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2014
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[2014] ZAGPPHC 156
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Kekana v S (A 989/09) [2014] ZAGPPHC 156 (4 April 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT,PRETORIA)
CASE
NUMBER: A 989/09
DATE:
4 APRIL 2014
NOT
REPORTABLE
In
the matter between:
JONAS
MALESELA
KEKANA
......................................................................
APPELLANT
and
THE
STATE
...........................................................................................…...
RESPONDENT
JUDGMENT
TLHAPI
J
[1]
The appellant was convicted of rape of a
two year old girl in the Regional Court in Benoni, Gauteng. He was
sentenced to life imprisonment.
The appellant pursued his right to an
automatic appeal and filed a notice to appeal his sentence. The
matter was postponed sine
die to the full bench with a further order
that a victim assessment psychological report be obtained made
available for consideration
at the appeal hearing.
I
shall not summarize the entire evidence save to refer to it where
necessary.
[2]
It was submitted that the Learned
Magistrate had erred in a number of respects. Briefly, that he failed
to consider the triad; time
spent in custody as an awaiting trial
prisoner; that the appellant was a first offender; in not imposing a
shorter sentence coupled
with a suspended sentence; his age and in
finding that no substantial and compelling circumstances were present
justifying imposition
of a lesser sentence. Furthermore, that the
learned magistrate had erred in over emphasising the seriousness of
the offence; the
interests of society and prevalence of the offence.
[3]
I have regard to the further grounds as
supplemented and amplified in the heads of argument and submissions
filed on behalf of the
appellant. It was contended that the trial
court should have conducted a thorough investigation into the
circumstances of the appellant
by calling for a probation officer’s
report, a victim impact report and consideration should have been
given to his consumption
of alcohol prior to the incident. In as far
as the victim impact report was concerned it was contended that the
report was compiled
two years after the incident and that there was
no indication that the trauma suffered was of a permanent nature.
Counsel
for the respondent submitted that the sentence should not be
interfered with in that there was no material misdirection
by the
trial court in concluding that no substantial and compelling
circumstances were present. Furthermore, that the aggravating
factors
outweighed the personal circumstances of the appellant.
[4]
The cardinal rule when dealing with
appeals was that sentence imposed by a trial court should not be
interfered with unless it can
be shown that there was a material
misdirection on the part of such court. In this instance the
appellant was further charged with
an offence for which a minimum
sentence of life imprisonment was prescribed by the legislature under
Act 105 of 1997. Unless substantial
and compelling circumstances were
found to be present, the prescribed sentence had to be imposed
[5]
As I see it, the entire grounds of
appeal boil down to a contention that the trial court, should have
had regard to the cumulative
effect of all the factors advanced on
behalf of the appellant before making a finding that no substantial
and compelling circumstances
were present justifying a lesser
sentence.
[6]
The appellant was represented at trial.
He testified in mitigation that he was 26 years old, a first offender
and was not married.
He was the father of a six year old girl and was
responsible for her maintenance in the amount of R200.00 per month.
He had gone
up to matric and was employed as a gardener earning a
wage of R950.00 per month. He had been awaiting trial since 1
December 2008.
[7]
The introductory remarks of the learned
magistrate indicate that he was conscious of the factors to be
considered in sentencing
including what was trite law, being the
triad. At page 43 paragraph 3 he stated the correct approach to be
adopted by our courts
in determining substantial and compelling
circumstances. It was not only to be the cumulative effect of factors
favouring an accused
person with regard to the merits and in
mitigation but also those facts which did not favour the appellant as
confirmed in S v
Vermeulen
2004 (2) SACR 174
(SCA) at 180 para 22.
[8]
He did a further comparative analyses of
cases where the rape of children below the age of 16 years came
before our courts, in S
v Abrams
2002 (1) SACR 116
(SCA); S v
Mahomotsa
2002 (2) SACR 435
(SCA); Rammoko v Directors of Public
Prosecutions
2003 (1) SACR 200
(SCA) and S v Vilakazi
2009 (1) SACR
552
(SCA). He considered the reasons why sentences were either
increased or set aside and remitted to the trial court for
reconsideration
of sentence. He gave reasons why this was a different
case by stating the following:
On
page 45
Paragraph
2
“
the
heinous crime that you committed was the rape of a two year old
child”
Paragraph
3
“
that
the following is not a substantial and compelling circumstance, an
apparent lack of physical injury to the complainant”
Paragraph
4
“
Your
personal circumstances, the fact that you are 26 with no previous
convictions, the fact that you have been in custody since
1 December
2008 are mitigating factors, that is so, but taking the facts of this
case into consideration that you raped a two year
old and showed no
remorse whatsoever
Paragraph
6 continuing to page 46
“
.....
you said Mrs Rooi said she saw you with her child of two years, she
is
telling
lies. You said you do not know how the DNA of yours is found in the
vagina of a two year old. A person who admits his guilt
and asks for
forgiveness is a person that can be rehabilitated. I do not see that
in you.
[9]
I do not agree with the submission for
the appellant that the magistrate felt duty bound to impose life
imprisonment or that he
sought ‘exceptional’
circumstances to be present in order to find that substantial and
compelling circumstances were
present. The learned magistrate did
comment about the lack of a victim assessment report for the two year
old, which could have
shed better light on the effect of the attack
on her. The first court of appeal called for such report and referred
the appeal
to a full bench.
[10]
Since the determination of whether or
not substantial and compelling circumstances are present, entails the
exercise of a value
judgment by the trial court, a court of appeal is
entitled to revisit the issue and to substitute its own judgment if
it finds
that there was a misdirection on the part of the trial
court,
S v GK
2013 (2)
SACR 505
at 507 and 508 paragraphs 4 and five. At 509 f - h Rogers J
stated,
“
All
the circumstances bearing on the question must be examined to see
whether, as the sentencing court found, there were or were
not
...substantial and compelling circumstances. I take this to mean that
the appellate court can form its
own
view as to the correct answer to that question……….To
allow an appellate court to
make its own
value judgment on appeal provides an accused person with greater
safeguards against the imposition of disproportional
punishment”
[11]
In S v Malgas
2001 (1) SACR 469
(SCA) at
paragraph 22 is stated:
“
The
greater the sense of unease a court feels about the imposition of a
prescribed sentence, the greater its anxiety will be that
it may be
perpetrating an injustice. Once a court reaches the point where
unease has hastened into a conviction that an injustice
will be done,
that can only be because it is satisfied that the circumstances of
the particular case render the prescribed sentence
unjust, or as some
might prefer to put it, disproportionate to the crime, the criminal
and the legitimate needs of society. If
it is the result of a
consideration of circumstances the court is entitled to characterize
them as substantial and compelling and
such as to justify the
imposition of a lesser sentence.”
[12]
The call for a pre-sentencing report to
be compiled by a probation officer is regulated by the Children’s
Act and the Criminal
Procedure Act. The report is required in order
to assist the court in assessing what factors to take into account
when sentencing
of a juvenile, especially when a term of imprisonment
is under consideration. I am of the view that it was not necessary in
the
circumstance to call for one. All the aspects of the appellant’s
personal circumstances could have been engaged in more detail
when he
testified in mitigation. It is however not a foregone conclusion that
more than what was testified to in mitigation and
in the
circumstances of this case could have been revealed.
The
victim assessment report was in my view not very helpful. Probably it
would have assisted to call the mother as a witness during
the trial
to assist the court on the effect the attack had on the child and
family.
[13]
In this instance I am not persuaded that
there was a misdirection by the trial court in considering sentence.
The analyses engaged
by the trial court displayed the need to
consider each case on its own merits. The sentences in the cases
referred to above were
not prescriptive. In this matter I find that
the aggravating circumstances outweigh by far factors to be
considered as substantial
and compelling. The aggravating
circumstances lie in the fact that as at the time of the commission
of the offence the appellant
was no longer a juvenile. He was a 26
year old unmarried man and an employed father of a six year old. The
victim was a two year
old who, in my view, could not have had any
understanding of sexual intercourse,
let
alone the consequences of engaging in such act with an adult person
without protection. The appellant was a friend to the victim’s
uncle and also a neighbour of the family. The appellant was known to
the victim. It is safe to conclude that in the majority of
child rape
cases that come before our courts, the victims are known to the
perpetrators. An element of trust in the older person
often exposes
an unsuspecting child to sexual abuse.
[14]
While a victim impact report would have
been necessary during sentencing, cognizance should be taken of the
fact that because of
her age, her speech and intelligence, she had
not developed to such a degree that she could have been in a position
to give input
and properly articulate the effects of the attack on
her, that is, over and above the contribution of the parent and tests
conducted
on the victim by a psychologist.
I
further have regard to the prevalence of child rape in our society.
It is an evil that deserves utmost attention by our courts
when
considering sentence. Indeed, present all circumstances to be
considered in mitigation, where there is lack of remorse, there
is
often doubt as to the prospect of rehabilitation. In view of the
seriousness of the offence, the interests of society and the
victim,
I am not inclined to interfere with the sentence of the trial court.
[15]
In the circumstances I give the
following order:
1.
The appeal is dismissed.
TLHAPI
V.V
(JUDGE
OF THE HIGH COURT)
I
agree,
PRETORIUS
C
(JUDGE
OF THE HIGH COURT)
I
agree,
BAM
A. J
(JUDGE
OF THE HIGH COURT)