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[2012] ZANCHC 17
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S v Jonas (K/S57/03) [2012] ZANCHC 17 (26 March 2012)
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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern Cape High
Court, Kimberley)
Case No: K/S57/03
Heard: 12/03/2012
Delivered:
26/03/2012
In
the matter between:
ELLIOT
JONAS
….................................................................
Appellant
v
THE
STATE
…...................................................................
Respondent
Coram: Kgomo JP;
Williams J et Phatshoane J
JUDGMENT: FULLCOURT
KGOMO JP
The appellant, Mr
Elliot Jonas, was a 20 year old man when the gang-rape was
perpetrated on the complainant, Ms S, a 56 year old
woman on 16 June
1998. He and another accused were correctly convicted in the De Aar,
Northern Cape, Regional Court. A third
accomplice is a fugitive from
justice.
Because the provisions
of s52(1)(b)(i) in particular schedule 2, part I of the
Criminal Law
Amendment Act 105 of 1997
pertaining to compulsory or minimum
sentences were applicable the Regional Magistrate referred the case
to the High Court because
the former court had no jurisdiction to
impose a life imprisonment sentence, which was a competent sentence
for a gang-rape or
a rape committed by more than one accused on a
victim. The appeal now serves before us with leave of the Supreme
Court of Appeal,
upon petition.
Lacock J found that
there were no substantial and compelling circumstances and sentenced
both accused to life imprisonment. In
a nutshell the grounds upon
which the appellant relies and persisted in before us are the
following:
3.1 That the learned
Judge disregarded the youthfulness of the appellant as a mitigating
factor;
3.2 That the Court did
not take into account the fact that the appellant had already been in
custody for just under two years when
sentence was imposed;
3.3 That the appellant
was a first offender, a factor that the Court attached insufficient
or no weight to;
3.4 That the appellant
was in a druken stupor (“tiepdronk” or dronkslaap) when
the offence was committed;
3.5 That the cumulative
effect of the aforegoing factors do constitute substantial and
compelling circumstances.
The approach of a
court on appeal has been lucidly restated as follows in
S v
Malgas
2001(1) SACR 469 (SCA) at 478d-g by Marais JA,
writing for a unanimous Court:
“
A court
exercising appellate jurisdiction cannot, in the absence of material
misdirection by the trial court, approach the question
of sentence as
if it were the trial court and then substitute the sentence arrived
at by it simply because it prefers it. To do
so would be to usurp the
sentencing discretion of the trial court. Where material misdirection
by the trial court vitiates its
exercise of that discretion, an
appellate Court is of course entitled to consider the question of
sentence afresh. In doing so,
it assesses sentence as if it were a
court of first instance and the sentence imposed by the trial court
has no relevance. As it
is said, an appellate Court is at large.
However, even in the absence of material misdirection, an appellate
court may yet be justified
in interfering with the sentence imposed
by the trial court. It may do so when the disparity between the
sentence of the trial
court and the sentence which the appellate
Court would have imposed had it been the trial court is so marked
that it can properly
be described as 'shocking', 'startling' or
'disturbingly inappropriate'.”
On 16 June 1998,
ironically a day of celebration dedicated to the youth of this
country in bringing apartheid to its knees, the
complainant, old
enough to be the appellant’s grandmother, was walking by
herself between 15h00 and 16h00 in the afternoon
from the house of a
bereaved family to her home when the appellant and two criminal
associates accosted her. She was dragged
into a nearby bush, her
head was bashed with a rock and they took turns in raping her. She
knew all three fairly well and vice
versa, by complainant’s
accepted account. One of the assailants told her that she has been
looking down upon others for
a longtime.
The complainant
pleaded, screamed and threshed about but she was no match for her
attackers two of whom held her down whilst the
other raped her. The
trial Regional Magistrate decribed the complainant as slightly built
(tingeriggebou). The complainant says
she is a very sickly person
and suffered from epileptic seizures, highblood pressure and
arthritis.
The complainant
testified further thather rapist threatened to kill her if she
carried on screaming and resisting them. Mercifully,
a teacher,
MrBooiMarkman, who was cycling past stopped to chat to an
acquaintant-passerby when he heard the complainant’s
plaintive
cries. He caught the appellant’s co-accused in the act of
raping the complainant and intercepted him when he
fled. The
appellant and the fugitive from justice were a few paces away. They
fled but appellant was later arrested. Markman
knew all of them very
well.
Lacock J, who was
better placed than us and observed the complainant during her
testimony, remarked as follows:
“
Die
traumatiese en vernederendeeffekwathierdieverkragtings op [me.
S]gelaat het, is vandag, naongeveervyfjaar, steeds vlak op haargemoed
en selfbeeld. Terwylsy in hierdie Hof die beseringswatsyopgedoen het
in die verkragtingsbeskryf het, het sydeurentyd sag gehuil,
wousyniena die beskuldigdeskyknie en somsy die
geestelikeletselswatdit op haargelaat het treffend op in die woorde,
“As
ek tog maar liewerdood was.”
Ekkan my
nouliksenigietsergersvoorstelwat die integriteit, selfbeeld, trots,
selfrespek en vrouwees van `n vroukanverwoessooswanneersyverkrag
word. Verkragting is niksanders as psigiese of geestelikemoordgepleeg
op ‘n vrounie.”
In my view the
following can be construed to be themisdirections by the sentencing
court a quo:
9.1 The court did not
take into account that the appellant had been an awaiting-trial
prisoner for just under two years;
9.2 The court stated
that:
“
Wathierdiegevalsoveelmeerernstigmaak
is dat die drie van u by herhaling die klaagsterverkrag het.”
Counsel, and us too,
understood this statement to mean that each one of the three accused
raped the complainant more than once.
The fact is that only accused 1
raped the complainant more than once. The appellant and the fugitive
suspect beat a hurried retreat
when accused 1 imposed himself again
on the complainant. The appellant was therefore not a repeat rapist
and did not facilitate
the second rape nor did he associate himself
therewith.
9.3 The provisions of
sections 51
to
53
of
Criminal Law Amendment Act, 105 of 1997
came
into operation on 1May 1998: thus only six weeks before the crime was
committed on 16 June 1998. Our courts have always taken
the salutary
common sense approach that it is a mitigating factor when a newly
created crime is committed or an accused falls foul
of a recently
enhanced sentence. The rationale being that the public may not have
been apprised or sufficenly apprised of the adverse
consequences of
the offence or sentence. See:
S v Shangase
1972(2) SA
410 (N) at 423G whereat
Harcourt J
state:
“
As a limited and
transient consideration, the question whether or not the offence had
been committed so soon after the coming into
force of the the Act
that the particular accused was unlikely to have been aware of the
new and more drastic approach to the whole
question of dagga.”
See also:
S v
Kukarie
1972(2) SA 907(O) at 916D-E.
9.4 The only other
factor which can be regarded as mitigating (which the learned Judge
indeed had regard to) is that the appellant
was a first offender.
In light of the
aforegoing we are at large to assess sentence afresh.
The appellant was 20
years old at the time of the offence. There is nothing that suggests
immaturity in his conduct. See:
S v Matyityi
2011(1)
SACR 40 (SCA) at 47e-48b (para 14) the Court held:
“
[14] ---
During the course of the judgment reference was made to the
respondent's 'relative youthfulness', without any attempt at
defining
what exactly that meant in respect of this particular individual. It
is trite that a teenager is prima facie to be regarded
as immature
and that the youthfulness of an offender will invariably be a
mitigating factor, unless it appears that the viciousness
of his or
her deeds rules out immaturity. Although the exact extent of the
mitigation will depend on all of the circumstances of
the case, in
general a court will not punish an immature young person as severely
as it would an adult. It is well established
that, the younger the
offender, the clearer the evidence needs to be about his or her
background, education, level of intelligence
and mental capacity, in
order to enable a court to determine the level of maturity and
therefore moral blameworthiness. The question,
in the final analysis,
is whether the offender's immaturity, lack of experience,
indiscretion and susceptibility to being influenced
by others reduce
his blameworthiness. Thus, whilst someone under the age of 18 years
is to be regarded as naturally immature, the
same does not hold true
for an adult. In my view a person of 20 years or more must show by
acceptable evidence that he was immature
to such an extent that his
immaturity can operate as a mitigating factor.”
The appellant is
accordingly treated as an adult.
The attack on the
complainant was vicious and Mr Van Tonder, for the appellant, wisely
did not pursue the aspect of appellant’s
age as mitigating nor
did he seek to convince us that the appellant was drunk and that
these factors impaired or blighted his
mental faculties or
influenced his conduct. The aggravating factors emanate clearly from
what has been stated hereinbefore and
need not be repeated.
Mr Van Tonder
suggested that a 20-year sentence would be appropriate whereas
MsSerepo, State counsel, submitted that the aggravarting
features by
far outweigh the mitigating factors and that the life imprisonment
sentence ought to be left undisturbed.
In my view, the
factors enumerated in para 9 above, cumutively considered, do
constitute substantial and compelling circumstances
which justify
thedeviaton from the prescribed sentence of life imprisonment. In
the circumstances I reckon that 20 years imprisonment
would
suffiently express the moral turpitude of the offence, the interest
and indignation of society whilst recognizing the ameliorating
factors in the case in favour of the appellant.
ORDER
I make the
following order:
1. The sentence of life
imprisonment is set aside and the following sentence is imposed in
its place:
“
The accused is
sentenced to 20 (twenty) years imprisonment.”
2. In terms of
s282
of
the
Criminal Procedure Act, 51 of 1977
, the sentence is antedated to
19 September 2003.
_____________________
F DIALE KGOMO
JUDGE PRESIDENT
Northern
Cape High Court, Kimberley
I
concur
_____________________
C C WILLIAMS
JUDGE
Northern
Cape High Court, Kimberley
I
concur
_____________________
V M PHATSHOANE
JUDGE
Northern
Cape High Court, Kimberley
On behalf of
theAppellant
:
Mr. A. Van Tonder
Instructed by: Legal
Aid Board
On behalf of the
Respondent
:
AdvSerepo
Instructed by: Director
Public Prosecutions