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[2013] ZAFSHC 33
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Lapi and Others v S (A305/2010) [2013] ZAFSHC 33 (21 February 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No.: A305/2010
In the matter between:
EPHRAIM LAPI
.......................................................................
1
st
Appellant
TSEPO LERATO
KOPUTSA
..................................................
2
nd
Appellant
TEBOHO JOSEPH
LESHORO
................................................
3
rd
Appellant
and
THE STATE
..............................................................................
.Respondent
_______________________________________________________
CORAM:
LEKALE, J
et
DA ROCHA-BOLTNEY, AJ
_______________________________________________________
HEARD ON:
11 FEBRUARY 2013
_______________________________________________________
JUDGMENT BY:
LEKALE, J
_______________________________________________________
DELIVERED ON:
21 FEBRUARY 2013
_______________________________________________________
[1] On the 6 October 2009
the three appellants, who were legally represented, were each
convicted by the Regional Court at Welkom
on 1 count of housebreaking
with intention to rob and robbery with aggravating circumstances and
1 count of rape as charges 1 and
2 respectively. They were,
eventually, each sentenced to 5 years and 10 years imprisonment on
each count respectively on the 17
th
November 2009, which
sentences were directed to run concurrently.
[2] They feel aggrieved
by the sentences and now approach this court on appeal against the
same with the leave of the trial court.
[3] On sentencing the
appellants the trial court found that the crimes in question and the
circumstances in which they were committed
were serious and more
severe than the cases that usually came before her. The court
a
quo
further found that the appellants take responsibility for
their actions and appear to show some measure of remorse for what
they
did. The trial magistrate, furthermore, held that the appellants
are still young and obviously capable of rehabilitation.
[4] In the Heads of
Argument Mr Makhene contends on behalf of the appellants that, had
the court below considered the mitigating
factors it would have found
a sentence of 6 years imprisonment, at the very most, to be
appropriate in respect of each appellant
on the rape charge. In
conclusion he submits that the 10 years imprisonment sentence imposed
in respect of each appellant is shockingly
inappropriate.
[5] On behalf of the
State, Mr de Nysschen gave notice of intention to apply for
aggravation of the sentences imposed together with
the Heads of
Argument. It is, effectively, contended for the State that an
effective 18 years imprisonment is appropriate for each
appellant
regard being had to,
inter alia
, the circumstances under which
the crimes were committed and the aggravating factors such as the
fact that the rape victim was
pregnant at the time of the offence,
the appellants acted as a group and the victim was raped by all three
of them in turns and
the appellants had knives which they used to
threaten the complainants.
[6] The gravity of the
offences and the circumstances under which they were committed are
apparent from the evidence of the victims.
The rape victim was in bed
with her boyfriend at the latter’s residence when they were
rudely awakened by the appellants
who forced the door to the dwelling
open around 00:35 in the morning. The three appellants had knives in
their hands and demanded
money and cellphones and, further,
threatened them with death. The third appellant, thereafter, ordered
the boyfriend to cover
his head with a blanket and proceeded to rape
the complainant on the bed and next to him. The second appellant
followed suit after
he had forced the victim to suck his genitals.
Thereafter it was the first appellant’s turn who also gratified
himself sexually
by savagely penetrating the helpless victim carnally
without her consent. The appellants thereafter, took and left with a
large
quantity of CD’s and other property belonging to the
boyfriend and the rape victim.
[7] The first and second
appellants, eventually, changed their pleas of not guilty to guilty
on both charges after the State had
led the oral evidence of three
witnesses inclusive of the victims. The third appellant, on his part,
changed his plea on the first
charge to guilty but persisted in his
plea of not guilty on the rape charge. All appellants were convicted
on both charges with
the court below, effectively, rejecting the
third appellant’s version as not being reasonably possibly true
with regard to
the rape. The appellants did not testify in mitigation
of the sentences and their personal circumstances were placed before
the
trial court from the Bar by their legal representative. The
appellants were all born in 1991 and all completed Grade 7 at school.
They are all single, unemployed and have no children. The trial
magistrate, thereafter, requested pre-sentence reports which were
duly submitted before the sentences were imposed. The reports in
question recommended direct imprisonment in terms of section
276(1)(b) of the Criminal Procedure Act (CPA) in respect of each
appellant.
[8] The parties correctly
remind the court that a court of appeal can only interfere with a
sentence imposed if the sentencing court
did not exercise its
discretion properly or reasonably or if the sentence is disturbingly
inappropriate or disproportionate. (See
S v Giannoulis
1975 (4) SA 867
(AD) and
S v Pieters
1987 (3) SA 717
(AD).)
[9] All the appellants
were over 16 years of age but below 18 at the time of the offences in
question. The trial court, therefore,
considered herself at liberty
to depart, in her discretion, from the prescribed minimum sentences
of 15 years and life imprisonment
respectively in line with
S v
B
2006 (1) SACR 311
(SCA) at 321.
[10] In determining the
actual sentence the trial court was obliged to give recognition to
the prescribed minimum sentences. (See
generally
S v Malgas
2001 (1) SACR 469
(SCA) and
S v B
supra
at 320 g
– h.)
[11] In written argument
Mr Makhene effectively submits that the fact that the appellants
eventually changed their respective pleas
to guilty is a mitigatory
factor. As correctly submitted by Mr de Nysschen, for the State, a
plea of guilty in the face of an open
and shut case is, however, a
neutral factor and is not
per se
an indication of remorse.
(See
S v Barnard
2004 (1) SACR 191
(SCA) at 197 and
S
v Matyityi
2011 (1) SACR 40
(SCA) 46 para [13].) In the
instant matter the pleas of guilty were entered only after an
overwhelming case had been presented
by the State against the
appellants. The appellants stood no chance against such a formidable
case in our view. All the State was
about to do when the appellants
changed their minds was to close its case.
[12] It is true that
child offenders are invariably treated differently when it comes to
sentencing. The provisions of the Criminal
Law Amendment Act no 105
of 1997 (Minimum Sentences Act) regarding prescribed minimum
sentences are, further, not applicable to
children who were under 18
years of age at the time of the commission of the offence as
correctly pointed out by Mr Reyneke who
argued the appeals before us
in the place and stead of Mr Makhene. (See
Centre for Child Law
v Minister of Justice and Constitutional Development
2009 (2)
SACR 477
(SCA))
[13] The trial court
accepted that the appellants seemed to take responsibility for their
actions and, further, appeared to show
some form of remorse. There
is, however, no evidence of genuine remorse on their part. As the
Supreme Court of Appeal pointed out
in
S v Matyityi
supra
at 47a – d genuine contrition flows from full
appreciation of the consequences of one’s actions.
[14] It is not apparent
from the submissions made by their legal representative to the trial
court that the appellants appreciate
the consequences of their
actions. It is, further, not evident
ex facie
the record what
motivated their actions in the commission of the crimes and what
triggered them to change their hearts. The guilty
pleas were only
entered after the victims had been put through gruelling and
embarrassing cross examination as Mr de Nysschen correctly
submits in
argument.
[15] Mr Makhene, further,
contends in writing that the fact that no evidence of any physical or
genital injuries was placed before
the trial court should count as a
mitigating factor. He, further, feels that the same applies to the
fact that there existed no
evidence of psychological or psychiatric
after effects before the court below.
[16] As correctly pointed
out by Mr de Nysschen in the Heads of Argument:
“
Rape is a
very serious offence, constituting as it does a humiliating,
degrading and brutal invasion of the privacy, the dignity
and the
person of the victim. The rights to dignity, to privacy and integrity
of every person are basic to the ethos of the Constitution
and to any
defensible civilisation.”
(See
S v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
AD at 344 – 345.)
[17] It was submitted to
the trial court on behalf of the appellants that they were under the
influence of intoxicating liquor at
the time of the commission of the
crimes. There was, however, no evidence tendered whatsoever to show
that their faculties were
so substantially impaired by their intake
of liquor that their moral blameworthiness was diminished as to
attribute their moral
lapses to alcohol. (See
S v Cele
1990 (1) SACR 251
(AD) and
S v Raath
2009 (2) SACR 46
(C) at 55 and 56.)
[18] As correctly
observed by the trial court, even though the appellants were
juveniles when they committed the relevant offences,
they acted very
much like adults and committed very serious offences. Their moral
lapses cannot, as such, reasonably possibly be
attributed to
immaturity or lack of experience on their part. They are all of the
same age group and none can, reasonably possibly,
be said to have
been susceptible to being influenced by others merely by reason of
his age at the time of the offences. (See generally
S v
Matyityi
(supra)
at 47 – 48.)
[19] It is correct, as
effectively submitted by Mr de Nyschen, that in terms of section
322(6) of the Criminal Procedure Act the
court of appeal has the
power to reduce or aggravate the sentence where there has been a
misdirection or the sentence is shockingly
inappropriate. (See
further
S v Pieters
supra
.)
[20] In determining an
appropriate sentence for each appellant the trial court was
constitutionally obliged to regard a custodial
sentence as a measure
of last resort and to impose the shortest appropriate custodial
sentence in the circumstances of the matter.
(See section 28(1)(g) of
Constitution of the Republic of South Africa 1996 (Constitution) and
S v B
supra
at para [20].)
[21] An appropriate
sentence in a matter of the present nature is, in our view, one which
reflects a healthy balance between the
nature and gravity of the
offence concerned, the interests and needs of the child offender
involved and the interests of the society
at large. (Compare
S
v KWALASE
2000 (2) SACR 135
(C) at 139e.)
[22] Prescribed minimum
sentences applicable to adult offenders for the offences herein are
15 years and life imprisonment respectively.
The provisions of the
Child Justice Act, no 75 of 2008
(the “CJA”) are not
applicable in the instant matter because it only came into operation
after the fact of sentencing.
Its provisions are, however, edifying
because it was already in existence as an Act of Parliament as at the
date of sentencing.
[23] The pre-sentence
reports submitted in respect of the appellants, as individuals,
outlined,
inter alia
, their personal circumstances and also
indicated that they are physically and psychologically in good
condition.
[24] Mr Reyneke correctly
concedes that there exists nothing, other than the appellants’
ages as at the date of the crimes,
which justifies the imposition of
sentences lesser than prescribed minimum sentences. He, further,
concedes that if the appellants
were adults the minimum sentences
ordained for the relevant offences would be appropriate sentences, at
the very least. He, however,
beseeches the court to restrain itself
and refrain from interfering with the sentences in the event of the
appeals failing.
[25] In our view lengthy
custodial sentences are the only appropriate sentences regard being
had to the aggravating circumstances
herein, the views of the society
as reflected in the minimum sentences prescribed for the relevant
offences, where applicable,
and the personal circumstances of each
appellant. (Compare
Brandt v S
2005 (2) All SA 1
(SCA)
at para [19].)
[26] In my judgment the
sentences imposed on each appellant are out of step with the
interests of the community and the gravity
of the offences. They, as
such, desperately cry out for re-alignment by this court insofar as
they clearly lose sight of the fact
that the victims were robbed in
the comfort and safety of their love nest, the rape victim was raped
in the sanctity of her boyfriend’s
dwelling and on the same bed
which she shared with him and next to him where he lay covered with
blankets at the instance of one
of the appellants. The rape, in the
circumstances of the present matter, in my opinion, constituted a
serious affront to the boyfriend’s
manhood in that he had to
endure the pain and humiliation of peeping through the blankets and
watching, like a spineless coward,
as the appellants took turns to
rape his pregnant girlfriend. The crimes were, indeed, heinous and
vicious.
[27] In the light of the
aforegoing we are of the view that the trial court did not exercise
its discretion properly and, as such,
we are at large to interfere
and adjust the scales of justice accordingly.
[28] Mr de Nysschen feels
that an effective 18 years imprisonment is appropriate for each
appellant. In my opinion, it is essential
for the proper development
of the appellants, as young offenders, for each of them to feel the
burden of each sentence imposed
by having to serve a part of each
such sentence, even if it is only a second thereof, so as to always
be reminded that crime does
not pay and to associate it with pain.
For their erratic conduct they must pay.
[29] An appropriate
shortest custodial sentence in the circumstances of the instant
matter is, in my view, one which acknowledges
that rehabilitation is
possible even after lengthy incarceration, that the crimes involved
are very serious, pervasive and degrading
and that in the case of
adult offenders the public expects nothing less than 15 years
imprisonment for aggravated robbery and life
imprisonment for group
rape in the absence of a legal cause justifying a lesser sentence.
One which also recognises the fact that
the appellants were so
determined to commit the offences that they forced the door open,
thus, undermining the security measures
in place. At the time of
sentencing the appellants had all reached 18 years of age and, in our
view, an effective sentence of not
less than 17 years will afford
each appellant an opportunity to retrace his individual journey,
re-discover his true north and
steer his boat back into the path of
rectitude so as to eventually re-integrate with the society as a
mature, better and responsible
individual.
[30] In our view the fact
that the child offender was over 16 and below 18 years of age when
he/she committed the heinous crime
at issue is not a licence for the
court to lose sight of the gravity of the relevant offences and the
interests of society. Such
a fact requires the court to first explore
the appropriateness of non-custodial sentencing options in the
circumstances of such
a case and only to consider, as an option,
imprisonment in the absence of such other appropriate options which
allow the child
offender to rehabilitate out of custody. Even then to
opt for the shortest period over which such a child may appropriately
be
incarcerated. It is a salutary practice, in my opinion, for
sentencing courts to always keep in mind that sometimes the best
interests
of a child are best served by allowing it to have the full
measure of the pain in order to appreciate that, when one plays with
fire, one is bound to burn one’s fingers at some stage. The
shortest appropriate custodial sentence in the instant matter
must,
further, recognise the period which the appellants spent in custody
as awaiting trial inmates in line with the spirit of
CJA which,
effectively, requires a custodial sentence to be antedated to cover
such a period. (See section 77(5) of CJA). They
were arrested on the
8 June 2008 and remained in custody in the juvenile section until
they were sentenced.
.
[31] The convictions
cannot be faulted regard being had to the evidence before the trial
court and the pleas of guilty entered for
and by the appellants who
admitted all the relevant elements of the crimes.
[32] The cross-appeal,
therefore, stands to succeed.
ORDER
[33] In the result the
appeals fail and the convictions are confirmed.
[34] The cross-appeal
succeeds and the sentences are set aside and in their respective
places and steads are substituted the following:
“
AD
CHARGE NO. 1:
In terms of section
276(1)(b) of the Criminal Procedure Act the accused are each
sentenced to 10 years imprisonment.
AD CHARGE NO. 2:
The accused are each
sentenced to 15 years imprisonment in terms of section 276(1)(b) of
the Criminal Procedure Act.
The 8 years of the 15
year imprisonment in respect of charge 2 shall run concurrently with
the sentence imposed in respect of charge
1 with the result that each
accused shall serve an effective 17 years imprisonment”
[35] The sentences are
antedated to the 17 November 2009.
______________
L. J. LEKALE, J
I
concur.
____________________________
P. W. DA
ROCHA-BOLTNEY, AJ
On behalf of appellants:
Adv S Makhene
Instructed by:
Justice Centre
BLOEMFONTEIN
On behalf of respondent:
Adv JM de Nysschen
Instructed by:
The Director: Public
Prosecutions
BLOEMFONTEIN
/EB