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[2012] ZAGPPHC 368
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W.V v S (A511/2011) [2012] ZAGPPHC 368 (3 August 2012)
SAFLII
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Certain
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IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
Case number:
A511/2011
Date: 3 August 2012
In the matter
between:
W[...]
V[...]
...........................................................................................................................................
Appellant
and
THE
STATE
....................................................................................................................................
Respondent
JUDGMENT
Heard on 23 July
2012
Handed down: 3
August 2012
Coram: Legodi J
Mnqibisa-Thusi J Lebala AJ
LEGODI
J
.
[1] The appellant
was initially convicted on two charges of rape and one charge of
indecent assault by regional court magistrate
sitting at Brakpan.
Subsequent to his conviction, the proceedings were stopped and the
matter was referred to the High Court for
sentencing. At the time,
the regional court did not have jurisdiction to impose life sentence.
[2]
The appellant then appeared in the Delmas circuit court (hereinafter
referred to as the court
a
quo)
before
Rabie J, who hen confirmed all the convictions as having been in
accordance with justice.
[3]
The court a
quo
having
confirmed the convictions, proceeded to consider sentence after
having heard evidence on both aggravating and mitigating
circumstances.
[4] The appellant
was then sentenced as follows:
4.1 Count 1: Rape;
life imprisonment;
4.2 Count 2: Rape;
life imprisonment;
4.3 Count 3:
Indecent assault; seven (7) years imprisonment.
4.4 The court a qua
further ordered that the sentences on counts 2 and 3 were to run
concurrently with the sentence in count in
count 1.
[5]
The appellant on the 8 September 2009 launched an application for
leave to appeal against sentence only. The court a
quo
granted
such leave to appeal to the full bench of this court.
[6] The grounds of
appeal as set out in the appellant’s application for leave to
appeal, written heads of argument and oral
argument can be summarised
as follows:
6.1 That the
appellant was not warned about the application of the minimum
sentence.
6.2 That the court
over emphasised the interest of the community over that of the
appellant.
6.3 That the court
did not attach weight to the appellant’s difficult childhood.
6.4 That the court
easily dismissed the fact that the appellant was a first offender and
can be rehabilitated.
[7] The first issue
is whether the court a qua erred in finding that there were no
compelling and substantial circumstances justifying
a lesser
sentence.
[8] When the
appellant was granted leave to appeal against sentence, the court a
quo expressed itself as follows:
“
I
am not going to refer
to all the factors, but the question may for example be asked, as to
whether another court might not have
more regard to the applicant’s
upbringing, the clean record and other such matters, and the effect
thereof on his ultimate
moral blameworthiness? Could another court
not find differently in respect of the issue of rehabilitation,
should that not be answered
in favour of the applicant?
Are two life
sentences in the circumstances of this case not possibly
disproportionate, especially having regard to the above. In
my view,
the circumstances are such that another court might find differently
in respect of sentence than the decision I came to?”
[9]
I tend to agree with the postulation by the court a
quo.
The
appellant’s personal Circumstances can be summed up as follows:
9.1 He was born on
the [...] 1973,
9.2 He went to
school up to standard 8 and thereafter did N3 which according to him
is equivalent to matric.
9.3 He completed
standard 8 during or about 1989. Thereafter he did military service.
9.4 He started
schooling, when he was living at a children’s home. He left
children’s home at the age of 18 .
9.5 He indicated
that he felt remorseful about what he did to the complainants.
9.6 After having
completed standard 8, he left children’s home. He went to live
with friends and occasionally visited his
people.
9.7 The appellant
and his older brother were initially at children’ home in
Johannesburg. He was there until up to grade 2.
He frequently visited
his parents at that time. The parents also visited them at children’s
home. Thereafter, he was transferred
to Pretoria together with his
older brother to join his younger brother and sister. In Pretoria,
parents visited them for about
two or three times and thereafter no
visits, no telephone calls and no birthday cards. They heard nothing
from the parents.
9.8 He saw his
parents after he had been out of the children’ home and after
he had done his military service. He went to
visit them with his
sister and younger brother. They went there during a weekend. They
made a braai. It was at a certain plot where
the parents were staying
in De Deer. They drank. His father also smoked dagga. The father
smoked dagga in front of the appellant’s
younger brother. The
appellant became angry. His younger sister was also upset and she
insisted that they should leave the place.
9.9 He felt terrible
about the conduct of his father. That reminded him of the fact that
he had to live at a children’s home.
It reminded him of the
fact that together with his siblings did not live with their parents
and were not brought up like other
children.
[10] His
blameworthiness should have been seen in the context of his
background. Clearly the appellant had a rough time in his upbringing
together with his siblings. His sister described him as a person who
grew up very often being on his own and reading books. He
grew up as
a quite person.
[11] From the
evidence that was tendered, the appellant clearly grew up wishing to
be part of his parents. Whilst he wasted no time
to display his
frustrations at the conduct of his parents, he did not seem to be an
outright person who would always look for problems.
He obviously did
not have a parental guidance and love. In all probabilities, if he
had a proper upbringing, he would not have
committed the offences for
which he had been convicted and sentenced.
[12] His upbringing,
together with failure to charge the appellant properly and failure to
explain the prescribed sentences in terms
of Act 105 of 1997, in my
view, should have been found to constitute compelling and substantial
circumstances.
[13] However,
counsel for the respondent in her written heads of argument drew our
attention to the decision in S v Mvelase 2004(2)
SACR 531 (WLD). At
page 544 E-G of the judgment, it was held that although there was no
reference to the provisions of the Minimum
Sentences Act, in the
three counts of rape, the fact that all the three charges were framed
in identical terms, can lead a legal
representative to no other
conclusion than the accused facing charges of rape defined in Part I
Schedule 2 of the Act. It was further
held that the fact that if
convicted, the accused can face the possibility of imprisonment for
life, while there might be a failure
to state this fact specifically,
there can be no question of the accused or his legal representative
being misled by the charge
sheet in regard to the nature of the
sentence, which the accused faced.
[14] I cannot fully
agree with what was stated in Mvelase’s matter. The assumption
of the accused or legal representative
not been misled by the
charge-sheet, in my view, cannot be considered at face value. It
depends on the calibre and experience of
the legal representative and
or the accused concerned. In my experience and having dealt with a
number of criminal matters where
the prescribed or minimum sentences
were applicable, the assumption as suggested in Mvelase’s
matter cannot randomly be adopted.
[15] Secondly, in
the instant case, both the rape charges were framed in charge sheet
as follows:
“
VERKRAGTING
Die
beskuldigde(s) is skuidig aan die misdaad van VERKRAGTING
Deurdat op of
omtrent gedurende 2001 en te of naby Brakpan en in die Streekafdeling
van Suid-Transvaal die beskuidigde(s) wederregtelik
vir C[...] V[...]
‘n vroulik person aangerand het en teen haar wil vleeslike
gemenskap gehad het”
[16] The
charge-sheet makes no reference to the age of the complainant, no
reference to the provisions of Act 105 of 1997 and no
reference to
whether it was a Part I Schedule 2 rape offence or Part III Schedule
2 rape offence or whether it was repeated rape
and or gang rape that
makes it an offence falling under Part I Schedule 2.
[17] On the face of
the charge-sheet, one wonders what really makes it to be a Part I
offence justifying minimum sentence of life
imprisonment or whether
it is an offence justifying a minimum sentence of ten years as a part
III offence. The lack of clarity
in the charge-sheet in my view could
have misled the appellant even his counsel for that matter.
[18] Taking it a
step further, it is not clear from the record of the proceedings as
to how the charges were put to the appellant.
All what is indicated
on the record is:
“
AANKLAER
STEL KLAGTES 1, 2 EN 3 AAN BESKULDIGDE”
[19] The court then
asked the appellant if he understood the charges and he answered in
the affirmative. The appellant then pleaded
not guilty on all the
charges.
[20] The trial court
then expressed itself as follows:
HOF:
[21] It is clear
that the court expressed the view that it was a matter that was
subject to be tried in the High Court because of
the age of one
complainant.
[22] The record is
silent as to why the age of one of the complainants became an issue.
There is no indication on record that Ms
Ntloko who appeared on
behalf of the appellant was aware that the appellant if convicted
could be sentenced to two life sentences
in the High Court.
[23] All what is
reflected on record is the explanation of plea which was outlined by
Ms Ntloko as follows:
“
...
Your worship, he
informs me that he knows nothing about
this
offence
,
he never touched the children.
He informs me that before he went to stay in his brother’s
place, there was a charge for molestation
which was laid by the
biological mother of the children, a case was opened but not against
him”
(The
underlining is my own emphasis).
[24] It is not clear
whether Ms Ntloko was giving an explanation of plea in respect of the
two rape charges or only in respect of
count 3 which related to the
indecent assault charge, the allegations amongst others, being that
the appellant leaked the complainant
on her private parts and or her
breasts.
[25] Specific
reference to the minimum sentence was made by the trial court only
after the appellant was convicted. The trial court
referred to the
age of the complainant on the rape charges as the reason to stop the
proceedings and referred the case to the High
Court for sentence.
[26]
The court a
quo
in
my view in sentencing the appellant as it did erred in not finding
that substantial and compelling circumstances exists justifying
departure from imposing the minimum sentence. The personal
circumstances of the appellant and failure by the respondent and or
the trial court to draw the appellant’s attention to the
prescribed sentences in terms of Act 105 of 1997, should have been
found to constitute compelling and substantial circumstances.
[27] This finding
then brings me to deal with the appropriate sentence that should have
been imposed in the appellant. Having found
the existence of
compelling and substantial circumstances, the discretion is wide in
reconsidering the appropriate sentence to
be imposed. The offences
for which the appellant was convicted of are very serious. It is
always difficult to understand why women
and children should continue
to be abused. These are the most innocent defenceless members of our
society.
[28] The complainant
in count 3 was the youngest victim who was seriously traumatised by
the commission of the offence, indecent
assault. She was about six
years old at the time of the commission of the offence. She was the
first one to make a complaint. She
had to undergo psychological
treatment. Her performance at school was affected. The parents were
traumatised as well. The effect
of the crime appeared to have been
very traumatic and serious.
[29] The complainant
in respect of count two on the rape charges made a complaint sometime
after the youngest complainant had done
so. At the time of the
commission of the offences, she was about 10 years old. She was said
to have been less affected or traumatised
victim. Apparently, her
performance at school was not seriously affected by the commission of
the offences on her. However, the
offences remained to be very
serious.
[30] It is when
offences of this nature which are committed against innocent and
defenceless society that the society looks upon
our courts for
protection.
[31] It is the kind
of sentences which we impose that will driver ordinary members of our
society to either have confidence or loose
confidence in the judicial
or justice system. The sentences that our courts impose when offences
of this nature are committed,
should strive to ensure that people are
not driven to take the law in their own hands, but rather to scare
away the would be offenders.
[32] However, whilst
the society expects offenders of serious offences to be appropriately
punished when convicted, it is expected
that personal circumstances
of each offender should be accorded an appropriate consideration in
assessing a balanced sentence to
be imposed.
[33] The personal
circumstances of the appellant and his background had already been
sketched out earlier in this judgment. It suffices
for now to mention
further the followings:
He was born on 6 […]
1973. At the time of the commission of the offences he was about 31
years old. He was a first offender.
When asked about how he felt
about what he did to the children, he expressed himself in Afrikaans
as follows:
“
Ek
voel sleg, seergemaak, hoe kan ek sé, ..., di is moeiik om te
beskrywe ‘n situasie soos dit, dit is elke dag by
my, ek dink
omtrent die meeste van die tyd daaraan, jy kan nie regtig aangaan met
jou lewe nie, jy weet nie wat lé voor
nie, dit is moeiik om te
sé.
[34] When asked
about how he felt with regard to the conduct of his father when they
at one stage visited him that was at the time
when his father smoked
dagga in their presence and in the presence of the youngest child, he
expressed himself in Afrikaans as
follows:
Page 164 of the
record
[35] As I said
earlier in this judgment, the appellant did not have a fair treatment
and proper upbringing. Despite his attempt
to be with his parents, he
must have felt dejected and frustrated by the lack of realisation in
them, that their children were
trying to reach out despite their
terrible upbringing. One might say his anger and frustration as
articulated above was understandable.
[36] But of course,
the circumstances under which these offences were committed had to be
seen in context. The appellant’s
older brother was married. The
wife came into the marriage relationship with a daughter, that is,
the complainant in the two rape
charges. This complainant established
a very good relationship with the appellant’s brother, despite
the fact that he was
not the biological father. The relationship was
so good that the complainant preferred to confine in the appellant’s
brother
then her biological mother.
[37] The complainant
in the indecent assault charge was the biological daughter of the
appellant’s brother. The appellant
at the time of the
commission of the offences was living with his brother, his brother’s
wife and the complainants. He was
accommodated at his brother’s
residence. His brother was a truck driver and was often not at home.
The wife was also not
at home at all times.
[38] The offences
were committed in the absence of the parents of the complainants. I
have no doubt that the complainants must have
looked up to the
appellant as their protector in the absence of their parents. He was
in a somewhat position of trust towards the
children.
[39] Instead, he
decided to betray them, not once, not twice, but on three occasions.
He did not only betray the complainants, but
also his brother and his
brother’s wife. If you cannot even trust your own brother with
your children, you ask yourself what
kind of a society are we been
turned into. All of these must be seen as aggravating against the
appellant.
[40]Assessing an
appropriate sentence is not a one way process. All relevant factors,
mitigating and aggravating had to be considered.
When they are so
considered, they must be considered on an equal basis without over
emphasising or underemphasising the one against
the other.
[41] It is therefore
not an easy judicial task to perform. The appellant could never have
escaped a long term of imprisonment. He
was convicted of very serious
charges. He allowed himself to succumb to unexplained temptation by
sexually molesting young children.
He was not a youngster at the
time. He had the maturity and the opportunity to reconsider his move
towards or against the children.
He did not, and for this he can only
blame himself.
[42] However, I do
not think the appellant is a person incapable of being rehabilitated,
moulded and shown the right path of life.
His sister who testified in
mitigation did not display him as a child who grew up as being
aggressive and prone to committing crimes.
To the contrary, he
appeared to be a person who longed for proper family life. Lastly,
his expression of how he felt as quoted
in paragraph 33 of this
judgment, does not suggest the kind of a person who is not capable of
being corrected.
[43] The appellant
was sentenced to life imprisonment in respect of counts 1 and 2
respectively, the rape charges.
[44]
He was sentenced to seven years imprisonment in respect of count 3,
the indecent assault charge. Although the indecent assault
charge may
appear to be too harsh, I do not think that the court a
quo
could
be said to have misdirected itself in this regard.
[45] The sentences
in counts 2 and 3 were ordered to run concurrently with the sentence
in count 1. In doing so, the court sought
to avoid the cumulative
effect of the sentences imposed. Whatever sentences are to be imposed
hereunder, cumulative effect thereof
will still be considered.
[46] In the
circumstances of the case, I am satisfied that the appeal in respect
of the two life sentences on counts 1 and 2 ought
to succeed.
Sentence of 10 years in respect of each charge of rape, in my view
would be appropriate. Regarding a sentence of seven
years
imprisonment on count 3, I do not think that there is any basis to
interfere with the sentence taking into account the manner
in which
the offence was committed, discretionary powers of the court a qua
and traumatic effect of the crime on the complainant.
The appeal in
respect of the sentence in count 3, should therefore fail.
[47] I would
therefore conclude by making an order as follows:
47.1 The appeal
against sentence on both counts 1 and 2 is hereby upheld and the
sentence of life imprisonment on counts 1 and 2
respectively is
hereby set aside and substituted as follows:
“
Count
1: Ten (10) years imprisonment;
(Count 2: Ten
(10) years imprisonment.
47.2 The appeal
against sentence in respect of count 3 is hereby dismissed.
47.3 It is hereby
ordered that five (5) years of ten imprisonment in count 2 and four
(4) years of seven years imprisonment in count
3 to run concurrently
with the ten years imprisonment in count 1.
M F LEGODI
JUDGE OF THE HIGH
COURT
I, AGREE
N P
MNGQIBISA-THUSI
JUDGE OF THE HIGH
COURT
I, AGREE
S M LEBALA
ACTING JUDGE OF THE
HIGH COURT