
-
he murders her
self-respect and destroys her feeling of physical and mental
integrity and security. His monstrous deed often haunts
his victim
and subjects her to mental torment for the rest of her life
- a
fate
often
worse
than
loss
of
life."
[40] The appellant was charged with rape in contravention of s 3
of Act, 32 of 2007 read with the provisions of s 51 (1) and schedule
2 of the Act. S 51 (1) of the Act provides that notwithstanding any
other law but subject to ss (3) and (6), a Regional Court or
High
Court shall sentence a person it has convicted of an offence referred
to in Part 1 of schedule 2, to imprisonment for life.
It is evident
from the record that the sentence imposed by the trial court is too
lenient, hence the magistrate did not give any
reasons as to why he
deviated from imposing the prescribed minimum sentence. He also did
not indicate which factors he regarded
as substantial and compelling.
Unfortunately the state did not cross-appeal the judgment of the
magistrate on sentence and no notice
was given to the appellant that
the court contemplated increasing the sentence. It is my view under
the circumstances that the
sentence of 10 years imprisonment should
not be interfered with. The appeal against the sentence is bound to
fail.(41] I accordingly
make the following order:
41.1The appeal against both conviction and sentence is dismissed.
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION,
PRETORIA
I agree
M
MADIMA
ACTING
JUDGE
OF
THE
HIGH
COURT
SOUTH
AFRICA
GAUTENG DIVISION,
PRETORIA
Appearances:
For the appellant: KIA PHETOE
Instructed by: PRETORIA JUSTICE CENTRE
For the Respondents: H CREIGHTON
Instructed by: THE DIRECTOR OF PUBLIC PROSECUTIONS
Handed down on: 5 July 2016