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2012
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[2012] ZAGPPHC 206
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Rasencheri v S (A1007/2011) [2012] ZAGPPHC 206 (10 September 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT/ PRETORIA)
CASE
NO: A1007/2011
DATE:10/09/2012
In
the matter between
JOHANNES
RASENCHER
I..............................................................................................
Appellant
And
THE
STATE
.........................................................................................................................
Respondent
JUDGMENT
MATOJANE
J
[1]
The appellant was convicted of two counts of rape and of assault with
intend to do grievious bodily harm by a regional court
on 30 January
2007. The proceedings were stopped and the matter was transferred to
the High Court in terms of section 52(l)(b)
of the Criminal Law
Amendment Act, Act 105 of 1997 for the imposition of sentence. That
Court (per Snyders J) sentenced the appellant
to life imprisonment in
terms of section s 51(1) of the Act.
[2]
The regional court found that the appellant had raped the complainant
twice during the course of the night. Rape when committed
'in
circumstances where the victim was raped more than once whether by
the accused or by any co-perpetrator or accomplice', attracts
a
minimum sentence of life imprisonment unless the court is satisfied
that substantial and compelling circumstances exists which
justify
the imposition of a lesser sentence.
[3]
The appellant applied for leave to appeal in respect of both
conviction and sentence. Leave to appeal was granted in respect
of
sentence only.
[4]
The evidence which was accepted by the regional court was that the
complainant, a 56 year old woman knew the appellant well
and they
worked on the same farm. On 25 November 2005, complainant arrived at
her home at about midnight. Appellant approached
her from behind,
grabbed her and suggested that they have sexual intercouse, when she
refused, appellant brutally assaulted her,
and dragged her to his
house, where he held her captive and raped her twice during the
night.
[5]
From the photos that were admitted into evidence and the J88 medical
report, it appears that the complainant had abrasions and
lacerations
on the head, face and chest and bled through the vagina as a result
of internal bruises.
[6]
The appellant's version, rejected by the court, was that he had an
affair with the complainant. On the 25 November 2005 he and
complainant consumed liquor at the home of one Piet Tabie.
Complainant left before appellant. The appellant went to his home and
later to complainant's house where he found her lying on the stoep.
According to him, the complainant was already assaulted. They
went to
appellant's house where they had consensual intercourse twice.
[7]
It was submitted on behalf of the appellant that failure by the trial
court to warn appellant of the applicability of the provisions
of
section 51(1) constitutes a substantial and compelling circumstance
justifying the imposition of a sentence less than life imprisonment.
Counsel argued that appellant was only warned of the provisions of of
section 51(2) of the act in the charge sheet, as well as
during the
pleading phase.
[8]
This submission is, in my view, about the form of the scheduled
offence of no substance. The records reads:
"COURT:
Madam you have explained to him the implications of the Criminal Law
Amendments Act 105 of 1997? Ms Kruger you have
explained the
implications?
MS
KRUGER: Yes your worship that a person that is intoxicated cannot
give consent but he would say that she was not so intoxicated
that
she did not know what was going on he had a conversation with her, he
spoke with her, he even asked her before they had consent
that can he
have intercourse with him and she accepted it your worship so
according him she was under the influence but she was
not so that she
did not understand what she was doing so that he considers that to be
with consent your worship.
COURT:
I am also referring to the provisions of section 105 of 1997 seeing
that the state alleges that she was rape [sic] more than
once the
minimum sentence will be applicable.
MS
KRUGER: Your worship I have discussed it with the accused and he does
understand your worship,"
[9]
There can be no doubt that appellant was made aware during pleading
phase long before sentencing phase that the minimun-sentencing
provision that the state sought to invoke was that which
prescribed
life imprisonment. This fact, in my view, distinguishes this case
from S v Mashinini
2012 (1) SACR 604
that appellant relied upon. I
therefore disagree with counsel's submission that the applicable
sentence is 10 years imprisonment
per rape count.
[10]
The following aggravating factors must be taken into account in
determining an appropriate sentence. Appellant raped the complainant
twice after brutally assaulting and injuring her. He kept her captive
for the night and would not let her out to attend to her
wounds.
Appellant did not show any remorse.
[11]
The following factors taken cumulatively weigh in appellant's favour,
appellant was 30 years old and was in custody for a period
of 1 year
and 11 months before sentence was imposed. He was a first offender
for rape and was gainfully employed as a farm labourer
and was under
the influence of liquor at the time of the commission of the offence,
it is therefor possible that appellant can
be rehabilitated.
[12]
In my view, the sentencing court did not accord suffient weight to
the mitigatory factors that I have mentioned above, which
constitute
substantial and compelling circumstances rendering the sentence of
life imprisonment disproportionate. In the circumstances,
this court
is entitled to interfere with the sentence on appeal and to replace
it with a sentence it considers appropriate.
[13]
In ali the circumstances, I consider a sentence of 20 years
imprisonment just and appropriate under the circumstances
[14]
The appeal against sentence is upheld. The sentence imposed by the
court below is set aside and replaced with the following:
1.
The accused is sentenced to 20 years imprisonment.
2.
The sentence is ante-dated in terms of section 282 of the Criminal
Procedure Act, Act 51 of 1977 to the 21 August 2007.
K
E MATOJANE
JUDGE
OF THE HIGH COURT Judge of the High Court
I
agree
P
C Van Der Byl
ACTING
JUDGE OF THE HIGH COURT
I
agree
J
HIEMSTRA
ACTING
JUDGE OF THE HIGH COURT