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[2015] ZAECELLC 5
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S v Nqumashe and Another (CC94/2014) [2015] ZAECELLC 5 (11 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE
LOCAL CIRCUIT, EAST LONDON
CASE
NO: CC 94/2014
DATE
HEARD: 10/2/15
DATE
DELIVERED: 11/2/15
NOT
REPORTABLE
In
the matter between:
THE
STATE
and
THANDO
NQUMASHE
.........................................................................................
ACCUSED
1
BONGANI
NTSHOZA
...........................................................................................
ACCUSED
2
JUDGMENT:
SENTENCE
PLASKET
J
[1]
Both accused were charged with two counts of kidnapping and two
counts of robbery with aggravating circumstances. In addition,
accused 1 was charged with the offence of sexual assault in terms of
s 5
of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007
, as well as rape in terms of
s 3
of the same
Act.
[2]
Both accused pleaded guilty to all of the charges and I duly
convicted them on the basis of their pleas, having satisfied myself
that they had admitted every element of each charge. I now have
the task of sentencing them for their crimes.
[3]
In determining a sentence in respect of each offence I am required to
have regard to the personal circumstances of the accused,
the nature
and gravity of the offences they committed and the interests of
society.
[4]
I do not have a free hand to impose whatever sentences take my fancy.
My sentencing discretion must be properly and judicially
exercised. I
am also bound by the provisions of the
Criminal Law Amendment Act 105
of 1997
which provide that, in respect of the robbery convictions, I
must impose a sentence of 15 years’ imprisonment, and in
respect
of the rape conviction, life imprisonment, unless I find
substantial and compelling circumstances to be present that justify
less
severe sentences.
[5]
No minimum sentence is prescribed for the offence of kidnapping. As
no sentence (or range of sentences) is prescribed for the
offence of
sexual assault, I am, in terms of
s 56A
of the Criminal Law (Sexual
Offences and Related Matter) Amendment Act, free to impose a
sentence, as provided for in
s 276
of the
Criminal Procedure Act 51
of 1977
that is within my sentencing jurisdiction and that I consider
to be appropriate. The same situation applies to the kidnapping
counts.
[6]
I turn now to the facts.
[7]
On the night of 21 January 2014, the accused were driving a car, used
as a taxi, in the centre of East London. They stopped
for the
complainant in counts 1 and 2 (who I shall refer to as AS) who
apparently believed the accused to be operating a taxi.
She
said she wanted to be taken to Nompumelo Township near Beacon Bay.
Instead, the accused took her elsewhere and robbed
her of the
property in her possession. They did so at knife point.
They also took her to an automatic teller machine
(an ATM) and
attempted to draw money from her account. When this was
happening, both accused wielded weapons – a screwdriver
in the
case of accused 1 and a knife in the case of accused 2.
[8]
Even after this, the accused continued to hold AS against her will.
According to accused 1, they had decided to hold her
until after
midnight when, I presume, a new daily limit for withdrawals came into
effect, thus enabling them to draw money from
her account.
[9]
They continued to hold her against her will and drove around East
London. They came across the complainant in counts 3,
4, 5 and
6 (who I shall refer to as AG) who also assumed that the accused were
operating a taxi. When she entered the vehicle,
she was robbed
of her possessions at knife point and held against her will.
Accused 1 drove the vehicle to Haven Hills where
he, according to his
statement in terms of
s 112(2)
of the
Criminal Procedure Act,
‘caressed
and fondled the breast and body’ of AG. He then
drove to a secluded spot in Wilsonia where he raped AG twice.
[10]
It would appear from the statement of substantial facts – this
not having been dealt with in the accused’s s 112(2)
statements
– that AG was released soon after being raped but AS continued
to be held against her will until the accused were
stopped by the
police.
[11]
I now turn to the three sets of factors that I am required to
consider in arriving at appropriate sentences.
[12]
I shall commence with the personal circumstances of the accused.
Both were mature men when they committed these crimes.
Accused 1 is
29 years old and accused 2 is 35 years old. Accused 1 is a first
offender. Accuseds 2’s previous convictions
are either
very old or irrelevant to this matter, so I will treat him as a first
offender. Both are fathers of young children.
Accused 1 works as a
taxi driver. Accused 2 is self-employed, repairing radios and
television sets. Both earn modest livings
that go, in part, to
the maintenance of their children. Both have little formal
education. Accused 1 completed standard 5
and accused 2
completed standard 2. Both claim that they were under the
influence of liquor when the offences were committed.
[13]
I have set out the facts of the case. They speak for themselves as to
the seriousness of the offences committed by the accused.
They
testified that they had planned the offences in advance. Because they
were short of money with which to buy liquor, they decided
to wait
for dark and then, masquerading as taxi drivers, drive around until
stopped by a person who wanted to be conveyed by them.
They would
then rob their passenger.
[14]
That is precisely what they did and their victims were two young
women. Both were, particularly on account of their gender,
vulnerable. Both were robbed at knife point and both were held
against their will. AS was held against her will so that she
could be
robbed later of whatever the accused could draw from her bank
account. AG was held against he will, after being robbed,
so that
accused 1 could rape her.
[15]
When accused 1 was cross-examined by Mr Mgenge, who appeared for the
State, he was asked why, having robbed AG, he had not
released her,
he said at first that the thought had not crossed his mind. It was
then put to him that he had decided then that
he was going to rape
her. He agreed with this proposition. Again he agreed with the
proposition that when he sexually assaulted
her at Haven Hills, he
already had decided to rape her. It was then put to him that he had
taken AG to Wilsonia with the purpose
of raping her. He agreed
with this proposition.
[16]
Both AS and AG testified in aggravation of sentence. Both impressed
me, not only on account of their forthright, measured and
impressive
testimony of their terrible experiences at the hands of the accused,
but also on account of their fortitude in dealing
with the
consequences and the mature way in which they appear to have coped.
That said, however, it is clear from both that they
still live with
and experience the effects of the trauma inflicted on them by the
accused and will continue to do so into the future.
[17]
When the accused testified they expressed remorse and apologized for
their deeds. They were forthright as to why they
did what they
did except that accused 1 was not able to give any explanation why he
had fondled and then raped AG.
[18]
In the matter of
S v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA), a case in which a man had prowled the streets
and a shopping mall in search of women who he deceived by giving them
lifts
before raping them, Mahomed CJ, Van Heerden JA and Olivier JA
spoke of the rights of women to go about their business freely,
without
fear or hindrance and to come and go without fear,
apprehension or insecurity. Those rights, and the interest of society
to protect
them for the benefit of all, come to the fore most
strongly in this case.
[19]
Both complainants were on their way home. They wished to catch a taxi
home but the accused, in the furtherance of their plan,
were on the
prowl in search of victims to rob. Although accused 2 denied that
they were on the prowl for ‘soft targets’,
as it was put
by Mr Mgenge, it seems to me that it was not fortuitous that their
victims happened to be young women on their own,
rather than
strapping young men.
[20]
Society has an interest in the protection of the vulnerable against
all forms of exploitation and particularly against violent
and
predatory conduct such as that of the accused.
[21]
I turn now to the individual offences of which the accused have been
convicted.
[22]
As I have said, the robberies were planned well in advance. The
accused had to wait for darkness before executing their plan
but
apparently did not reflect on what they were about to do and
reconsider. The motive for the robberies was, purely and simply,
greed and the violent acts of robbery were accompanied by an element
of deceit. While the accused stated that they were under the
influence of alcohol, there is no evidence as to the degree of their
intoxication and its effect on their judgment. I take it into
account
for what it is worth.
[23]
I also take into account the short and longer term effects that the
accuseds’ actions had on their victims, as well as
the
expression of remorse made by the accused and the fact, for what it
is worth, that they pleaded guilty to all charges. I have
qualified
this last factor because Mr Mgenge argued that because of the
strength of the State case, the accused had little choice
but to
plead guilty. What can be said for the accused however, is that, by
and large, they tried to make a clean breast of it.
I also, of
course, take into account the personal circumstances of the accused.
[24]
When the gravely aggravating factors relating to the offence of
robbery are weighed against those factors that are mitigatory,
I am
of the view that the former outweigh the latter to such an extent
that I cannot conclude that substantial and compelling circumstances
are present to justify a departure from the prescribed minimum
sentence of 15 years’ imprisonment in respect of counts 2
and
4. That finding applies to both accused.
[25]
I view the counts of kidnapping as serious, particularly the
kidnapping of AS. She was held for a longer period that AG. She
was
held, after she was robbed initially, with the intention of robbing
her again when her money would become available. While
it is not
clear when precisely accused 1 decided that AG should be deprived of
her liberty so that she could be raped, it is reasonable
to assume
that this happened, at best for accused 1, shortly before he took her
to Haven Hills.
[26]
In my view, a sentence of five years’ imprisonment in respect
of each count of kidnapping is appropriate in respect of
both of the
accused. I do not believe, however, that this sentence, given the
aggravation present in count 1 should, in respect
of accused 2, run
completely concurrently with count 2. (The reason why this does not
apply to accused 1 will become apparent shortly.)
[27]
The counts of sexual assault and rape relate only to accused 1. The
fact that accused 1 had deprived AG of her liberty before
sexually
assaulting her aggravates this offence: he had complete control over
her, control exerted what is more, by violence and
a weapon. In my
view, a sentence of six months imprisonment must be imposed in
respect of count 5.
[28]
From my exposition of the facts and the evidence of accused 1, it is
clear that he decided to rape AG at least shortly before
he sexually
assaulted her at Haven Hills. To that extent the rape was
pre-planned. He raped AG in the presence of accused 2 and
AS, thus
amplifying the humiliation that he inflicted on AG. He raped her
twice and did so despite accused 2’s pleas that
he should not
rape her. Despite AG’s fortitude and mature insight into what
happened to her, it is clear to me that the effects
on her of accused
1’s actions are severe and will endure for a very long time.
[29]
In these circumstances, I am of the view that all of the factors in
favour of accused 1 are insufficient to constitute substantial
and
compelling circumstances in respect of the rape conviction. Life
imprisonment is accordingly the prescribed sentence.
[30]
For the reasons set out above, I impose the following sentences:
[31]
Accused 1:
(a) Count 1
(kidnapping) – 5 years’ imprisonment;
(b) Count 2 (robbery
with aggravating circumstances) – 15 years’ imprisonment;
(c) Count 3
(kidnapping) – 5 years’ imprisonment;
(d) Count 4 (robbery
with aggravating circumstances) – 15 years’ imprisonment;
(e) Count 5 (sexual
assault) – 6 months imprisonment;
(f)
Count 6 (rape) – life imprisonment.
[32]
Accused 2:
(a) Count 1
(kidnapping) – 5 years’ imprisonment;
(b) Count 2 (robbery
with aggravating circumstances) – 15 years’ imprisonment;
(c) Count 3
(kidnapping) – 5 years’ imprisonment;
(d) Count 4 (robbery
with aggravating circumstances) – 15 years’ imprisonment.
(e) Counts 3 and 4
will run concurrently with count 2. Three years of count 1 will
run concurrently with count 2. Accused
2’s effective sentence
is thus 17 years imprisonment.
______________
C.
PLASKET
JUDGE
OF THE HIGH COURT
APPEARANCES:
For
the State: Adv Mgenge, instructed by National Director Public
Prosecutions, Grahamstown.
For
Accused 1: Adv Mhlaba, instructed by Legal Aid, East London.
For
Accused 2: Ms Marenene, instructed by Legal Aid, East London.