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[2011] ZAFSHC 99
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Karelson v S [2011] ZAFSHC 99 (9 June 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: A222/2011
In
the appeal between:
SAMUEL KARELSON
Appellant
and
THE STATE
Respondent
_____________________________________________________
CORAM:
RAMPAI J
et
VAN ZYL J
_____________________________________________________
JUDGEMENT:
RAMPAI J
HEARD ON:
9
MAY 2011
_____________________________________________________
DELIVERED ON:
9 JUNE 2011
[1] This is an appeal
against sentence. The appellant was convicted on a charge of rape,
and one of pointing a fire-arm in contravention
of section 120(6)(a)
of the Arms Control Act, 60 of 2000. On 13
th
July 2009 he
was sentenced to life imprisonment in respect of the rape charge and
two years imprisonment in respect of the pointing
of an fire-arm. He
now comes on appeal in accordance with his automatic right to appeal.
The respondent opposes the appeal.
[2] The sentence of 2
years imprisonment imposed in connection with the pointing of a
fire-arm was not challenged in this appeal.
The appellant’s
stance is understandable. I shall say no more about it during the
course of this judgment. It was primarily
the sentence of life
imprisonment which was under attack in this appeal.
[3] The court a
quo
found that the aggravating factors exceeded the mitigating factors by
such a substantial margin that it could not be convincingly
held that
there was any justification for the imposition of any sentence other
than the prescribed minimum sentence of life imprisonment.
[4] The question in the
appeal is whether the aforesaid finding by the court a
quo
was
correct on the facts. Mr Van der Merwe, attorney for the appellant,
and Mr Pienaar, advocate for the respondent, differed.
Contrary to
the former’s submission, the latter submitted that the court a
quo
committed no misdirection to warrant any interference with
the crucial finding.
[5] On behalf of the
appellant it was contended that the following factors, cumulatively
considered, qualified to have been recorded
as substantial and
compelling circumstances which justified the imposition of a sentence
less than the prescribed minimum sentence
of life imprisonment,
namely: that the appellant was a first rape offender; that he was a
family man; that he was the father of
4 dependent minor children;
that he was 42 years of age; that he was incarcerated for
approximately three years before he was sentenced;
that the victim
had sustained no physical injuries; that the incident did not have
adverse traumatic effects on her and that the
circumstances of this
case did not put it in the category of the most serious rape cases.
Those then completed the sum total of
the factors which
individualised the appellant’s person and conduct.
[6] In sentencing the
appellant the court a
quo
took into account the following
aggravating factors: the nature and the gravity of the crime of rape;
the need to protect society
by deterrently punishing rape offenders;
the vulnerable age of the victim as a child; the fact that two
adults, the appellant and
his friend, acted together, to commit the
misdeed against a minor; the family tie between the appellant and the
victim; the cunning
plan used to lure the victim; and the apparent
anxiety of the victim while she was testifying.
[7] Where a minor child
is raped, as in this instance, the offence is classified under the
part I, schedule 2 and attracts a sentence
of life imprisonment.
Where a victim, irrespective of any legal disability such as the
victim’s minority, mental impairment,
or physical disability –
is raped by two persons, the offence is similarly classified and
attracts a similar sentence. The
fact that the victim was a minor
should not have been taken into account again when the aggravating
factors were determined –
S v WATSON
201 FSB
A267/2009
at par [5], line 3 – 9 (19.04.2010) per Jordaan J
with whom Kruger J concurred. In this instance, the victim was a 14
year
old girl child. Rape victims subject to minority legal
disability can range from less than one year to just below 16 years
of age.
All children in that age range are vulnerable. It must be
borne in mind that the younger they are the more vulnerable they get.
[8] This is not just a
case of a minor victim who had been raped. The appellant was not
alone in it. Here we have a minor child
raped by two adult men. The
appellant, her relative for that matter, was one of the two. Had the
victim being an adult woman who
was not subject to any of the
aforesaid legal impediments, there could have been some argument that
the court a
quo
erred in using the classifying factor as an
aggravating factor. In
casu
the victim was a minor. On that
ground alone the appellant’s conduct attracted the prescribed
minimum sentence of life imprisonment.
Moreover, the victim was a
minor. The appellant went a step further when he was already in the
hot water for life. He participated
in the further raping of the
victim by his friend.
[9] Where, as in this
instance, the offender’s conduct attracts the prescribed
minimum sentence on two or more classifying
grounds, only one such
classifying grounds may be correctly ignored in determining the
aggravating factors. The fact that the appellant
and his
co-perpetrator criminally collaborated to violate the victim
increased the moral blameworthiness of his initial conduct
of raping
a minor.
[10] By planning together
with another and facilitating the victim’s further rape by
another he certainly aggravated the minimum
conduct, which initially
catapulted him into the first class of the most serious crimes. The
natural indignation of society was
correctly reflected in this case
by treating the second dimension of the appellant’s conduct as
an aggravating factor. On
this particular aspect I am not persuaded
that the regional magistrate erred.
[11] The appellant was
incarcerated for almost thirty four months from the 15
th
September 2006 until the 13 July 2009. The court a
quo
did not
comment about this aspect at all. This is the first aspect of the
critique.
[12] The appellant was
once convicted of theft, way back, on 19
th
March 1986. He
was then sentenced to corporal punishment in the form of five cuts
with a cane. He was 22-years of age at the time.
When he was
sentenced in connection with the current rape conviction, the
previous theft conviction was about 21 years old. This
fact
notwithstanding, the learned regional magistrate still regarded the
appellant as an offender. Her worship was obviously reluctant
to
accept the fact that, for an uninterrupted period of no less than ten
years immediately preceding the 13 July 2009, the appellant
had an
unblemished criminal record. The comments of the court a
quo
that it could not accept the submission that the appellant was a
first offender, regrettably created the impression that no adequate
weight or value was attached to the status of the appellant as a
first offender in the eyes of the law. There is much to be said
for
the argument that the mind of the court a
quo
was apparently
contaminated by the previous conviction which had long served its
purpose and expired almost a quarter of a century
ago this is the
second aspect of the critique.
[13] There was no
evidence that the appellant excessively used violence other than the
violence inherent in the act of forceful
penetration itself. The
complainant sustained no serious physical injuries, moreover there
was no evidence that she sustained emotional
injury or lasting
adverse effects from this incident. Although there was no evidence to
accurately measure the true emotional harm,
I accept that the sexual
violation did have an adverse impact on her somehow. The third aspect
of the critique was that the court
a
quo
disregarded the
importance of the absence of excessive violence.
[14] Mr Van der Merwe,
attorney for the appellant, submitted that the court
a quo
should have found that substantial and compelling circumstances
existed to justify deviation from the ultimate sentence of life
imprisonment. He conceded, though that the appellant had committed a
despicable deed but argued that the ultimate punishment of
life
imprisonment was reserved for the most serious of the cases. He
further submitted that, on the facts, the instant case could
not be
described as such.
[15] In
S v
ABRAHAMS
2002 (1) SACR par [29] Cameron JA commented:
“
In addition,
I agree with Foxcroft J that this is not one of the worst cases of
rape. This is not to say that rape can ever be condoned.
But
some rapes are worse than others, and the life sentence ordained by
the Legislature should be reserved for cases devoid of substantial
factors compelling the conclusion that such a sentence is
inappropriate and unjust.
As Davis J stated in S v Swartz and Another:
'As controversial a proposition as
this is bound to be, as
not all murders carry the same moral
blameworthiness, so, too, not all rapes deserve equal punishment.
That is in no way to diminish
the horror of rape; it is however to
say that there is a difference even in the heart of darkness.'”
[16] In
S v GN
2010 (1) SACR 93
(TPD) 97 Du Plessis J writing for the majority
articulated the view that since the sentence of life imprisonment is
the ultimate
penalty it should not be lightly imposed. The courts are
required to differentiate between sentences in accordance with
dictates
of justice. Where the prescribed minimum sentence is less
than life imprisonment differentiation according to the degree of
moral
blameworthiness presents no undue difficulties. Where, however,
the prescribed minimum sentence is life imprisonment differentiation
presents enormous difficulties. This is so because an offender, as a
human being has only one lifespan.
[17] In my view the
brutality of the offender’s violent actions is a critical
factor. The greater the degree of an offender’s
reprehensible
moral blameworthiness the less the chances of deviation become
S
v MATYITYI
2011 (1) SACR 40
(SCA). The converse also applies
S v NKOMO
2007 (2) SACR 198
(SCA). The courts always go
to great lengths to search and find sound reasons to deviate from
imposing the ultimate sentence. Great
care is taken to avoid imposing
it merely because it is prescribed. The following passage is
instructive:
“
Accordingly,
in its quest to do justice, a court will more readily impose a lesser
sentence where the prescribed minimum sentence
is imprisonment for
life.
Put differently, where the prescribed minimum is life imprisonment,
a
court will more readily conclude that the circumstances peculiar to
the case are substantial and compelling, to the extent that
justice
requires a lesser sentence than life imprisonment.
”
S v GN
supra,
par [12].
[18] I have considered
all the points of critique and I am persuaded that those individual
points as outlined herein as well as
their cumulative effects coupled
with the collective impact of the appellant’s personal
circumstances as outlined in paragraph
[5] warranted a finding that
substantial and compelling circumstances were present to justify a
deviation from the ultimate sentence.
To the extent that the court a
quo
failed to consider them or considered them but failed to
attach sufficient value to them, which weight they individually and
collectively
deserved, it substantially erred. In view of such
material misdirection we are entitled to interfere. I am of the firm
view that
this was not a case devoid of substantial factors
compelling the conclusion that the ultimate sentence was
inappropriate and unjust.
[19] Accordingly, I make
the following order:
19.1 The appellant’s
appeal succeeds;
19.2 The sentence of life
imprisonment by the court a
quo
on the appellant on 13 July
2009 is set aside;
19.3 The sentence so set
aside is substituted with one of 18 years imprisonment;
19.4 The substitute
sentence is antedated to 13 July 2009 being the date on which the
original sentence was imposed.
19.5 The sentence of 2
years imprisonment imposed in respect of the second charge stands
confirmed.
19.6 The two sentences
shall run concurrently.
______________
M. H. RAMPAI, J
I concur.
_______________
C. VAN ZYL, J
On behalf of the
appellant: Attorney P L van der Merwe
Instructed by:
Bloemfontein Justice
Centre
BLOEMFONTEIN
On behalf of respondent:
Adv. F Pienaar
Instructed by:
Deputy Director:
Public Prosecutions
BLOEMFONTEIN
/eb