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[2016] ZAGPPHC 867
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Mogotsi v S (A359/2015) [2016] ZAGPPHC 867 (21 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPORTABLE
OF
INTEREST TO OTHER JUDGES
CASE
NO: A359/15
DATE
OF JUDGMENT:21/9/2016
In
the matter between:-
JACOB
..
MOTHAMME
.
MOGOTSI
..........................................................................
Appellant
and
THE
STATE
Respondent
JUDGMENT
KOOVERJIE
A
J:
B
ACKGROUND:-
1.
The Appellant was convicted of contravening
Section 3
of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act, 32
of 2007
and to which he pleaded guilty. On 12 August 2014, he was
sentenced to a term of life imprisonment by the Regional Court. The
accused
appeals against sentence only.
2.
The accused was charged for raping a 12 year old girl. The
complainant was his girlfriend's niece. On the night in question the
accused returned to his home. At the time the complainant was staying
over with other children, including the accused's son. The
accused
admitted that he was tempted to have sexual intercourse with her. He
forced her onto the bed, removed her clothing and
had intercourse
with her, without her consent.
3.
The
Appellant pleaded that the Trial Court misdirected itself in
sentencing the Appellant to life imprisonment without considering
substantial and compelling circumstances. Furthermore the lengthy
period of imprisonment imposed is shockingly harsh and induces
a
sense of shock.
4.
The Court
a quo
should have considered the cumulative
effect of the substantial circumstances which existed, namely that:
•
the Appellant is a
first offender;
•
this was not one
of the worst rapes;
•
he pleaded guilty to the
offence;
•
he had spent 1 year and 1
month in custody awaiting trial;
•
he was remorseful and
apologised to the families for his unlawful actions.
5.
In argument, counsel for the Appellant contended that the
Appellant is a first offender and that it cannot be said that he will
"re-offend" as he took responsibility for his actions and
regretted having sexual intercourse with the complainant. The
accused
could still be rehabilitated, and thus the Court should have
exercised mercy.
6.
It
is trite law
that the
imposition of sentence is primarily at the discretion of the Trial
Court and that an Appeal Court will only interfere with
the
imposed
sentence if the sentence is vitiated by irregularity, misdirection or
is
disturbingly inappropriate
[1]
.
7.
Counsel for the State argued that the consideration of
sentence requires the taking into account of all factors in
aggravation and
mitigation of sentence and their cumulative impact
determines whether a departure therefrom is justified. Reference was
made to
S v Ma/gas
2001 (1) SACR 469
SCA.
8.
The accused's criminal liability lies in the fact that the
victim was a child below the age of 16. At the time of the offence,
she
was only 12 years and 5 months.
9.
The
following aggravating factors were highlighted by the State, namely:
9.1
the accused suffered from symptoms of HIV;
9.2
the victim's aunt was his girlfriend;
9.3
he was living with his girlfriend in her home at
the time of the
offence;
9.4
the complainant had suffered extensive tenderness, extreme
discomfort
and pain after the incident. She was still a virgin and after the
rape she had bled for days;
9.5
the rape occurred in the sanctity of her aunt's home
which was
considered a safe environment for the complainant as well as her
mother;
9.6
the accused lacked remorse. The fact that the accused
initially
denied having raped the complainant but later admitted to it was only
because he was confronted by the complainant's
mother shortly after
the rape at the scene of the crime.
A
NALYSIS:
-
10.
In this instance the appeal against sentence is premised on
the ground that the imposed sentence is disturbingly inappropriate.
11.
The determinative test laid down in
S v Malgas
2001
(1) SACR 469A
finds application
here. This test allows a Court to depart from the prescribed minimum
sentence under certain circumstances :
"If
the
sentencing court on
consideration of the circumstances of the
particular
case is satisfied that they render the prescribed sentence
unjust in that
it would be
disproportionate to the crime, the criminal and needs of society, so
that an injustice would be done by imposing that
sentence, it is
entitled
to impose
a
lesser sentence."
12.
This Appeal has to take into consideration all the
circumstances in order to assess whether the prescribed sentence is
indeed proportionate
to the offence.
13.
Our
Courts
have
further
acknowledged
that while
public
opinion
demands
a
harsh
and
uncompromising
response
from
our
Courts
in
dealing with
rape,
one
must guard
against
sentencing
policy that
caters
exclusively
for
public
opinion
[2]
.
14.
Our Courts have further highlighted the destructive impact of
undue long sentences. In
S v Khumalo and Others
[1984] ZASCA 30
;
1984
(3) SA 327
at
331 (f), Nicholas
JA
stated:
"It
is the experience of prison administrators that unduly
prolonged imprisonment far from contributing towards reforms
brings
about complete mental and physical deterioration of the
prisoner."
15.
The Court a
quo
in its judgment considered the
psychological reports submitted to Court. The Court took cognisance
of
inter alia
the following aggravating circumstances which
were highlighted in the report.
15.1
the incident has caused severe emotional trauma;
15.2
the incident has caused conflict within the family which eventually
has caused
the complainant and her mother to sever ties with their
family and move away;
15.3
the complainant had been subjected to mockery from the community who
were aware
of the rape incident.
16.
The Court further took cognisance of the fact that he was 40
years old, not married, had one minor dependent child and was in good
health.
17.
Having
considered the Court
a
quo's findings on sentence this Court
is of the view, having regard to the aforesaid authorities, that
prolonged imprisonment although
in conformity with public interest,
may not always serve the purpose of reforming the prisoner. This
court finds that the sentence
of life imprisonment is rather harsh
and inappropriate. In particular, the Appellant was a first offender
and his personal circumstances
should be taken into account as well.
In similar circumstances, the courts below have reduced the
sentences. In
S v MM, S v JS, S v
JV
2011 (1) SACR
510
(GNP)
the Court reduced the sentences in the following
matters:
•
In
S
v MM,
the Appellant was convicted
of raping his 12 year old stepdaughter in the family home. On appeal
his sentence was reduced to 12
years.
•
In
S v JS,
the Appellant's sentences for the rape of a 4 year old girl
was reduced to 12 years.
•
In
S v JV,
the Court reduced the sentence to 15 years in respect of the
rape of two victims.
18.
In
S
v GN
2010 (1) SACR 93
(T),
the
Court reduced the sentence of life imprisonment for the rape of a 5
year old to 20 years.
19.
It appears that the Appellant has not shown genuine remorse.
There may have been regret but it does not seem that he appreciated
the grave nature of the crime committed. Persons convicted of rape
should understand that it is a crime of violence which should
not be
tolerated and furthermore the psychological trauma a victim suffers
cannot be ignored. In this instance this incident has
had a
significant impact on the complainant.
20.
However, removing the Appellant from society is certainly not
appropriate in the circumstances.
21.
Having regard to all the facts and circumstances of this
matter, I am of the view that a sentence of 15 years is appropriate.
In
S v Mhlakaza
1997 (1) SACR 515
SCA at 51BF-G,
Harms JA
cautioned that:
"It
remains the Court's duty to impose fearlessly an appropriate and fair
sentence even if the sentence does not satisfy the
public."
O
RDER:-
I
therefore propose the following order:
(1)
The appeal on sentence is upheld;
(2)
The sentence of life imprisonment imposed
is set aside and
substituted with the following:
"The
accused is sentenced to 15 years imprisonment which is
antedated in
terms of
Section 282
of the
Criminal Procedure Act,
51 of 1977
".
_________________
KOOVJIE
AJ
Judge
of the High Court
[1]
S v Sadler
2000 (1) SACR 331
SACR 334E-G
[2]
S v MM, S v JS, S v JV
2011 (1) SACR 510
(GNP) at 517