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[2012] ZAFSHC 65
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Mosia v S (A152/11) [2012] ZAFSHC 65; 2012 (2) SACR 537 (FB) (19 April 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No.: A152/11
In the matter between:-
FANI DANIEL MOSIA
…...........................................................
Appellant
and
THE STATE
…......................................................................
Respondent
_____________________________________________________
CORAM:
RAMPAI, AJP
et
DAFFUE, J
et
PHALATSI, AJ
_____________________________________________________
HEARD
ON:
19 MARCH 2011
_____________________________________________________
JUDGMENT
BY:
RAMPAI, AJP
_____________________________________________________
DELIVERED
ON:
19 APRIL 2012
_____________________________________________________
[1] This is an appeal
against sentence. The appellant was convicted in the regional court
on 28 April 2004 and sentenced in the
high court on 9 September 2004
to life imprisonment and 8 (eight) years imprisonment in respect of
rape and attempted murder respectively.
He was aggrieved by the
sentence imposed on him.
[2] The appellant was
arrested, charged and tried as accused number 2, together with a
certain Thabang David Mosia accused number
1. His co-accused is not
before us in this appeal. Therefore the appeal does not concern him.
[3] The appellant was
tried in the Sasolburg Regional Court. The trial started on 11 July
2003. On that day he pleaded not guilty
to six criminal charges
before Mr. J.H. Ludick. Mr. W. J. Herrington appeared for the state
and Ms T. Volschenk for the defence.
Notwithstanding his plea, he was
found guilty on 28 April 2004 in connection with two of the six
charges.
[4] The appellant was
accused of one count of kidnapping, four counts of rape and one count
of attempted murder. At the end of the
trial, he was acquitted of
kidnapping and three counts of rape, but convicted in respect of the
second and the sixth charges, namely
rape and attempted murder. The
offences were committed at Zamdela, Sasolburg on Friday 1 March 2002.
The victim was Morwesi Josephine
Noge, an adult female.
[5]
Subsequent to his conviction, the proceedings in the regional court
were stayed. The appellant was, in terms of
section 52
of the
Criminal Law Amendment Act, No. 105 of 1997
, referred to the
provincial division of the high court for sentence. On 9 September
2004 Malherbe JP sentenced him to life imprisonment
in respect of the
second charge,
viz
rape
and 8 (eight) years in respect of the sixth charge,
viz
attempted murder.
[6]
The appellant comes on appeal with the leave of the court
a
quo
granted per Cillié J on 27
May 2011. The leave to appeal was granted in respect of the life
sentence only. For that reason
I shall say no more about the sentence
relative to the charge of attempted murder.
[7] It
is a salient principle of our law that the sentencing of an offender
is the prerogative of the trial court and that a court
with appellate
jurisdiction cannot interfere with the sentence entrusted to the
trial court merely because it would have exercised
such discretion
differently –
S v SALZWEDEL
AND OTHERS
1999 (2) SACR 586
(SCA).
[8]
The grounds of the appeal were that the court
a
quo
erred by sentencing the appellant
as it did because:
8.1 the sentence of life
imprisonment was shockingly inappropriate ;
8.2 the seriousness of
the crime was overemphasised;
8.3 the personal
circumstances of the appellant were underemphasised; and
8.4 there were
substantial and compelling circumstances present to warrant deviation
from the prescribed minimum sentence.
[9]
The central issue in the appeal was whether, on the facts, the court
a quo
misdirected
itself in finding that there were no substantial and compelling
circumstances to justify a departure from the ordained
legislative
norm.
[10]
On the one hand, Ms Kruger, attorney for the appellant, submitted
that the negative finding of the court
a
quo
constituted a misdirection.
Therefore she urged us to interfere.
[11]
On the other hand, Ms Liebenberg, counsel for the respondent, sharply
differed. She submitted that the negative finding of
the court
a
quo
was unassailable. Therefore she
urged us to dismiss the appeal and to confirm the sentence.
[12] The appellant chose
to give no evidence. Moreover, no evidence at all was led by anyone
on his behalf in mitigation of sentence.
From the bar his personal
circumstances were placed on record by Advocate Mene.
[13]
In sentencing the appellant the court
a
quo
took into account that the
appellant was 36 years of age; that he was a first offender; that he
had dependent minor children and
that the appellant’s personal
circumstances, which traditionally played a role as mitigating
factors, still had to be cumulatively
considered in the process of
determining whether or not substantial and compelling circumstances
were present.
[14]
Malherbe JP did not expressly make reference to the appellant’s
incarceration. The record shows that the appellant was
arrested on 4
March 2002; that, although he was granted bail, he was never released
on bail from custody and that he was effectively
incarcerated for 30
months before he was sentenced on 9 September 2004. About the
appellant’s childhood, level of formal
education, age at the
time of rape, marital status and occupation, nothing was said. To
these must be added the omission of the
court
a
quo
to comment, during sentencing, on
the victim’s seemingly superficial bodily injuries.
[15]
In
S v KIBIDO
1998 (2) SACR 213
(SCA) at 216 g –
j Olivier JA held:
“
Now, it is
trite law that the determination of a sentence in a criminal matter
is pre-eminently a matter for the discretion of the
trial court. In
the exercise of this function the trial court has a wide discretion
in
(a)
deciding which factors should be allowed to influence the court in
determining the measure of punishment and
(b)
in determining the value to attach to each factor taken into account
(see
S
v Fazzie and Others
1964 (4) SA 673
(A) at 684A - B;
S
v Pillay
1977 (4) SA 531
(A) at 535A - B). A failure to take certain factors
into account or an improper determination of the value of such
factors amounts
to a misdirection, but only when the dictates of
justice carry clear conviction that an error has been committed in
this regard
(
S
v Fazzie and Others (supra
)
at 684B - C;
S
v Pillay (supra
)
at 535E).
Furthermore, a mere misdirection is
not by itself sufficient to entitle a Court of appeal 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 (see Trollip JA in
S v Pillay (supra
) at 535E -
G).”
[16] The thrust of Ms
Kruger’s argument was that the victim’s physical injury
was not, in actual fact, as grievous as
the court
a quo
made
it out to be. She heavily relied on the medical report by Dr. S.
Zylstra (exhibit “a”). I accept that the critique,
as I
have previously outlined, levelled at the court
a quo
, was
fair. Fair enough, the medical report does not create an impression
that the bodily injuries inflicted on the victim by the
appellant and
his brother, were not serious. However, it must be borne in mind that
Advocate Mene represented the appellant and
that, on behalf of the
appellant, he placed on record those factors which he and the
appellant reckoned carried adequate weight
to constitute substantial
and compelling circumstances.
[17] Malherbe JP fully
recorded the factors which the defence relied upon. Then unlike now,
it was never the appellant’s case
that the victim did not
sustain serious physical injuries during the course of the incident.
Way back in 2002, unlike now, it was
still perfectly permissible to
heavily rely on the victim’s minor injuries as a factor which
substantially compelled the
conclusion that an injustice will be done
if the prescribed minimum sentence was imposed. Such an omission by
the defence implicitly
suggested that the appellant accepted that the
victim had sustained serious injuries on the night in question, as
she averred.
Her averment was not challenged, because it was
impermissible to attack it on appeal.
[18] Ms Kruger could give
no sound reason as to why the clinical notes of a doctor should be
preferred over the testimony of the
victim and the live observations
made by the sentencing judge. Based on the clinical notes made by a
doctor, who saw the victim
once only and just hours after the
assault, counsel for the appellant appeared to have chiefly
concentrated on the victim’s
physical injuries as described by
the doctor to the exclusion of the other evidence. The rape incident
was breathtakingly brazen
and executed with callous brutality.
[19] One shudders to
think of what could have happened to her had she managed to climb on
the drum to put her head in the noze tied
up to the rafters. Although
the violent conduct of the appellant was correctly dichotomised into
two separate and distinct crimes
by law, to the victim what her
rapists did to her after they had raped, could not be divorced from
what they did before they raped
her. To her the two phases of the
violence were but one continuous agony. Therefore, Malherbe JP was
correct in commenting on the
entire mosaic of the circumstances
prevailed and cruelly agonised her.
[20] The victim’s
evidence was that before, during and after the rape incident, she was
forcibly pulled from the street into
the house; that she was punched
in the face; that she was kicked all over; that she was repeatedly
struck with an iron rod; that
she was stripped naked; that her
wearing apparels were shredded; that she was called a harlot; that
she was persistently assaulted
until she powerlessly collapsed and
that she was then raped first by the appellant’s brother,
accused number 1, and then
by the appellant himself. Seemingly none
of the two rapists used any condom while physically molesting the
victim. It must be borne
in mind that the brutal assault took place
before the actual preparatory endeavours were made to hang her by her
neck.
[21] The victim was
called to testify in aggravation of sentence. Malherbe JP noted that
she walked to the witness box with a great
deal of discomfort. Asked
to explain to the court why she walked in that fashion, she
complained about the excruciating pains in
her feet, legs, hips, back
and neck. During her testimony it emerged that the vicious incident
had serious adverse effects on the
quality of her life. She agonised
about the possibility that she might have been infected with the
deadly HIV virus. Ever since
the brutal rape incident, she endured
endless pains. Getting intimate with her husband was unbearingly
painful. She did not enjoy
her husband anymore, because apart from
the physical pain, intimacy rekindled the emotional hurt of the
humiliating experience.
The incident had devastating impact on her
marital relationship.
[22] She was forced to
give up working as a domestic worker on account of her now physically
impaired body. She explained that she
could no longer do basic
domestic chores like any able-bodied woman or housewife. Two and a
half years after the brutal rape incident,
she was still receiving
medical treatment and physiological counselling. Objective
examination and evaluation of her evidence creates
a chilling
realisation that she is permanently disabled.
[23] Advocate Mene was
well aware of the fact that the extent of the victim’s
injuries, physical and emotional, could not
be explained on the basis
of the medical report. However it was never suggested to the victim
that her evidence was untrue. Accordingly
it could not be contended
for the first time on appeal, as Ms Kruger did, that the victim’s
version of her injuries was not
corroborated by any medical evidence.
The point was not pertinently raised during the course of the
victim’s presentence
cross-examination or in the appellant’s
notice of appeal, as one of the grounds of his appeal. The inadequacy
of the medical
report was readily appreciated in the court
a quo
.
Mr. Botha, counsel for the state, described it as a very unhelpful
medical report. Perhaps this explains why the victim was called
to
testify about the impact of the incident on her and why the court
a
quo
painstakingly dwelled on her injuries, physical and
emotional.
[24] Any suggestion that
Malherbe JP misdirected himself by taking into account the gravity of
the assault as a strongly aggravating
factor when determining an
appropriate sentence relative to the charge of rape, because as my
brother Phalatsi AJ reckoned, the
appellant had also been separately
charged, convicted and sentenced for grievously assaulting and
attempting to murder the victim
loses sight of the material fact that
the brutal violence was unleashed, by the appellant and his cohort,
on the victim in two
vicious instalments.
[25] Any view or
suggestion that the violence used in this particular incident should
have been exclusively apportioned to the charge
of attempted murder
for which the appellant was sentenced to 8 (eight) years imprisonment
and not to the charge of rape for which
he was sentenced to life
imprisonment, is untenable and fundamentally flawed. Accordingly, I
am in respectful disagreement with
the view held by my aforesaid
colleague. The sentence imposed in connection with the rape was not
improperly loaded with the violence
used in connection with the
charge of attempted murder. Moreover, it was not really so contended
by or on behalf of the appellant.
[26] The first phase of
the vicious assault was calculated to break the victim’s
resistance in order to achieve the common
criminal enterprise. The
joint venture of rape was accomplished by means of a great deal of
preceding violence. Then the second
phase started. It started after
the rape incident. The victim was once again viciously assaulted. The
rapist threatened to hang
her by her neck until she perished.
“
Ek is nie
van voorneme om die getuienis verder op te som of te herhaal nie. Na
my oordeel is hierdie ‘n baie, baie ernstige
geval van
verkragting wat baie duidelik permanente fisiese en emosionele skade
aan die klaagster gedoen het. Asof die voorafgaande
aanranding en
verkragting nie erg genoeg was nie, het u nog gedreig om haar op te
hang. Sy getuig dat sy te swak was om op die
drom te klim waarop u
gesê het sy moet klim.” (Malherbe JP)
[27] The aforegoing
passage clearly shows that the learned sentencing judge was well
aware of the transition between the two phases
of the violent attack.
The following exchange between the victim and the public prosecutor
was recorded during the victim’s
direct examination in the
regional court:
“
Wat het
gebeur nadat u nie kon opstaan nie, nadat die persone u nie op die
drom kon kry nie? --- Ek het daar gelê, hulle het
nog
aanhoudend geslaan met hierdie ysters op my.”
[28]
The quotation demonstrates the shift in the criminal mindset when a
specific criminal intent was formed to kill the victim.
The purpose
of the assault after the rape incident and the abortive attempt to
murder her was to eliminate a possible rape witness
against the
appellant and his cohort. I hold the view, and it is a very firm
view, that the two perpetrators had been correctly
sentenced for the
brutal manner in which they first assaulted the victim before and not
after they raped her. It is precisely this
type of gang rape the
lawmaker had in mind when it prescribed the minimum legislative norm.
This sort of group rape has to be eradicated
at all costs. Whenever
an offender is sentenced, the adverse repercussions of his actions on
the victim, should never be overlooked
–
S v
MATYITYI
2011 (1) SACR 40
(SCA).
All too
often one hears about flimsy reasons, cosmetically labelled as
substantial and compelling circumstances to justify departure
from
the prescribed minimum sentence of life imprisonment. This appeal was
one such case.
[29] I am not convinced
that Malherbe JP misdirected himself as Ms Kruger submitted or at
all. In my view he did not improperly
or unreasonably exercise his
sentencing discretion. The circumstances of the appellant, favourable
though they are, and the adverse
impact of the ultimate sentence
imposed on him, cannot and should not be allowed to outweigh the
gravity of the rape incident and
the callous disregard for the
victim’s bodily integrity and emotional feelings. He and his
cohort mercilessly assaulted her
so badly that members of her
brother’s family could not immediately recognise her the next
morning.
[30] I am not persuaded
that the sentence of life imprisonment was disturbingly inappropriate
in this case. The criminal joint venture,
in which the appellant was
involved, was of a very serious nature. The sentence was justified by
the interests of society whose
members are frequently brutalised and
traumatised by rapists who run amok in our communities.
[31]
None of the critiques levelled against the sentencing judge were by
themselves sufficient to be described as misdirection(s)
of such a
nature, degree or seriousness as to entitle us, sitting as we were in
an appellate mode, to interfere with the sentence.
I was not
persuaded that, in this matter, the court
a
quo
did not exercise its discretion at
all or that it exercised such discretion improperly or unreasonable –
S v PILLAY
1977 (4) SA 531
(A)
at 535 E – G.
[32]
In the absence of a material misdirection, I would dismiss the appeal
–
S v KIBIDO
,
supra
at
216 i – j. The finding of the court
a
quo
that there were no substantial and
compelling circumstances is one which I, on appeal, cannot hold to be
wrong.
[33] Accordingly I make
the following order:
33.1 The appeal fails.
33.2 The conviction
stands.
33.3 The sentence is
confirmed.
_________________
M. H. RAMPAI, AJP
I concur.
_____________
J.P. DAFFUE, J
On behalf of appellant:
Attorney S. Kruger
Instructed by:
The Justice Centre
BLOEMFONTEIN
On behalf of respondent:
Adv. E. Liebenberg Instructed by:
Director: Public
Prosecutions
BLOEMFONTEIN
/sp