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[2010] ZAFSHC 100
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Mabitse v S (A84/10) [2010] ZAFSHC 100; 2012 (2) SACR 380 (FB) (9 September 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A84/10
In the matter between:-
DINGANE MABITSE
…...............................................
Appellant
and
THE STATE
….............................................................
Respondent
_____________________________________________________
CORAM:
RAMPAI, J
et
MOLEMELA, J
_____________________________________________________
HEARD
ON:
6 SEPTEMBER 2010
_____________________________________________________
JUDGMENT
BY:
RAMPAI, J
_____________________________________________________
DELIVERED
ON:
9 SEPTEMBER 2010
_____________________________________________________
[1] This is an appeal.
The appellant was convicted on a charge of rape and sentenced to ten
years imprisonment in the Welkom Regional
Court on 9 October 2009. He
now comes on appeal against the sentence with the leave of the court
a quo
.
[2] The grounds of the
appeal are: that the court
a quo
erred by not properly taking
into account the personal circumstances of the appellant; that the
court
a quo
erred by finding that the aggravating factors
overshadowed the mitigating factors and that the court
a quo
erred by finding that there were no substantial and compelling
circumstances to justify deviation from the prescribed minimum
sentence.
[3] On behalf of the
appellant, Mr. Van der Merwe submitted that if the court
a quo
had struck a proper balance between the personal circumstances of the
appellant and the crime he committed, instead of overemphasising
the
nature and the seriousness of the crime, on the one hand, but
underemphasising the personal circumstances of the appellant,
on the
other hand, it would have found that substantial and compelling
circumstances existed.
[4] On behalf of the
respondent, Ms Giorgi supported the sentence imposed. She contended,
contrary to the aforegoing contention
of the appellant, that the
court below properly considered all the relevant factors in a
balanced manner. Her submission, therefore,
was that the court below
did not err in finding that there were no substantial and compelling
circumstances present in this case.
[5] There were mitigating
factors present in the case. The appellant was born on 17 December
1975. He was 32 at the time he committed
the offence and 33 years of
age at the time of the imposition of the sentence. He was educated up
to matric. He was employed as
a distributor or vendor of a magazine.
He was in the employ of Soccer Laduma, a print media business
enterprise. He earned R1 900,00
per month. He used his wages to
maintain himself, his sisters and their children. He had a clean
criminal record.
[6] There were also
aggravating factors present in the case. The trial court took into
account the seriousness of the crime of rape;
its prevalence in the
particular region; the legitimate interest of society in the
punishment of rape offenders; the fact that
the victim was a child;
the fact that she was emotionally traumatised by the violation; the
fact that she trusted the appellant
and went to his shack for help
and that he took advantage of her.
[7] Having considered the
aggravating factors and the mitigating factors the court
a quo
concluded with the following findings:
“
Minimum
sentences are not to be departed from lightly and for flimsy
reasons.”
Vide
p.
91: 22 – 23 record)
“
..... the
Court finds that the circumstances as a whole cannot be described to
be substantial and compelling.....”
Vide
p.
92: 5 – 7 record)
[8] The crucial question
in the appeal is whether or not the finding that no substantial and
compelling circumstances existed, which
finding unlocked the door for
the imposition of the prescribed minimum sentence, was correct.
[9] It
is so that the victim did not sustain visible, external, physical
injuries during the course of the incident. Counsel for
the appellant
contended that the absence of such injuries in itself demonstrated
that the appellant used minimal measure of violence
to attain his
criminal objective.
A
T WATSON v THE STATE
–
unreported
appeal decision of this division – case no. A267/2009 per
Kruger J and Jordaan J. However counsel for the respondent
contended
that the fact that the victim did not sustain serious physical
injuries did not count in favour of the appellant.
BOOYSEN
v S
[2009
]
JOL
24464
(ECG)
[10]
In
BOOYSEN
v S
,
supra
,
it was contended that the trial judge had erred in concluding that
there were no substantial and compelling circumstances within
the
meaning of section 51(3)(a) in that,
inter
alia
,
he held that the absence of physical injuries on the part of the rape
victim was not a substantial and compelling circumstances.
At par.
[3] Jones J said the following about the contention:
“
[3] It
is so that the complainant did not suffer physical injuries other
than those which follow upon the act of rape,
and that Jansen J did
not take that consideration into account in the appellant's favour.
In my opinion, his failure to do so was
not a misdirection. The
complainant was 10 years old. She was a tiny child, slender and
slightly built, and quite incapable of
offering resistance to a
sexual assault by an adult. These would presumably be among the
considerations which motivated section
51(3)(aA) of the Act which
says that the apparent lack of physical injury shall not constitute
substantial and compelling circumstances
for the purpose of the Act
in the case of the rape of a girl under the age of 16 years.”
The victim was a girl, 10
years of age.
[11] In
S v GN
2010 (1) SACR 93
(TPD) at p. 98 (par. [16]) Du Plessis J commented as
follows about the uninjured rape victim:
“
It is true,
as counsel pointed out, that the complainant suffered no physical
injuries. In my view, that fact, although relevant,
cannot carry much
weight. Rape itself is 'an act of violence committed against a woman'
(
S
v Ncheche
[2005] ZAGPHC 21
;
2005
(2) SACR 386
(W)
in
para 25). If the victim is physically injured in the course of the
rape, a crime that is inherently serious is rendered even
more
serious. Moreover, one should not place too much emphasis on physical
injuries or the absence thereof, as such injuries would
ordinarily
heal in the course of time.”
The victim was a girl, 5
years of age.
[12] Section 51
Criminal
Law Amendment Act, No. 105 of 1997
was recently amended. The
Amendment Act, No. 38 of 2007 came into operation on 31 December
2007. Section 51(3)(a) (1997) legislation
was amended by the
insertion of section 51(3)(aA) (2007) legislation. The latter reads:
“
(a A ) When
imposing a sentence in respect of the offence of rape the following
shall not constitute substantial and compelling
circumstances
justifying the imposition of a lesser sentence:
(i) The
complainant's previous sexual history;
(ii) an apparent lack of
physical injury to the complainant;
(iii) an accused person's
cultural or religious beliefs about rape; or
(iv) any relationship between
the accused person and the complainant prior to the offence being
committed.”
[13] My brother and
author A. Kruger:
Hiemstra’s Criminal Procedure
comments
as follows about the rape victim’s physical injuries:
“
If
the provision regarding the apparent lack of physical injuries is
interpreted literally, it is unconstitutional because it would
mean
that Parliament is attempting to instruct judges to ignore factors
which are relevant when imposing sentence, and to impose
sentences
which would consequently be unfair (
S
v Nkawu
2009 (2) SACR 402
(ECG) par [15] per Plasket J). The provisions should however be read
so as to preserve constitutional
values. Section 51(3)(
aA
)(ii)
should be read to mean that any one of the factors mentioned on their
own may not be regarded as a substantial and compelling
circumstance
justifying departure from the prescribed sentence, but each of the
factors may be considered together with the other
factors
cumulatively to amount to substantial and compelling circumstances.
On this interpretation the court is not precluded from
considering
the fact that the complainant suffered no serious or permanent
injuries, along with the basket of other factors, in
order to arrive
at a just and proportionate sentence (par [17]).”
I respectfully subscribe
to this view.
[14] In
S
v NKAWU
2009 (2) SACR 402
(ECG) at 405
(par. [11]) Plasket J remarked:
“
[11] The
physical injuries suffered by the complainant were not serious. They
are indicative of a relatively minor degree of force
being used. They
are not permanent in nature. There is evidence that she suffered
discomfort and pain for a while.”
[15] Still in
S v
NKAWU
, supra
, at par. [10] Plasket J said the
following about young rape victims:
“
[10] As a
general rule, it can be said that a rape will be progressively more
serious the younger the victim, if only because the
younger the
victim, the more vulnerable she will be and the greater the chance of
serious injury. In this instance the victim was
a ten-year-old girl.”
I share the views by the
learned judge.
[16] Indeed rape is by
its very nature a violent act as Du PLessis J correctly pointed out
in
S v GN
,
supra
, at par. [16]. It is so that
physical injuries may heal with the passage of time. However, at
times rape victims become permanently
deformed by the physical
injuries which had long healed. Such physical scarring may constantly
remind the victim of her dreadful
rape ordeal. In such a case a
victim’s emotional healing process might well be retarded by
her physical deformity occasioned
by the excessive violence employed
by a rapist.
[17] Just as the courts
should realise that emotional scarring is likely to differ in kind
and degree from one case to the next
(Jones J in
S v BOOYSEN
,
supra
, at par. [7]) so too must the courts realise that
physical scarring is likely to differ in kind and degree from one
rape case to
the next. The physical injury symbolises the measure of
violence a perpetrator unleashed on a victim. The greater the degree
of
severity of the rape victim’s physical injury, the greater
the degree of the rapist moral blameworthiness. I am of the firm
view
that dictates of justice demand that in meting out sentence
differentiation be made based on the degree of violent and brutal
force used.
[18] If the presence of
physical injury is properly treated as a factor which aggravates
sentence, then the absence thereof must
necessarily be treated as a
factor which mitigates sentence. If it can mitigate, then it
qualifies, not singularly but collectively,
along with other such
factors for inclusion in the melting pot and consideration in order
to make a determination in terms of section
51(3) regarding the
existence or otherwise of substantial and compelling circumstances –
Plasket J in
S v NKAWU
,
supra
, at par. [17].
[19] I turn now to
consider the factors relative to sentencing in the particular case.
The victim was raped on 10 February 2008,
ten days after section
51(3)(aA) became operative.
[20] There is no doubt
that this rape case remained a despicable misdeed even though the
appellant used minimal violence. From experience
we know that
rapists, almost invariably, physically harm or threaten to harm their
victims. They usually brandish some dangerous
weapons to force their
victims into submission. None of such things were done in this case.
There are rape cases and there are
rape cases. Some are worse than
others –
S v ABRAHAMS
2002 (1) SACR 116
(SCA) at
par. [28]. There are rape offenders and there are rape offenders.
Some are more brutal than others. These are not subtle
or cosmetic or
meaningless or flimsy distinctions. These are real important factors
which must be practically recognised and reflected
in the way rape
offenders are punished. To ignore these distinctions and to paint
rape offenders with the same brush simply because
they fall in the
same penal category (p2s2), in other words part 2 schedule 2, would
boil down to a disregard of the discretion
entrusted to a sentencing
court in terms of section 51(3)(a) Act No. 105 of 1997.
[21] The absence of
physical trauma in this case, cannot be fairly treated as an
irrelevant or a neutral factor. It was an important
mitigating factor
for which the appellant should have been credited. The significance
thereof lies in the fact that it indicated
that the case we were
dealing with did not resort under the most serious rape cases. By far
worse case scenarios are conceivable.
Injuries or no injuries,
condoms or no condoms, rape strikes at the very core of the victim’s
femininity. This is true in
all rape cases. However, it must also be
accepted that lack of brutal force is a factor which diminishes the
moral blameworthiness
of a rape offender’s actions.
[22] In the instant case
a number of factors count in favour of the appellant. At the age of
33 years he still had a clean slate.
Certainly it was a commendable
record for the appellant. He was formally an enlighted man. He has
passed grade 12. He was gainfully
employed. Although he was single
with no dependent minor children, he took it upon himself to maintain
his sisters and their children.
The evidence suggests that he did
not, seriously or at all, plan the crime in advance. He did not go
out of his way, as is often
the case, to lure the victim to his
dwelling. His unlawful behaviour was not remarkably characterised by
violent, brutal or gruesome
features. The effect of this was that the
degree of his moral blameworthiness was comparatively low. His crime
did not rank among
the worst of rape cases, serious though it was.
[23] These factors
cumulatively considered, together with the rest of his personal
circumstances, are substantial factors which
compellingly called for
a different response from the prescribed minimum sentence. To the
extent that the trial court found them
flimsy, unsubstantial and
uncompelling, it erred in my respectful view.
[24] Since the
misdirection was material, I am inclined to interfere. The prescribed
minimum sentence was, in my view, unjust in
the circumstances of this
particular case as a whole. It seems to me that a decremental
deviation of two years imprisonment would
be an appropriately extent
of appellate interference. Such a sentence would not only be
deterrent but also rehabilitative. This
kind of sentence will, in my
opinion, justly satisfy the legitimate interest of society in the
sentencing of the offenders.
[25] Accordingly I make
the following order:
25.1 The appeal succeeds.
25.2 The conviction
stands.
25.3 The sentence of ten
years imprisonment is set aside. It is substituted with one of eight
years imprisonment.
25.4 The substitute
sentence is antedated to 9 October 2009, a date on which the original
sentence was imposed on the appellant.
______________
M.H. RAMPAI, J
I
concur.
_________________
M.B. MOLEMELA, J
On behalf of appellant:
Adv. P. van der Merwe
Instructed by:
The Justice Centre
BLOEMFONTEIN
On behalf of respondent:
Adv. S. Giorgi
Instructed by:
Deputy Director of Public
Prosecutions
BLOEMFONTEIN
/sp