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Liau v S (A101/2013) [2013] ZAGPPHC 282 (2 October 2013)

78 Reportability
Criminal Law
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Brief Summary

Criminal Law — Rape — Appeal against sentence of life imprisonment — Appellant convicted of raping a 14-year-old girl — Original sentence imposed without consideration of minimum sentencing provisions — Appellant's claim of unfair trial due to lack of notification regarding potential life sentence — Court finds that while initial trial was fair, subsequent sentencing under minimum sentencing provisions was not — Sentence of life imprisonment set aside and replaced with 25 years imprisonment as appropriate in the circumstances.

Comprehensive Summary

Summary of Judgment


1. Introduction


This matter concerned an appeal against sentence in the North Gauteng High Court, Pretoria. The appellant, Pule Liau, appealed against a sentence of life imprisonment imposed for one count of rape. The respondent was the State.


The procedural history was unusually protracted. The appellant was convicted in the South-Transvaal Regional Court, Klerksdorp on 29 August 2001 for the rape of a 14-year-old girl, committed with a co-accused on 23 January 2001. The regional court sentenced him to 15 years’ imprisonment. On appeal in 2003, the appeal was removed from the roll and the regional court sentence was set aside, with an order that the proceedings be stopped and the accused be referred to the High Court for sentencing in terms of the minimum sentence legislation. The matter then came before Shongwe J on 30 March 2004, when the appellant was sentenced to life imprisonment under the minimum sentencing regime.


An application for leave to appeal that life sentence was dismissed in 2008, but the Supreme Court of Appeal subsequently granted leave to appeal on 9 March 2012. The present judgment dealt with that appeal and, in particular, with the question whether the life sentence could stand in light of the manner in which the minimum sentence regime had been introduced into the case.


The general subject-matter of the dispute was the intersection between fair-trial requirements and the imposition of a minimum sentence (life imprisonment) under the Criminal Law Amendment Act 105 of 1997, as well as what sentence was appropriate once the minimum sentence process was found to be procedurally defective.


2. Material Facts


It was common cause between the parties that, at the time of the original trial in the regional court, the appellant was not informed that the alleged offence fell within the ambit of the minimum sentence legislation, and that upon conviction he could be sentenced to life imprisonment.


The regional court’s own sentencing remarks indicated that it did not sentence the appellant in terms of section 51(1) of the Criminal Law Amendment Act 105 of 1997. Instead, the regional court expressly conveyed that the State had chosen the regional court as the forum in which the appellant would be tried and sentenced, and it proceeded to impose 15 years’ imprisonment.


The difficulty arose later when, on appeal in 2003, the earlier appeal court order resulted in the setting aside of the 15-year sentence and referral to the High Court for sentencing under the minimum sentence framework, culminating in the imposition of life imprisonment by Shongwe J in 2004.


For purposes of determining an appropriate sentence afresh, the court summarised the circumstances of the offence. The complainant lived with her mother and uncle in Extension 16, Khuma. On the evening of 23 January 2001, she was alone at home when she heard people entering the house and found the appellant and his co-accused (Mncedisi) in the kitchen playing music. Mncedisi was known to her as a friend of her uncle; the appellant was not known to her. After establishing that the complainant’s mother and uncle were not at home, Mncedisi dragged the complainant to her room and threw her on the bed. The appellant followed them. After Mncedisi removed the complainant’s underwear, the appellant held her feet while Mncedisi raped her as she cried. The appellant then raped the complainant as well, closing her mouth and telling her to keep quiet. Both men thereafter ran away. The complainant remained alone in the house until the next morning because she was too scared to leave.


The appellant’s personal circumstances, as recorded by the court, were that he was 32 years old at the time of the incident, married with two children, employed at the time, and a first offender.


In the sentencing proceedings before Shongwe J, the State presented a social worker’s report dated 29 March 2004 describing the impact of the rape on the complainant. The report described significant psychological and social consequences, including ridicule by peers leading her to leave school, emotional distress, frequent crying, nightmares, and a persistent fear of sleeping alone or in the dark, as well as an asserted change in personality. The report evaluated the complainant as significantly traumatised, and referred to her young age at the time of the rape as itself intensifying the trauma.


3. Legal Issues


The central legal question was whether the appellant’s life sentence could stand given that it was common cause he had not been informed during the original proceedings that the offence attracted the minimum sentence regime and a potential life sentence. This was treated as a question concerning the fairness of the proceedings and the permissibility of imposing a minimum sentence in those circumstances.


A further legal issue, arising once the respondent conceded that the life sentence should be set aside, was what sentence the High Court should impose afresh on the appellant for the rape conviction. This involved the application of sentencing principles to the established facts, including an evaluative assessment of aggravating and mitigating factors, and a value judgment about proportionality and the purposes of punishment.


4. Court’s Reasoning


On the fair-trial ground, the court reasoned from the common cause fact that the appellant had not been informed that the minimum sentencing legislation applied and that life imprisonment could follow upon conviction. The court distinguished between the original regional court proceedings and what followed thereafter. It held that the regional court did not sentence the appellant under section 51(1) of the Criminal Law Amendment Act 105 of 1997; the regional court imposed 15 years’ imprisonment and expressly indicated that the State had chosen the regional court as the sentencing forum. In that setting, the court concluded the appellant did have a fair trial in the regional court.


However, the court found that the problem arose when the earlier appeal court directed that the appellant be sentenced in terms of the minimum sentence provisions, leading to the High Court sentencing of life imprisonment. In that sense—namely, in relation to the imposition of life imprisonment under the minimum sentence framework without prior notice—the appellant did not have a fair trial.


The respondent’s counsel conceded that, in these circumstances, the life sentence should be set aside and that the court should consider sentence anew. The court accepted this concession and proceeded to determine an appropriate sentence on the established facts.


In addressing the appropriate sentence, the court considered the appellant’s submission that the rape was not among the “most serious” cases because no weapon or physical violence was used and no injuries were sustained. The court rejected this approach, relying on the principle, reinforced by the cited authority, that rape is inherently a violent and traumatic violation even absent additional physical assault. The court emphasised that the absence of physical injury does not diminish the gravity of rape, and that psychological harm may be profound and enduring.


Applying these principles to the facts, the court placed weight on the complainant’s age (a minor at the time), the circumstances of the attack (being alone at home, overpowered by two men, raped twice, and silenced during the second rape), and the consequences recorded in the social worker’s report, including the complainant’s ongoing trauma and social disruption. The court treated the complainant as having been at a formative stage of life and described the offence as a severe intrusion with lasting consequences.


The court also assessed the appellant’s personal circumstances. While acknowledging that these factors must receive due weight, the court noted that the appellant did not testify in mitigation of sentence and placed no evidence about his psychological functioning or background before the sentencing court, leaving his motivations unclear. The court further regarded the appellant’s marital status as aggravating rather than mitigating, reasoning that a married man should be expected to treat women with respect, and that being a father to two children aggravated the moral blameworthiness of raping a 14-year-old girl. The court also found that the appellant had shown no remorse, and considered remorse important for prospects of rehabilitation.


Notwithstanding these aggravating features, the court considered whether the appellant was a person who should be removed from society permanently and whether life imprisonment was the only appropriate option. It concluded that life imprisonment was not the only appropriate sentence, taking into account that the appellant was a first offender at age 32 and that a lengthy term of imprisonment might still allow for some prospect of rehabilitation through developing insight into the seriousness of the crime.


Balancing these considerations, the court held that a sentence of 25 years’ imprisonment was appropriate in the circumstances and made an order to antedate the sentence to the date on which the life sentence had been imposed.


5. Outcome and Relief


The appeal against sentence was upheld. The sentence of life imprisonment imposed in terms of section 51(1) of the Criminal Law Amendment Act 105 of 1997 was set aside and substituted with a sentence of 25 years’ imprisonment.


The substituted sentence was antedated in terms of section 282 of the Criminal Procedure Act 51 of 1977 to 30 March 2004. The judgment does not record a separate costs order.


Cases Cited


Mudau v The State (764/12) [2012] ZASCA 56 (9 May 2013)


Legislation Cited


Criminal Law Amendment Act 105 of 1997 (sections 51(1) and 52(1) as referenced in the procedural history)


Criminal Procedure Act 51 of 1977 (section 282)


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The court held that, although the appellant had a fair trial in the regional court (which did not sentence him under the minimum sentence legislation), the later imposition of life imprisonment under the minimum sentence regime occurred in circumstances where it was common cause that the appellant had not been informed that the minimum sentence legislation applied and that he faced the possibility of life imprisonment. In that sense, the proceedings culminating in the life sentence were not fair, and the life sentence could not stand.


The court further held that an appropriate sentence, determined afresh on the accepted facts and the recorded mitigating and aggravating considerations, was 25 years’ imprisonment, antedated to 30 March 2004.


LEGAL PRINCIPLES


A sentence of life imprisonment under the minimum sentence legislation may not stand where the accused was not informed that the legislation applied and that life imprisonment was a potential sentencing outcome, because this implicates the accused’s right to a fair trial in relation to sentencing exposure.


In determining sentence for rape, the absence of weapons, additional physical violence, or physical injuries does not in itself justify treating the offence as insufficiently serious; rape is inherently a violent and traumatic violation, and psychological harm may be severe and long-lasting and is materially relevant to sentence.


Sentencing requires a fact-sensitive evaluation balancing the seriousness of the offence and its impact on the complainant against the offender’s personal circumstances and prospects of rehabilitation, including consideration of remorse and whether a lengthy determinate sentence may be appropriate even where the statutory framework would otherwise contemplate severe punishment.

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[2013] ZAGPPHC 282
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Liau v S (A101/2013) [2013] ZAGPPHC 282 (2 October 2013)

NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Case
number: A101/2013
DATE:02/10/2013
In
the matter between : -
PULE
LIAU
.............................................................................
Appellant
and
THE
STATE
............................................................................
Respondent
JUDGMENT
JANSE
VAN NIEUWENHUIZEN AJ
[1]
The appellant appeals against the sentence of life imprisonment
imposed by Shongwe J (as he then was) on 30 March 2004 in respect
of
one count of rape. The appellant was granted leave to appeal the
sentence by the Supreme Court of Appeal on 9 March 2012.
BACKGROUND
[2]
The appeal has a long history and emanates from the conviction and
sentence of the appellant in the South-Transvaal Regional
Court,
Klerksdorp on 29 August 2001, some 12 years ago.
[3]
The appellant was convicted of the rape of a 14 year old girl, which
offence was committed with his co-accused on 23 January
2001 in
Khuma. The appellant was sentenced to 15 years imprisonment in the
court a quo.
[4]
The matter came on appeal before the Honourable Justices Du Plessis J
and Goodey AJ on 17 October 2003, who made the following
order:
"1.
Dat die appel hierby van die rol geskrap word.
2.
Dat die vonnis wat die streekhof opgele het word tersyde gestel en
vervang met die voigende bevel: 'Ingevolge Artikel 52(1) van
Wet 105
van 1997 word die verrigtinge gestaak en word die beskuldigde verwys
na die Hooggeregshof wat regsbevoegdheid het vir vonnis
soos beoog in
Artikel 5(1) (sic) van die gemelde Wet."
[1]
The matter, accordingly, came before Shongwe J in the Local Division
of the Western Circuit District held at Klerksdorp on 30
March 2004
and the sentence of life imprisonment in terms of the provisions of
section 51 (1) of the Criminal Law Amendment Act,
Act 105 of 1997
("the Act") was imposed on the appellant, Shongwe J having
held that no substantial and compelling circumstances
to impose a
lesser sentence existed.
[2]
The appellant applied for leave to appeal the sentence, which
application was dismissed by Hartzenberg J on 8 May 2008.
[3]
The appellant was thereafter granted leave to appeal his sentence by
the Supreme Court of Appeal as averred to supra.
GROUND
FOR APPEAL: FAIR TRIAL?
[4]
The appellant's appeal is based on the allegation that he did not
have a fair trial.
[5]
it is common cause between the parties that the appellant was not
informed of the fact that the commission of the offence falls
within
the ambit of the Act and that he, upon conviction, may be sentenced
to life imprisonment.
[10]
The court a quo, however, did not sentence the appellant in terms of
the provisions of section 51 (1) of the Act. This much
is clear from
the following extract from the court a quo's judgment:
"Die
wetgewer het ook die wet op minimum vonnisse op die wetboek geplaas
en dit is ook aanduidend van die erns waarin die wetgewer
hierdie
misdryf sien. ingevolge hierdie wet word daar bepaal dat indien V?
persoon ’n ander persoon verkrag wat onder die
ouderdom van 16
jaar oud is; is die hot verpiig in sulke gevaiie om die saak te
verwys na die hooggeregshof vir vonnis aangesien
sulke mense
kwalifiseer vir iewensiange gevangenisstraf. U kan u dus self
geiukkig ag dat u hier in die streekhof tereg staan op
hierdie
klagte. Die staat het besluit hierdie is die korrekte forum waarin u
aangekla behoort te word en dit is dan waarin u ook
gevonnis gaan
word vandag."
[11]
The court a quo proceeded to impose a sentence of 15 years
imprisonment. In the circumstances, the appellant did have a fair

trial in the court a quo.
[12]
The problem arose with the court of appeal’s finding that the
appellant had to be sentenced in terms of the provisions
of section
51 (1) of the Act.
[13]
In this sense, the appellant did not have a fair trial.
[14]
Mr Wilsenach, counsel for the respondent, conceded that the sentence
should in the circumstances be set aside and that this
court should
consider an appropriate sentence afresh.
APPROPRIATE
SENTENCE:
[15]
The facts giving rise to the appellant’s conviction, may be
summarised as follows:
i)
the complainant lived with her mother and uncle in Extention 16,
Khuma;
ii)
on the evening of 23 January 2001, the complainant was alone at home.
She was in her room when she heard people entering the
house;
iii)
upon examination, she found the appellant and his co-accused in the
court a quo, a certain Mncedisi, playing music on a cassette
player
in the kitchen;
iv)
the accused knew Mncedisi as he was a friend of her uncle, but the
appellant was not known to her;
v)
after Mncedisi established that the complainant's mother and uncle
were not at home, her dragged her to her room and threw her
on the
bed;
i)
the appellant followed them and after Mncedisi removed the
complainant's underwear, he held her feet whilst Mncedisi raped her.

The complainant was crying during the rape;
ii)
the complainant was thereafter raped by the appellant. He closed her
mouth during the rape and told her to keep quiet;
iii)
after the double rape, Mncedisi and the appellant ran away;
iv)
the complainant was scared to leave the house and remained alone in
the house until the next morning.
[14]
The personal circumstances of the appellant are as follows:
i)
he was 32 years of age at the time of the incident;
ii)
he is married and has two children;
iii)
he worked at the time;
iv)
he is a first offender.
[15]
During the sentencing proceedings in front of Shongwe J, the State
submitted a report by a social worker in respect of the
impact the
rape had on the complainant. The report is dated 29 March 2004 and
was compiled more than three years after the incident.
[16]
The report is, to say the least, heartrending. Ms van Biljon, a
senior social
worker,
reports that the complainant was ridiculed by her peers to such an
extent
that she decided to leave school. The complainant's mother reported
that the complainant was emotional after the rape and
that she cried
a lot. For a long period subsequent to the rape, she did not want to
sleep alone and had nightmares. She did not
want to sleep in the dark
and still insists that the lights must be on when she sleeps.
According to the complainant's mother,
she had undergone a total
change of personality.
[17]
Under the heading evaluation, Ms van Biljon, states the following:
"Die
hof het hier te make met 'n vyftien jarige dogter wat in 'n groot
mate getraumatiseerd is deur die gebeure. Haar lewe
is in 'n ernstige
mate beinvloed deur die verkragting. Die feit dat sy ten tye van die
verkragting slegs twaalf jaar oud was is
opsigself baie traumaties
omdat sy van haar kinder lewe ontneem is."
[18]
Ms Augustyn, counsel for the appellant, submitted that no weapon or
violence was used during the rape nor did the complainant
suffer any
injuries. Accordingly, the matter in casu does not fall under the
"most serious'1 cases for which the maximum sentences
are
reserved. I do not agree.
[19]
Mr Wilsenach referred to the unreported matter of Mudau v The State
(764/12)
[2012] ZASCA 56
(9 May 2013), in which Majiedt JA held as
follows at par [17]:
"It
is necessary to reiterate a few self-evident realities. First, rape
is undeniably a degrading, humiliating and brutal invasion
of a
person's most intimate, private space. The very act itself, even
absent any accompanying violent assault inflicted by the
perpetrator,
is a violent and traumatic infringement of a person's fundamental
right to be free from all forms of violence and
not to be treated in
a cruel, inhumane or degrading way. …"
[20]
The perception that only physical injuries will suffice to elevate a
rape to be "most serious", is misplaced. The
report of the
social worker deals with the psychological damage the complainant has
suffered as a result of the rape. Whilst physical
injuries heal,
psychological damage may take years to overcome.
[21]
In casu the complainant stood on the brink of womanhood with all the
possibilities of becoming a self assured woman in own
right. She
still had the prospect of finding love, getting married and having a
family of her own. This was summarily taken away
by the appellant's
cruel invasion of what is most sacred at her age, her blossoming
womanhood.
[22]
I am mindful that the appellant's personal circumstances should be
given due weight in considering an appropriate sentence.
The
appellant, however, elected not to testify in mitigation of sentence
and did not place any evidence pertaining to his psychological

functioning or background before the court a quo. In the premises, it
is not clear what motivated the appellant to perpetrate the
crime of
rape.
[23]
The fact that the appellant is married is, to my mind, an aggravating
factor. One would especially expect a married man to
treat woman with
the respect they deserve. It is not clear whether the appellant has
boys or girls, but for the father of two children
to rape a 14 year
old girl likewise constitutes, in my view, aggravating circumstances.
[24]
The appellant has, furthermore, shown no remorse, whatsoever. In my
view, the first step to rehabilitation, is insight in the
nature of
the crime committed. If a person convicted of rape, does not
appreciate the grave injustice visited upon his victim,

rehabilitation seems a remote if not impossible outcome. Persons
convicted of rape should learn to have respect for women and
children. If the physical and emotional integrity of women and
children are not respected, the prevalence of rape in our society

will not abate.
[25]
The question remains whether the appellant is a person who should be
removed from society. Is the imposition of lifelong imprisonment
the
only sentencing option in the circumstances? I think not. The
appellant was a first offender at the age of 32 and I may not

discount the possibility that an appropriate term of imprisonment
might result in the appellant gaining some insight in the atrocious

nature of the crime committed by him.
[26]
Having regard to all the factors mentioned supra, I am of the view
that a sentence of 25 years imprisonment will be appropriate
in the
circumstances.
ORDER:
1.
The appeal on sentence is upheld.
2.
The sentence of life imprisonment imposed in terms of section 51 (1)
of the Criminal Law Amendment Act, Act 105 of 1997 is set
aside and
substituted with the following:
"The
accused is sentenced to 25 years imprisonment,which is antedated in
terms of Section 282 of the Criminal Act 51 of 1977,
to 30 March
2004”.
N
Janse van Nieuwenhuizen
Acting
Judge of the North Gauteng High Court.
I
agree.
Makhafola
J
Judge
of the North Gauteng High Court.
I
agree.
Fourie
J
Judge
of the North Gauteng High Court.

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