About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2014
>>
[2014] ZAGPPHC 74
|
|
Chauke v S (A824/13) [2014] ZAGPPHC 74 (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