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[2013] ZAGPPHC 146
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Basi v S (A682/2011) [2013] ZAGPPHC 146 (31 May 2013)
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE NO: A682/2011
DATE:31/05/2013
In
the matter between:
JACOB
BASI
…...........................................................................................
APPELLANT
and
THE
STATE
..................................................................................................
RESPONDENT
JUDGMENT
DOSIO, AJ
[1]
The appellant was arraigned in the Potchefstroom Regional Court on a
count of contravening the provisions of section 3 of the
Criminal Law
Amendment Act 32 of 2007 (Sexual Offences and Related Matters Act)
read with the provisions of section 51 (1) and
Part 1 of Schedule II
of the
Criminal Law Amendment Act, 105 of 1997
.
[2]
The appellant pleaded guilty and he was sentenced to (20) twenty
years imprisonment.
[3]
The court a quo refused leave to appeal in regard to sentence.
[4]
Leave to appeal in regard to sentence was subsequently granted by the
High Court, after a petition was lodged in terms of
section 309C
of
the
Criminal Procedure Act 51 of 1977
.
[5]
The appellant was legally represented throughout the proceedings in
the court a quo.
AD
SENTENCE
[6]
It is trite law that in an appeal against sentence, the court of
appeal should be guided by the principle that punishment is
pre-eminently a matter for the discretion of the trial court and the
court of appeal should be careful not to erode that discretion.
[7]
A sentence imposed by a lower court should only be altered if:
i.
An irregularity took place during the trial or sentencing stage.
ii.
The trial court misdirected itself in respect of the imposition of
the sentence.
iii.
The sentence imposed by the trial court could be described as
disturbingly or shockingly inappropriate.
1
[8]
In the case of S v Pillav
1977 (4) SA 531
(A) at p 535 E-G, the court
held that;
"...the
essential inquiry in an appeal against sentence, however, is not
whether the sentence was right or wrong; but whether
the court in
imposing it exercised its discretion properly and judicially, a mere
misdirection is not by itself sufficient to entitle
the Appeal Court
to interfere with the sentence; it must be of such a nature, degree,
or seriousness that it shows, directly or
inferentially, that the
court did not exercise its discretion at all or exercised it
improperly or unreasonably."
[9]
Section 51
of the
Criminal Law Amendment Act 105 of 1997
, stipulates
that for
part 1
of schedule 2 offences, which includes rape of a
child below the age of (16) sixteen years, the court shall impose
life imprisonment
unless it is satisfied that substantial and
compelling circumstances exist which justify the imposition of a
lesser sentence.
[10]
The court a quo found substantial and compelling circumstances
present to depart from imposing the minimum prescribed sentence
of
life imprisonment.
[11]
However, the court a quo was laconic in its reasons as to why it had
reached this decision, and also why it had imposed (20)
twenty years
imprisonment.
[12]
At page 16 of the court record at line 7-11 the court a quo stated:
"Therefore,
this court will be lenient by not imposing the minimum sentence
because in these types of offences as i have already
indicated this
court is supposed to send you to a life imprisonment."
AND
UNDER THE CIRCUMSTANCES YOU ARE SENTENCED TO 20 YEARS IMPRISONMENT
[13]
In the case of S v Mofokeng and another
1999 (1) SACR 502
(W) at p
523, Judge Stegman stated that;
"for
substantial and compelling circumstances to be found, the facts of
the particular case must present some circumstance
that is so
exceptional in its nature, and that so obviously exposes the
injustice of the statutorily prescribed sentence in the
particular
case, that it can rightly be described as 'compelling' the conclusion
that the imposition of a lesser sentence that
that prescribed by
Parliament is justified"
[14]
Counsel for the appellant argued that the court a quo misdirected
itself in that it omitted to adequately take into consideration
all
the appellants personal circumstances and that a term of (20) twenty
years imprisonment was disproportionate to the offence
of rape, the
appellant and society. These personal factors were;
i.
That he was (44) forty years old, and customarily married.
ii.
That he successfully completed grade 11 and was the primary bread
winner maintaining his wife and three children
iii.
That he was gainfully employed by the South African National Defence
Force.
iv.
That he was under the influence of alcohol during the commission of
the offence.
v.
That he had offered to make a contribution to the medical expenses of
the complainant.
[15]
Counsel argued further that the court a quo made no reference in its
judgment to any comparable decisions on similar offences.
[16]
It is clear from some of the Supreme Court of Appeal decisions/that
in similar instances, the court has departed from imposing
life
imprisonment and has imposed lesser sentences.
[17]
This court refers to the case of S v Vilakazi
2009 (1) SACR 552
(SCA), where a 30 year old first offender who had been convicted on
two counts of rape of a complainant with an estimated age of
14 and
15 years and on whom life imprisonment had been conferred, that such
sentence was set aside by the Supreme Court of Appeal
and substituted
with a sentence of (15) fifteen years imprisonment.
[18]
In the unreported decision of Ndou v S (93/12) [20121 ZASCA 148 (28
September
2012),
a 46 year old offender who had been convicted of raping his (15)
fifteen year old step daughter, and on whom life imprisonment
had
been conferred, such sentence was over-turned by the Supreme Court of
Appeal and substituted with (15) fifteen years imprisonment.
[19]
Although the court a quo did not impose life imprisonment, the
abovementioned cases are relevant to illustrate what term of
imprisonment is appropriate in similar situations. It is important to
distinguish that in the above mentioned cases, a trial ensued,
whereas, in the facts before this court, the appellant pleaded
guilty.
[20]
Counsel for the appellant stated that the court o quo misdirected
itself in the following respects;
i.
In finding that the appellant, although he had previous convictions
older than (10) years and accordingly considered as a first
offender,
that he was still a violent person.
ii.
In finding that the appellant had not been remorseful, despite that
such remorsefulness was alluded to in his plea explanation
and during
the counsel's summations in respect to mitigation.
iii.
In taking into account as aggravating factors, that the complainant
had sustained 'emotional and psychological scars', in the
absence of
such evidence being accurately quantified and placed before the
court.
[21]
Counsel for the respondent submitted that rape is a serious crime,
constituting a humiliating, degrading and brutal invasion
of the
privacy, dignity and person of the victim.
2
Rape
is a crime that threatens every woman and particularly the poor and
the vulnerable. In this country it occurs far too frequently
and is
currently aggravated by the grave risk of the transmission of Aids.
The Legislature and community at large, correctly expects
our courts
to punish rapists severely.
3
[22]
Counsel for the respondent argued that the court a quo did not act
unreasonably in imposing a sentence of twenty years imprisonment.
The
sentence was not shockingly inappropriate in light of the following
aggravating circumstances, namely;
i.
The appellant was old enough to be the father of the victim.
ii.
The appellant was under the influence of intoxicating liquor.
iii.
The offences of rape against woman and children are rife.
iv.
The fact that the appellant pleaded guilty, does not necessarily mean
that he was remorseful, for he may have been aware of
the
overwhelming evidence against him.
v.
The victim will be scared for life.
vi.
The appellant had three previous convictions of assault with intent
to do grievous bodily harm.
Vii.
The complainant sustained bruises to her neck.
[23]
This court is not satisfied that the court a quo, once it had found
that substantial and compelling circumstances existed,
considered the
number of years of imprisonment to be imposed, in a judicial manner.
The court failed to enquire into the proportionality
between the
offence and the period of imprisonment to be imposed.
[24]
In the case of S v Maake 2011 (1) SACR SCA 263 at page 268 paragraph
19 it was stated;
"It
is not only a salutary practice, but obligatory for judicial officers
to provide reasons to substantiate conclusions. The
magistrate did
not do so in respect of the minimum sentence imposed by him."
Further
at page 269 pararaph 20;
"When
a matter is taken on appeala court of appeal has a similar interest
in knowing why a judicial officer who heard a matter
made the order
which it did. Broader considerations come into play. It is in the
interests of the open and proper administration
of justice that
courts state publicly the reasons for their decisions. A statement of
reasons gives some assurance that the court
gave due consideration to
the matter and did not act arbitrarily. This is important in the
maintenance of public confidence in
the administration of justice."
[25]
Had the court a quo had insight into decided cases of the Supreme
Court of Appeal, possibly a lesser term of imprisonment would
have
been imposed.
[26]
The sentence imposed by the court a quo of twenty years is not
justified and the appeal on sentence should succeed.
[27]
In the result, having considered all the relevant factors and the
purpose of punishment I consider (15) years imprisonment
to be an
appropriate sentence.
[28]
I make the following order:
1.
The appeal is upheld
2.
The sentence of the court a quo is set aside and is replaced with the
following: The accused is sentenced to (15) fifteen years
imprisonment'. This sentence is antedated to 28 September 2010.
D.
DOSIO
ACTING
JUDGE OF THE HIGH COURT
I
concur
E.M.
MAKGW
JUDGE
OF THE HIGH COURT
APPEARANCES:
Date
heard: 31 May 2013
Judgment
handed down: 31 May 2013
On
behalf of the appellant: Adv J C Erasmus
On
behalf of the respondent: Adv. H I Lebelo
Instructed
by:
DIRECTOR
OF PUBLIC PROSECUTIONS
Presidential
Building 28 Church Square PRETORIA
1
S
v Rabie
1975 (4) SA 855
(A)
2
See
S v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
SCA at 5b, and S v Swartz and another
1999 (2) SACR ( C) at 385 c
3
See
S v Nchenche
[2005] ZAGPHC 21
;
2005 (2) SACR 386
(W)