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[2014] ZAGPPHC 243
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Magano v S (A422/2013) [2014] ZAGPPHC 243; 2014 (2) SACR 423 (GP) (26 March 2014)
JM
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(REPUBLIC
OF SOUTH AFRICA)
PRETORIA
CASE
NO: A422/2013
DATE:
26 MARCH 2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
CHANKILE
SAMUEL
MAGANO APPELLANT
And
THE
STATE RESPONDENT
JUDGMENT
MSIMEKI
J:
[1]
On 8 February 2001, and in the Pretoria Regional Court, the Appellant
was convicted of rape of a 12 year old girl. Section 51
(1) of the
Criminal Law Amendment Act, Act 105 of 1997 (the CLAA) found
application in this matter. The Regional Court stopped
the
proceedings in terms of Section 52 (1) (b) of the CLPA and committed
the accused for sentence as contemplated in Section 51
(1) and (2) by
the High Court.
[2]
The High Court referred the matter back to the Regional Court. It is
not clear from the record why the matter was so referred.
The
Regional Court magistrate at page 64 lines 17-22 said:
“
It
is common cause that the matter having been referred to this court to
make an enquiry, to make a finding whether there is (sic)
substantial
or compelling circumstances which can make this court impose a
sentence on your person other than sending the matter
to the High
Court.”
[3]
The Regional Court again referred the matter back to the High Court
for sentencing. Els J then considered the matter and found
that the
Regional Court had correctly convicted the Appellant and that the
proceedings had been in accordance with justice.
[4]
I am not going to deal with the issue whether what transpired when
the matter was sent back to the Regional Court and from there
back to
the High Court was correct as this is not the issue that this court
has been called upon to resolve.
[5]
On 4 February 2002, Els J sentenced the Appellant to life
imprisonment. On 22 August 2006 the Appellant applied for leave to
appeal against the conviction and sentence. The court refused the
application.
[6]
The Appellant then petitioned the Supreme Court of Appeal for leave
to appeal the refusal by the sentencing court of the application
for
leave to appeal. Such leave to appeal to the full court of this
Division was granted. The Supreme Court of Appeal, when granting
the
leave to appeal said:
“
The
leave to appeal is limited to the following sentence: The full Court
should consider the failure of the court to request a pre-sentence
report.”
[7]
It is appropriate to refer to the brief facts of this matter before I
deal with the issue which the court has been called upon
to resolve.
The Complaint’s testimony reveals that on 18 May 1999, she (L.
M.) and Peter A.M., her brother met the Appellant
when they were on
their way to school. They met him next to a cemetery. The Appellant
beat them with a stick and accused them of
not wanting to go to
school. The Appellant further told them that he would look for others
who were also not keen to go to school.
He took them to a house where
he ordered the complainant’s brother to undress and to have
sexual intercourse with her. The
brother refused. He was then hit
with a stick and covered with a sheet or a blanket. The complainant
was then ordered to undress
where after the appellant then assaulted
and raped her. She cried while she was being raped. The brother
corroborated the sister’s
evidence when he testified. He told
the court that the hole that the sheet or blanket had enabled him to
see what the Appellant
was doing to his sister. He later told the
father about their ordeal.
On
18 May 1999, Ayanda Gomotsu Vilakazi, a district medical officer in
Pretoria, examined the complainant after the rape. She compiled
a
report which discloses that the complainant was […..] years
old at the time. She had not started menstruating. The officer
noted
tears of the hymen at five, six and seven o’ clock. She also
observed a tear on the complainant’s perenium. The
injuries,
according to her, were consistent with forceful penetration. The
Appellant testified and confirmed that he, indeed, had
met the
complainant and the brother on the day of the incident. This
confirmed the state’s evidence and solved the issue
of
identity. He, however, testified that he, after meeting the two, had
accompanied them to their section and parted ways with
them. He
conceded that he was known to the complainant and her brother but
denied raping the complainant.
[8]
The issue the court has to concern itself with relates to the
pre-sentence report. S S Terblanche in his work
:
Guide to sentencing in South Africa,
Second
Edition, at page 104 paragraph 6.1 says:
“
Any
report drawn by an expert of some kind which is designed to assist
the court in the quest to find an appropriate sentence can
be
described as a pre-sentence report. Although these reports are
usually probation reports drawn by probation officers in the
employ
of the state. Many other reports also qualify. These include reports
by private social-welfare experts, criminologists,
psychiatrists and
clinical psychologists
”.
See
also S v Dlamini
1991 (2) SACR 655
(A) at 667 g-h
.
[9]
It is evident that pre-sentence reports are meant to provide guidance
to the exercise of the discretion which a court has to
exercise
properly and judicially when sentencing a convicted offender. The
reports assist a presiding officer to understand the
offender and
the reasons for the crime - this being one of the triad of factors
that the court has to consider when deciding on
an appropriate
sentence. These reports are called for where a court feels the need
to be better informed about the character and
the possible future of
the offender. An ideal pre-sentence report must embody all the
necessary information relevant to the offender,
the victim and the
community. To be able to decide on an appropriate sentence the
sentencing court needs to have sufficient information
such as
information relating to mitigating and aggravating factors.
[10]
Pre-sentence reports are usually called for by the prosecution or the
defence. The court, however, has a duty to step in and
call for such
reports where the need arises.
In Rammoko v Director of Public
Prosecutions
2003 (1) SACR 200
(SCA) at 205g
the court said
:
“
[14]
and the placing of important information before the sentencing court
is not the responsibility of counsel
alone. The presiding officer who
must satisfy himself before imposing the prescribed sentence that no
substantial and compelling
circumstances are present also bears some
responsibility”
In
S
v Dlamini
2000 (2) SACR 266
(T) at 268 d-e
Van
Der Walt J, said:
“
Die
hof wat vonnis oplê in ʼn strafsaak neem ʼn aktiewe rol
in die verhoor en sit nie net passief by waar getuienis
gelei word
nie. Inderdaad bepaal art 186 van die Strafproseswet 51 van 1977 dat
die hof kan op enige standium van strafregtelike
verrigtinge iemand
as ʼn getuie by daardie verrigtinge dagvaar of laat dagvaar en
die hof moet ʼn getuie aldus dagvaar
of aldus laat dagvaar indien
die getuienis van so ʼn (small) getuie vir die hof blyk
noodsaaklik te wees vir die regverdige
beregtiging van die saak.”
A
pre-sentence report which tells the court more about the offender and
the victim always has the added advantage of properly placing
before
court all the information which explains why the offender committed
the offence as well as his or her view with regard to
the offence
itself. If properly done, such evidence would also explain whether or
not the offender is remorseful. The report which
covers the victim as
well, discloses the impact that the offence has had on her. The
sentencing court is then able to impose informed
and properly
considered sentences which are well balanced.
[11]
The sentencing court had a discretion to exercise to call for the
report or not. The court did not call for the report but
proceeded to
pass the sentence.
[12]
The court, according to the record, did not engage the legal
representatives regarding the question whether substantial and
compelling circumstances existed in this matter.
[13]
On the issue of the victim the court said:
“
Die
buskuldigde het ʼn kind van [….] jaar verkrag. Daar is nie
getuienis van hoe ernstig of indien sy enigsins beseer
is nie, maar ʼn
mens hoef nie getuienis te hê om jou voor te stel wat se trauma
so ʼn kind met so ʼn ondervinding
moet opdoen nie.”
The
court then proceeded to say:
“
Ek
is nie tevrede dat daar enige wesenlike of dwingende onstandighede is
wat ʼn ligter vonnis reverdig as die verpligte vonnis
voorgeskryf
deur die Wet nie”
The Appellant was then
sentenced to life imprisonment.
See page 82 of Volume 2 of the
court record lines 18-24.
[14]
The court, without calling on Mr Kanyane for the Appellant, to
address it on whether or not substantial and compelling circumstances
existed in the case, merely asked if he agreed that the complainant
had been [….] years old at the time of the rape and
then said:
“
Yes
Mr Kanyane? Mitigation for sentence. How old is the accused? How old
is the accused?” page 78 lines 7-9.
Mr
Kanyane then informed the court that the Appellant was [……]
years old and that he was [……] years
old when the
offence was committed. Although unmarried, he had two children a boy
and a girl, aged [….] and […] years
respectively. He
worked as a police informer and had passed standard [….]. He
had been in custody for 2 years awaiting trial.
The
State asked that the Appellant be sentenced to life imprisonment.
Without much ado, as shown above, the court acceded thereto
and,
accordingly, sentenced the Appellant to life imprisonment. This
sentence seems to have worried the Supreme Court of Appeal
which then
asked this court to deal with the High Court’s failure to
request a pre-sentence report.
[15]
Mr Mojuto, on behalf of the Appellant, submitted that the sentencing
court ought to have obtained a pre-sentence report before
passing
sentence; that Mr Kanyane had not been given proper latitude to
adequately address the court on the Appellant’s
history, his
childhood and interpersonal relationship, for instance; that the
court had merely asked leading questions which restricted
Mr Kanyane
in his address on mitigating circumstances; and that the state and
the defence had not been invited to address the court
on whether or
not substantial and compelling circumstances exist in this case. Mr
Mojuto contended that sentencing the Appellant
to life imprisonment
with inadequate information pertaining to sentence amounted to a
misdirection. Ms Roos, for the state, disagreed
and submitted that
there was no misdirection and that the sentence had been appropriate.
[16]
Mr Mojuto submitted that if the court found that there was, indeed, a
misdirection, the matter does not have to be remitted
to the
sentencing court as the Appellant has already served approximately 15
years in jail. According to Mr Mojuto, remitting the
matter to the
sentencing court would be prejudicial to the Appellant in that the
sentencing court, in the absence of substantial
and compelling
circumstances, could again sentence the Appellant to life
imprisonment. In the event that we found that there was,
indeed, a
misdirection, remitting the matter in the circumstances of the matter
in casu
would result in immense prejudice on the part of the
Appellant. This aspect was not even considered by Ms Roos who
contended that
the sentencing court had not misdirected itself.
[17]
Mr Mojuto implored this court to find that there, indeed, was a
misdirection necessitating the setting aside of the sentence
and
replacing it with a sentence of 17 years imprisonment which would
then have to be antedated to 4 February 2002 which is the
date on
which the Appellant was sentenced.
[18]
The Supreme Court of Appeal, in my view, was concerned about the
severity of the sentence which had been accompanied by inadequate
information relevant to sentencing. This, in my view, caused it to
request this court to look into the aspect of the High court’s
failure to request a pre-sentence report.
[19]
A proper consideration of the record clearly reveals that:
1.
The passing of a sentence of life imprisonment required the presence
of enough
information to enable the sentencing court to produce an
informed and a balanced sentence. This information, which would have
touched
on the Appellant and the victim, in my view, is non-existent.
The court needed more information relating to the Appellant and the
complainant. The court, indeed, remarked saying:
“
Daar
is nie getuienis van hoe ernstig of indien sy ernstig beseer is
nie”
The court then went on
and said:
“
maar
ʼn mens hoef nie getuienis te hė om jou voor te stel wat se
trauma so ʼn kind met so ʼn ondervinding moet
opdoen nie”
To proceed and sentence
the Appellant to a term of life imprisonment with the information
that the court had, in my view, amounted
to a misdirection. The court
is in that event at large to consider the sentence afresh.
[20]
In S v Rabie
1975
(4) SA 855
(A) at 857 D-E
Holmes JA said:
1.
In every appeal against sentence whether imposed by a magistrate or a
judge,
the court hearing the appeal –
(a)
Should be guided by the principle that punishment is “pre-eminently
a matter for the
discretion of the trial court”; and
(b)
Should be careful not to erode such discretion: hence the further
principle that the sentence
should only be altered if the discretion
has not been “judicially and properly exercised”.
2.
The test under (b) is whether the sentence is vitiated by
irregularity or misdirection
or is disturbingly inappropriate”.
I have
demonstrated that the sentence in the matter
in
casu
is vitiated by misdirection
resulting in it being disturbingly inappropriate. The sentence,
therefore, deserves to be altered.
[21] In
S v Malgas
(2001) 3 ALL SA 220
(A) at 232 paragraph [25] B
Marais JA said:
“
Courts
are required to approach the imposition of sentence conscious that
the legislature has ordained life imprisonment (or the
particular
prescribed period of imprisonment) as the sentence that should
ordinarily and in the absence of weighty justification
be imposed for
the listed crimes in the specified circumstances”.
At
233 C (I) the court said:
“
If
the sentencing court on consideration of the circumstances of the
particular case is satisfied that they (substantial and compelling
circumstances) render the prescribed sentence unjust in that it would
be disproportionate to the crime, the criminal and the needs
of
society, so that an injustice would be done by imposing that
sentence, it is entitled to impose a lesser sentence.”
[22]
In this matter the misdirection has resulted in an inappropriate
sentence. The court, even where the prescribed sentence is
not to be
imposed, has to be mindful of the fact that crime such as the
Appellant has been convicted of “
has been singled out for
severe punishment and that the sentence to be imposed in lieu of the
prescribed sentence should be assessed
paying regard to the benchmark
which the legislature has provided.” See page 233d (J) of S v
Malgas (supra).
[23]
The Appellant was 32 when he was sentenced and 30 years old when the
offence was committed. He is unmarried but is a father
of two
children, a boy and a girl aged 10 and 17 at the time of the
imposition of the sentence. He was a police informer who was
not
gainfully employed. He passed standard 9 and was in custody for 2
years awaiting trial. He has a previous conviction unrelated
to the
present offence which the sentencing court, correctly in my view,
does not seem to have considered for the purposes of sentence.
[24]
Having established that the sentence imposed on the Appellant needs
to be altered and having regard to the circumstances of
this matter
the appeal against sentence, in my view, should succeed.
[25]
In the result I make the following order
ORDER
1.
The appeal against sentence is upheld.
2.
The sentence of the sentencing court,
namely life imprisonment, is set aside and replaced with the
following sentence.
“
The
accused is sentenced to 20 years imprisonment”.
3.
The sentence is ante dated to 4 February
2002.
____________
M.W MSIMEKI
JUDGE OF THE HIGH
COURT
NORTH
GAUTENG, PRETORIA
I
agree
_______
_____
____
C.P RABIE
JUDGE OF HIGH COURT
NORTH
GAUTENG, PRETORIA
I
agree
________________
A.M.L PHATUDI
JUDGE OF THE HIGH
COURT
NORTH GAUTENG,
PRETORIA
COUNSEL
FOR THE APPELLANT:
Adv.J M MOJUTO
INSTRUCTED
BY: PRETORIA
JUSTICE CENTRE.
COUNSEL
FOR THE RESPONDENT:
Adv.A ROOS
INSTRUCTED
BY:
DATE
OF HEARING: 26 FEBRUARY 2014
DATE
OF JUDGMENT: 26 MARCH 2014