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2014
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[2014] ZAGPPHC 48
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Chauke v S (A824/13) [2014] ZAGPPHC 48 (28 February 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE NORTH
GAUTENG HIGH COURT, PRETORIA
CASE
NO: A824/13
DATE:
28/2/2014
In the matter
between
BAFANA BENNY
CHAUKE
..............................................
APPELLANT
AND
THE
STATE
....................................................................
RESPONDENT
JUDGMENT
THULARE AJ
[1] The appellant,
then 37 years of age, was convicted and sentenced in Soshanguve, in
the Regional Division of Gauteng, in December
2009, on a charge of
rape he had committed a year earlier. It is against his sentence of
life imprisonment that he appeals to this
Court, after leave was
granted by the trial court.
[2] What is
available on the record before us shows that the complainant, then a
79 year old female person was attacked during the
night in her own
home, where she was raped and assaulted by the appellant, who was her
neighbour.
[3] The Medical
Doctor who examined her on the morning after the night incident,
observed multiple abrasions on both the inner and
outer lips of her
vagina as well as a small fresh tear at the forked fold of the skin
at the lower edge of the vagina as well as
minor bleeding at that
fork fold. These were injuries relating to the act of insertion of
the penis into the vagina.
The Medical Doctor
also observed abrasions and bruising on the right upper arm, swollen
surroundings of and the red left eye,, abrasions
on both cheeks and
bruising on the left upper arm and hand, bruised lips and chest.
These were injuries were evidence of assault.
The complainant was
groaning, moaning and shivering at the time of the medical
examination.
[4] The appellant
was assaulted to subdue her, and also raped. The circumstances
indicated that the appellant was so daring that
he caused the elder
to light up the house for her to see him, and also proudly told her
who he was, calculated to belittle and
embarrass her.
[5] Age is but a
number. However, the number of years of one’s lifetime
accumulates life skills that positions one to mitigate
youthful
inadvertence and inexperience. Age gives one insight into life.
Generally it is accepted, in our country, that one qualifies
to be
titled a youth until the age of 35. At 36, when the offence was
committed, the appellant was advanced in life. He had fully
developed
and had reached the age of maturity. He is deemed to have reached the
stage of being complete as a human being. I venture
to suggest that
appellant had reached a point where he should fully account for his
actions.
[6] In S v WV
2013(1) SACR 204 GNP at page 210 paragraphs 30-32 Legodi J said the
following:
“[30] It is
when offences of this nature are committed against an innocent and
defenceless society, that the society looks
to the courts for
protection.
[31] It is the kind
of sentence which we impose that will drive ordinary members of our
society either to have confidence or to
lose confidence in the
judicial or justice system. The sentences that our courts impose when
offences of this nature are committed,
should strive to ensure that
people are not driven to take the law into their own hands, but
rather to scare away would-be offenders.
[32] However, whilst
society expects offenders of the serious offences to be appropriately
punished when convicted, it is expected
that the personal
circumstances of each offender should be accorded an appropriate
consideration in assessing a balanced sentence
to be imposed.”
[7] The appellant
has one previous conviction of assault for which he was convicted in
October 1989, two of assault with intent
to do grievous bodily harm
for which he was convicted in August 1990 and June 1992 respectively,
as well as one of culpable homicide
for which he was convicted in
September 1992.
[8] All these
happened whilst he was still a child. For the first two offences, he
was sentenced to corporal punishment. Thereafter
he was sentenced to
a fine with alternative of imprisonment and for the last previous
conviction he was referred to a reformatory
school in terms of the
then Child Care Act.
[9] In my view, the
personal profile of the appellant imposed a duty on the judicial
officer invested with the task of sentencing
him to ensure that she
receives all relevant information pertaining to the appellant, to
enable the judicial officer to structure
a sentence that will best
suit the individual needs and interests of the appellant. In failing
to call for a proper diagnosis of
the family set-up of the appellant,
and his faculties and/or his community influences, through relevant
reports from persons with
the training, skill, experience and
competence beyond an average judicial officer, around intellectual
and/or psycho-social challenges
of the appellant, the sentencing
officer did not strive for the individualization of the appellant.
The decision on sentence was
arrived at arbitrarily. It is not
surprising, in my view, that it is disproportionately harsh. A
sentence should, amongst others,
promote the rehabilitation of the
offender and prioritise reintegration back into the family and
community.
[10] The disposition
of the appellant from his youth, is a consistent knock for attention,
on the door that seems closed and barred.
His aptitude calls for his
subjection to some programmes for correction, that only a proper
analysis can discern.
I would make the
following order:
1. The appeal
against sentence is upheld.
2. The order of the
Court a quo on sentence is set aside and replaced with the following:
“Accused is
sentenced to 20 years imprisonment antedated to 15 December 2009.”
DM THULARE
ACTING JUDGE OF
THE HIGH COURT
I agree, and it
is so ordered.
TJ RAULINGA
JUDGE OF THE HIGH
COURT