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[2014] ZAFSHC 198
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G v S (A104/2014) [2014] ZAFSHC 198 (30 October 2014)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A104/2014
In
the appeal of:
J[…]
D[…]
G[…]
.......................................................................................................................
Appellant
and
THE
STATE
...........................................................................................................................
Respondent
CORAM:
RAMPAI, AJP et MURRAY, AJ
HEARD
ON: 13 OCTOBER 2014
JUDGMENT
BY: MURRAY, AJ
DELIVERED
ON: 30 OCTOBER 2014
[1]
This is an appeal against the sentences imposed on the Appellant by
the Regional Court, Kroonstad, on 15 August 2013. The Appellant
was
convicted of two counts of rape, and sentenced to life imprisonment
on both counts. The sentences were ordered to run concurrently.
[2]
The convictions on 15 August 2013 followed on the Appellant’s
pleas of guilty on both counts in terms of section 112(2)
of the
Criminal Procedure Act, Act 51 of 1977. On Count 1 he was convicted
of the rape of an 11 year old girl ‘
on
more than one occasion’
between
29 August 2011 and 19 October 2011. On Count 2 he was convicted of
the rape of a 15 year old girl on 29 October 2011.
[3]
The Appellant did not testify before sentencing but in argument the
following factors were submitted in mitigation and taken
into account
by the court:
1)
that the Appellant was 27 years old;
2)
that he is married with two children aged 6 and 4 years old;
3)
that his wife was unemployed but that his parents maintained her and
his children;
4)
that the Appellant had had no formal schooling;
5)
that he owned a hair salon from which he earned an income of R3 000
per month;
6)
that he pleaded guilty and saved both girls the trauma of having to
testify in court;
7)
that he was a first offender; and
8)
that he had been awaiting trial for approximately 21 months.
[4]
As aggravating circumstances the Court
a quo
took into
consideration:
1)
that the Appellant had been in a relationship with the 11 year old
girl’s mother when the incidents of rape occurred;
2)
that he was therefore in a position of trust regarding the child and
should have guided and protected her, but instead waited
until the
mother was gone to rape her;
3)
that the 15-year old was a
bona fide
customer who came to his shop to pay an account;
4)
that instead of delivering the service he was supposed to, he grabbed
her, pinned her down and raped her;
5)
that the Appellant had no respect for the bodies of women or
children; 6) that children were no longer safe in their own
homes.
[5]
In considering appropriate sentences the court
a
quo
also took into consideration the
epidemic proportion of and escalation in crimes against children,
especially rape, in its area
of jurisdiction. The court
recognised the need to protect the women and children of that
community so that they may be safe
in their own homes and streets
without simply being grabbed and raped. The court also
recognised the need to impose
sentences that would serve as a
deterrent to the accused as well as to other potential perpetrators;
that would restore the trust
of the community in the judicial system;
and that would prevent communities from taking the law into their own
hands.
[6]
The approach which a court of appeal should adopt in assessing the
presence or absence of substantial and compelling circumstances
was
identified by Bosielo J in
S
v PB
[1]
.
At para [20] the judge held that a proper enquiry on appeal should
focus on whether the facts which the sentencing
court had considered,
had been substantial and compelling or not.
[7]
In the present case the court
a quo
singled out two of the mitigating
factors which, had they been of sufficient weight, might conceivably
have tipped the scale
towards a finding that substantial and
compelling circumstances did exist and could justify a lesser
sentence than the minimum,
namely the Appellant’s guilty plea
and his long incarceration.
[8]
The court
a
quo
rejected
the notion that the plea of guilty in the present instance could have
been a sign of remorse. It stated, first of
all, that there was
sufficient incriminating evidence to leave the Appellant no other
choice than to plead guilty, and to render
a plea of not guilty “
an
exercise in futility”.
In
S
v Mashinini
[2]
,
for instance, a submission that the Appellants’ plea of guilty
could indicate remorse was rejected by Mhlantla JA since,
on the
evidence before the court, the Applicant had no choice but to plead
guilty.
[9]
In the present case the court did not detail the incriminating
evidence, except to refer to the fact that the Appellant was
caught
in the act by police while he was raping the 15 year old girl, which
pertained to Count 2. It did not specify the incriminating
evidence
regarding Count 1. But, it is clear from the record that
both complainants were present and ready to testify.
The
11 year old girl was the daughter of the Appellant’s
girl-friend and would therefore know the Appellant well and would
undoubtedly have been able to identify him as the rapist and to
incriminate him.
[10]
I therefore find no reason to regard the court’s failure to
identify the incriminating evidence regarding Count 1 as
a material
misdirection since his finding of a lack of remorse did not rely only
on this one ground alone. Similarly the finding
that both crimes were
committed on the same day, does not constitute a material error.
[11]
The court
a quo
also
took into consideration that the Appellant chose not to testify in
mitigation, which, although he has the right not to do so,
left only
the attorney’s averment that he was remorseful on record. In
the
Mashinini
case,
as in the present one, the Appellants
did not verbalise any remorse. Since the presence or absence of
remorse is a question of fact,
the Appellant’s failure to
testify either during the trial or before sentencing, would make it
very difficult for the court
to determine whether the Appellant’s
guilty plea signified true remorse which would carry weight in
mitigation or mere regret
which would not.
[12]
In
S
v Matyityi
Ponnan JA referred to “
a
chasm"
between
regret, that is, feeling sorry for oneself because of having been
caught, and remorse, which is genuine contrition for the
plight of
another. Ponnan JA stated that in order for remorse to be a valid
consideration, the penitence must be sincere and the
accused must
take the court fully into his confidence. Until that
happens the genuineness of the contrition alleged
to exist cannot be
determined.
[3]
[13]
In
Director
of Public Prosecutions, North Gauteng, Pretoria, v Thusi and
Others
[4]
the following passage from
S
v Matyityi
was
quoted:
“
After
all, before a court can find that an accused person is genuinely
remorseful, it needs to have a proper appreciation of,
inter
alia,
what motivated the accused to
commit the deed, what has since provoked his or her change of heart;
and whether he or she does indeed
have a true appreciation of the
consequences of those actions.”
[14]
The Appellant in the present case pleaded guilty in a written
statement submitted by his attorney. Nowhere in that statement
did he express or even mention any remorse for his deeds. He
did not testify, either during the trial or in mitigation before
sentencing. In
S
v Khumalo
[5]
it was found that fairness requires that for purposes of
determining an appropriate sentence, evidence under oath would carry
more weight than a legal representative’s submissions from the
bar.
[15]
The court
a quo
finally
took into consideration, too, that his observation of the Appellant
in the dock, detected no sign of remorse and questioned
the presence
of remorse since the Applicant waited for two years after the rapes
to plead guilty rather than to confess to his
crimes sooner.
In the light of all the abovementioned factors, the court then
found that the plea did not signify remorse.
[16]
In
S
v Furlong
[6]
it was found that, although the accused had pleaded guilty, it was on
the available evidence not possible to discern whether
his guilty
plea could be taken to be a genuine expression of remorse, or whether
it stemmed from “
a
stark realisation on his part that the State had ‘an open and
shut case’ against him, in which event his guilty plea
would be
a neutral factor.”
[17]
In the present case, the guilty plea could, at best for the Appellant
be a neutral factor rather than a valid consideration.
I
therefore agree with the court
a quo
that the guilty plea in the present
case is not a sign of true remorse and cannot be a factor which tips
the scale towards the presence
of substantial and compelling
circumstances which would justify a digression from the prescribed
minimum sentence.
[18]
The other mitigating circumstance that the court
a quo
singled
out for special consideration, was the length of time that the
Appellant had been incarcerated and referred to a recent
decision in
the Supreme Court of Appeal that held that the mere fact that an
accused had been incarcerated for a long time, is
not in itself a
substantial and compelling circumstance.
[19]
In
S
v Malgas
[7]
the court indicated that the only matter that needed to be considered
regarding the length of incarceration, was whether the delay
in
finishing their appeal “
in
and of itself”
justified
a lighter sentence. That court did not find such justification
because the appellants themselves were largely responsible
for the
delay. In the present case, the court
a
quo,
in
my view correctly so, found that even though the delay was not solely
caused by the Appellant, it can to a large extent be blamed
on the
postponements occasioned by his various changes of legal
representatives.
[20]
In and of itself the 21 months which the Appellant spent in
incarceration therefore does not justify a lighter sentence and
the
court
a quo
found
that there were no facts which in isolation or cumulatively with the
other mitigating factors constituted substantive and
compelling
circumstances to justify a digression from the prescribed minimum
sentence. The court
a quo
therefore dismissed this as a factor
which could tip the scale towards the presence of substantial and
compelling circumstances.
[21]
In view, especially, of the Applicant’s repeated rape of the 11
year old girl, as her mother’s boyfriend whom she
should have
been able to trust to guide and protect her, and the similarly
abhorrent attack on an innocent 15 year old customer
who entered his
hair salon with the
bona
fide
intention
to pay an account, I respectfully agree with Van Heerden JA who held
in
S
v D
[8]
:
“…
the
appellant’s conduct was sufficiently reprehensible to fall
within the category of offences calling for a sentence which
would
reflect the Court’s strong disapproval and act as a deterrent
to others minded to satisfy their carnal desires with
helpless
children.”
[22]
A Court in sentencing needs to take into consideration all relevant
factors in such a way that the interests of the community,
the
seriousness of the offence and the personal circumstances of the
Appellant are all properly balanced. (See:
S
v Banda and Another
[9]
). In my view, then,
the court
a
quo
did not overemphasise any of the abovementioned factors to the
detriment of any of the others in imposing, in the absence of
substantial
and compelling circumstances, life sentences in both
instances.
[23]
Since a court of appeal will only interfere with a sentence if the
sentence is shockingly inappropriate and/or if the Court
a
quo
materially misdirected itself or
committed some serious irregularity during sentencing, which in my
view is not the case in the
present matter, I find no reason for this
court to interfere in the sentences imposed on the Appellant in the
circumstances of
this case.
WHEREFORE
the following order is made:
1.
The appeal against the sentences is
dismissed.
2.
The life sentences on both counts are
confirmed.
3.
The sentences are to run concurrently.
______________
H.
MURRAY, AJ
I
concur.
________________
M.H.
RAMPAI, AJP
On
behalf of the Appellant: J D Reyneke
Bloemfontein
Justice Centre
Southern
Life Plaza Building
First
floor, South Wing
41
Charlotte Maxeke Street
BLOEMFONTEIN
On behalf of the
State:
M Strauss
Director
of Public Prosecutions
Ground
floor
Waterfall
Centre
BLOEMFONTEIN
[1]
2013
(2) SACR 533
(SCA) at para [40].
[2]
2012(1)
SACR 604 (SCA) at para [24].
[3]
S
v Matyityi, op cit.
[4]
2012
(1) SACR 423
(SCA) at [21]
[5]
2013(1)
SACR 96 (KZP) at [15].
[6]
2012
(2) SACR 620
(SCA) at [16]
[7]
2013
(2) SACR 343 (SCA)
[8]
1995
(1) SACR 259
(A) at 259g
[9]
1991
(2) SA (BGD 355 (A).