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[2015] ZAGPPHC 277
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Ngwase v S (A571/14) [2015] ZAGPPHC 277 (4 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION: PRETORIA)
CASE NO: A571/14
DATE: 4 FEBRUARY
2015
NKOSINATHI CHRIST
NGWASE
..........................................................................................
APPELLANT
and
STATE
.......................................................................................................................................
RESPONDENT
JUDGMENT
KHUMALO J
[1] The Appellant
was convicted in the Regional Court for the Division of Gauteng held
in Oberholzer on charges of kidnapping (count
1), assault (count 2)
and rape (count 3) as defined in s 3 read with s 1, 55, 56 (1), 57,
58, 59, 60 and 61 of Act 32 of 2007 and
read with s 92 (2), 94, 256,
257 and 281 of Act 51 of 1977 (“the act”) and further
read with s 51 (2) (b) and part
III of schedule 2 of Act 105 of 1997
(“the Amendment Act”). He was sentenced to 5 years
imprisonment on count 1, cautioned
and discharged on Count 2 and 10
years iamprisonment on count 3. The sentences were ordered to run
concurrently. The Appellant
was effectively sentenced to a period of
10 years imprisonment.
[2] With leave of
the trial court he is appealing against both conviction and sentence.
However at the commencement of the hearing
of the appeal, Counsel for
the Appellant conceded that the magistrate evaluated the evidence
meticulously and with precision and
therefore it cannot be argued
that the magistrate misdirected himself. Appellant then withdrew its
appeal against conviction.
[3] As against
sentence Appellant appeals on the ground that his personal
circumstances together with the following factors should
have,
cumulatively, persuaded the trial court to impose a lesser sentence
than the one imposed due to the fact that:
[3.1] the
complainant did not sustain serious physical injuries;
[3.2] the victim
impact report was not presented at court. It is not known how the
rape affected the complainant, it is submitted
therefore that this is
not the worst kind of rape;
[3.3] there is no
evidence that the Respondent is not amenable to rehabilitation;
[3.4] the appellant
was assaulted by the members of the community before he was placed
under the arrest by the police;
[4] The
aforementioned factors were only raised on Appeal not in the trial
court.
[5]
It is trite that a pronouncement on sentence is within the trial
court’s province and such province is not to be interfered
with
unless exercised inappropriately and injudiciously. To determine if a
sentence is appropriate S v
Rabie
1975
(4) SA 855
(A) at 857D states that the test is whether the sentence
is vitiated by irregularity or by misdirection or is disturbingly
inappropriate.
[6]
A misdirection is said to occur when the magistrate commits an error
in determining or applying the facts for assessing the
appropriate
sentence which is what is Appellant’s contention. However a
mere misdirection is not by itself sufficient to
entitle the Appeal
court to interfere with the sentence. It must be of such a nature,
degree or seriousness that it shows, directly
or inferentially, that
the court did not exercise its discretion at all or exercised it
improperly or unreasonably. Such misdirection
is usually termed one
that vitiates the court’s decision on sentence; see S
v
Pillay
1977
(4) SA at 535E-G.
[7] The facts upon
which the Appellant was convicted were that on or about 17 March 2012
he came upon the complainant in the street,
grabbed and dragged her
to a nearby soccer field. The complainant was 16 years old at the
time. He then instructed her to undress
and when she refused he
slapped her across the face, threw her to the ground and raped her.
Thereafter he walked her through a
passage and held her against the
wall, preventing her from going home. She was found by the
complainant’s sister and a friend
who dragged her away from the
Appellant. The complainant was taken to hospital and the matter
reported to the police. The members
of the public apprehended,
assaulted and handed Appellant over to the police, that is when he
was arrested.
[8] In such instance
where the Accused is convicted of rape the discretionary minimum
sentence applies which is as read in s 51
(2) (b) and part III of
schedule 2 of Act 105 of 1997 (“the Amendment Act”) that
provides that:
(2) Notwithstanding
any other law but subject to subsections (3) and (6), a regional
court or a High court shall sentence a person
who has been convicted
of an offence referred to in—
(b) Part III of
Schedule 2, in the case of—
(i) a first
offender, to imprisonment for a period of not less than 10 years;
(ii) a second
offender of any such offence, to imprisonment for period not less
than 15 years; and
[9] S 51 (3) reads:
“
If
any court referred to in subsection (1) or (2) is satisfied that
substantial and compelling circumstances exist which justify
the
imposition of a lesser sentence prescribed in those subsections, it
shall enter those circumstances on the record of the proceedings
and
may thereupon impose such lesser sentence.”
[10]
In addition to compliance with the aforementioned prescripts of the
law the court’s decision on what is an appropriate
sentence
must also be informed by the Zinn triad in
SvZinn
1969
(2) SA 537
(A), that requires a balanced consideration of the factors
that relate to the personal circumstances of the offender, the crime
and the interest of society whilst not losing perspective on the
purpose of sentencing which is deterrence, prevention, retribution
and rehabilitation. The length and nature of sentence must therefore
reflect a consideration and a bearing to all these elements.
[11] In its
deliberation on what was an appropriate sentence to impose upon the
Appellant the court a quo took into consideration
the following
personal circumstances that were proffered on Appellant’s
behalf that he was 24 years old, employed as a builder
earning R700
every 14 days, unmarried with a 2 year old child. He was assaulted by
the public before he was arrested. He spent
2 years in custody
awaiting trial. The court also at the same time acknowledged the
prejudice that he might suffer as a result
of the cumulative effect
of the numerous sentences since he was convicted of several offences.
[12]
The court then in its deliberation also looked at the abovementioned
factors measuring them against the not so favourable factors
in order
to arrive at a balanced decision and also to determine if for the
purpose of the schedule 2 offence there are substantial
and
compelling circumstances that justify deviation from the prescribed
sentence. The court then took into account that the Appellant
was a
repeat offender. He has already served time for a previous conviction
on a violent crime. He has been convicted of several
crimes that also
involve violence with one for which the court is implored to impose a
prescribed minimum sentence. It also took
into regard that the
offences were of a serious nature, the prevalence of rape in our
society, the indignity that the complainant
suffered in the hands of
the Appellant being barely 16, her vulnerability, the total disregard
of her rights that Appellant displayed
and of any respect to the
community. All these factors played a decisive role in the
determination of an appropriate sentence by
the trial court. It found
that when weighing them the personal circumstances of the Appellant,
for the purpose of sentencing in
the case of the serious crime of
rape, are readily dominated by the aggravating circumstances, that
the learned magistrate deemed
it appropriate to impose the prescribed
minimum period of 10 years imprisonment, finding no substantial or
compelling circumstances
to deviate. That was in line with the
decision in S v/
Vilakazi
2009
(1) SACR 552
(SCA) par [58] that:
“
In
cases of serious crime the personal circumstances of the offender, by
themselves, will necessarily recede into the background...But
they
are nonetheless relevant in another aspect. A material consideration
is whether the accused can be expected to offend again,”
[13]
The Appellant was in fact treated with a measure of mercy if the
sentence is viewed from a perspective that the sentences were
ordered
to run concurrently with a sentence of another serious offence of
kidnapping. The trial court actually did mention that
it cannot
overlook the aspect of mercy as a result all options were going to be
carefully considered to determine the appropriate
sentence. What must
have come into the fore was the propensity of the Appellant to commit
a violent crime. I find the sentence
appropriate under the
circumstances. What is more striking to me is the fact that the
offence was committed in the glare of the
public. Appellant was not
deterred by the fact that somebody known to the complainant saw him
dragging the complainant and her
sister was probably going to be
informed of the kidnapping. There were also police nearby and members
of the community who were
looking at an accident. He, regardless,
went through with his intention and raped her, showing no respect to
the complainant, her
family and the public. The learned magistrate
mentioned that society expects that we will show respect to each
other. In this matter
members of the public felt also disrespected
and violated, that such a despicable crime can happen in their midst
with such contempt
as it was shown by their indignation. It is the
reason why the late Chief Justice, Ismail Mahomed, stated In S
v
Chapman
[1997] ZASCA 45
;
1997
(2) SACR 3
SCA at 5d that:
"The Courts are
under a duty to send a clear message to the accused, to other
potential rapists and to the community: We are
determined to protect
the equality, dignity and freedom of all women and girl-children, and
we shall show no mercy to those who
seek to invade those rights.”
The courts must
strive to instill public confidence in the law and discourage anarchy
and the ineffectuality of the rule of law.
The public must never find
a need to take the law into their own hands.
[14] The Appellant
mentioned the victim impact report that was not submitted as one of
the factors that could have swayed the magistrate
to impose a lesser
sentence. The victim impact report is not for the purpose of serving
as a mitigating factor for the perpetrator
and not statutorily
required but discretionary. The fact that it was not called for
cannot be used as a reason to benefit the offender
to then receive a
lenient sentence. The use of the reports as much as it can sometimes
assist, it can also be a source of controversy.
I find it
irreconcilable with jusiice that an offender will receive a more
lenient sentence on the basis that his chosen victim
did not display
any traumatic predispositions or suffer any visible physical injuries
thus rewarding the offender for having chosen
his victim well.
[15]
The referral also by the Appellant to the fact that Complainant did
not suffer any physical injuries is misconceived. In the
case of rape
that fact does not reduce the gravity of the offence.
S
51
(3)
(aA) (ii) of the
Criminal
Law Amendment Act 105
of
1997
provides
that an apparent lack of physical injury to the complainant shall not
constitute substantial and compelling circumstances
justifying the
imposition of a lesser sentence when imposing a sentence in respect
of the offence of rape.
[16] I am satisfied
that there was no material misdirection by the court a quo that can
justify interference with its sentencing
of the Appellant, under the
circumstances I make the following order:
[16.1] The appeal
against sentence is dismissed. The court a quo order on conviction
and sentence stands.
N V KHUMALO J
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION:
PRETORIA
I concur
C VAN DER
WESTHUIZEN
ACTING JUDGE OF
THE HIGH COURT
GAUTENG DIVISION
COURT
On behalf of
Appellant: Adv R S MATLAPENG
Instructed by:
Pretoria Justice Centre
Legal Aid: South
Africa
On behalf of
Respondent: M MOLATUDI
Instructed by:
National Director of Public
Prosecutions