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[2010] ZAFSHC 103
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Paulos v S [2010] ZAFSHC 103 (23 September 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : A90/10
In
the matter between:-
KOOS
PAULOS
........................................…................
Appellant
and
THE
STATE
…...............................................................
Respondent
_____________________________________________________
CORAM:
H.M. MUSI, JP
et
C.J. MUSI
et
JORDAAN, JJ
_____________________________________________________
HEARD
ON:
13 SEPTEMBER 2010
_____________________________________________________
DELIVERED
ON:
23 SEPTEMBER 2010
_____________________________________________________
JUDGMENT
_____________________________________________________
H.M. MUSI, JP
[1] This is an appeal
against the sentence imposed by a single judge of this court and is
before us with leave of the court
a quo
. The appellant was
convicted of rape of a minor child of nine years. This rendered
applicable the provisions of section 51(1) of
the Criminal Law
Amendment Act, 105 of 1997 (the Act), read with Part 1 of Schedule 2
thereto, which meant that the appellant had
to be sentenced to life
imprisonment, unless it was found that there were substantial and
compelling circumstances justifying the
imposition of a lesser
sentence. The court
a quo
found that there were no such
substantial and compelling circumstances in this case and accordingly
imposed the prescribed minimum
sentence of life imprisonment.
[2] The only ground of
appeal disclosed in the appellant’s notice of appeal, is that
the court
a quo
erred in finding that there were no
substantial and compelling circumstances justifying a departure from
the prescribed minimum
sentence of life imprisonment. However, in the
heads of argument drawn by Mr. Nkhahle and which Advocate Kruger, who
represented
the appellant in this appeal, has adopted, a further
ground was raised, namely that the court
a quo
committed an
irregularity in applying the minimum sentence provisions. It was
submitted that the provisions were not explained
to the appellant in
the regional court where the appellant was tried and convicted and
that that being so, the minimum sentence
provisions were not
applicable.
[3] Now, although this
ground does not form part of the notice of appeal, it raised an
important point of law that could be decisive
of the appeal.
Moreover, no prejudice could be caused to the other party by hearing
it and indeed counsel for the State raised
no objection and, in fact,
conceded the point. We considered it in the interest of justice that
the point be argued.
[4] It is trite that if
it is intended to invoke the provisions of the Act, it must be
brought to the attention of the accused that
he faces the prospect of
the prescribed minimum sentence being imposed in the event of
conviction. Failure to do so may render
the trial unfair. See
S
v LEGOA
2003 (1) SACR 13
(SCA) at 26 a – b;
S v
NDLOVU
2003 (1) SACR 331
(SCA) para [12], [13] and [14]. In
S
v NDLOVU
,
supra
, at 337 e – f Mpati JA (as he
then was) had this to say:
“
...in my
view, where the minimum sentencing provisions apply an accused must
not be subjected to the risk of being visited with
them without
having been made fully aware that such will be the case unless
substantial and compelling circumstances are present
which would
justify a lesser sentence.”
And further at 337 h –
i the learned Judge expressed himself as follows:
“
By invoking
the provisions of the Act without it having been brought pertinently
to the appellant's attention that this would be
done rendered the
trial in that respect substantially unfair. That, in my view,
constituted a substantial and compelling reason
why the prescribed
sentence ought not to have been imposed.”
[5]
In casu
, the
appellant was legally represented in the regional court. He pleaded
guilty to the charge of rape and his legal representative
handed in a
statement in terms of
section 112
of the
Criminal Procedure Act, 51
of 1977
. This statement gives no hint whatsoever that the appellant
was aware of the applicable minimum sentence. The relevant provisions
were not incorporated in the charge sheet, nor were they alluded to
in the entire proceedings. There was in fact no indication
that they
would be invoked, when suddenly it was decided after conviction to
refer the matter to the High Court for sentence. Even
at that stage
there is no indication that the appellant was apprised of what may
befall him. In the High Court the matter simply
proceeded on the
basis that the jurisdictional facts that would trigger the
application of the minimum sentencing provisions were
present.
Neither the legal representatives for the State and the defence, nor
the sentencing judge pondered the question of whether
the appellant
was aware that he faced the prospect of life imprisonment. It is
plain to me that the appellant was not made aware
that the minimum
sentence of life imprisonment would be invoked and under those
circumstances the imposition of life imprisonment
would render the
trial substantially unfair in this respect. On the authority of
NDLOVU
,
supra
, this in itself constituted
substantial and compelling circumstances justifying a departure from
the prescribed minimum sentence.
In the premises, the
sentence imposed has to be set aside.
[6] We considered the
option of remitting the matter to the regional court for imposition
of an appropriate sentence and the judgment
in
S v KIMBERLEY
AND ANOTHER
2005 (2) SACR 663
(SCA) was brought to our
attention. In this matter the Supreme Court of Appeal found that the
jurisdictional facts which would
render the minimum sentences
provisions applicable, were not present and that the High Court had
no jurisdiction to invoke those
provisions. The matter was
accordingly remitted to the regional court for sentencing.
[7] In my view, the
instant case is distinguishable from the
KIMBERLEY
-judgment.
In casu
, the jurisdictional fact that triggered the
application of the minimum sentencing provisions is present, namely,
that the complainant
was a minor child under the age of 16. This
means that,
in casu
, the High Court had jurisdiction to
entertain the matter. However, the court
a quo
erred by
overlooking the fact that the appellant had not been made aware that
the minimum sentence provisions would be invoked.
This, in itself,
constituted substantial and compelling circumstances justifying a
departure from the prescribed minimum sentence,
an issue that the
court
a quo
was competent to consider. Besides, in
KIMBERLEY
the issue of whether it was competent for the court of appeal to
itself deal with the matter and impose an appropriate sentence,
was
not pertinently considered. All the parties there had been
ad idem
that the matter should be referred to the regional court for
sentence.
In casu
, counsel on both sides submitted that we
should dispose of the matter in order that finality be reached in the
interest of justice.
It was pointed out that the matter had been
dragging for too long and, moreover, the appellant has served a
portion of his sentence.
I may add we have all the necessary material
on record to enable us to impose an appropriate sentence. In my view,
it is only proper
and fair that we dispose of the matter here and
now.
[8] In the premises, we
are at liberty to impose an appropriate sentence but we should take
into account the fact that the regional
court’s penal
jurisdiction in respect of rape was limited to 15 years imprisonment
at the time of conviction.
[9] In considering
sentence, one has to take into account the so-called triad of
sentence and also weigh up the mitigating factors
against the
aggravating factors. In this case there are strong mitigating
factors. These are:
(i) that the appellant
was a first offender;
(ii) He was relatively
young (24 years) at the time that the offence was committed;
He acted under the
influence of alcohol;
He pleaded guilty and
showed remorse;
He had been in custody
for two and a half years whilst awaiting trial.
[10] As against these
mitigating factors the nature and gravity of the offence and the
interest of society must be considered. There
can be no gainsaying
that rape is a very serious crime, especially so when committed
against a child of the age of the complainant
in this case. In
addition, this crime is prevalent throughout the breadth and length
of this country. I must also take into account
that though the
complainant does not appear to have suffered serious physical
injuries, and no evidence was led as to how she may
have been
affected psychologically, it can be accepted that she was seriously
traumatised and that the rape would have a negative
impact on her
emotional wellbeing.
[11] Finally, even if the
appellant had been made aware that the prescribed minimum sentence
would be imposed, this appeal would
still have succeeded on the basis
that the court
a quo
erred in finding that there were no
substantial and compelling circumstances justifying a lesser
sentence. In
S v MALGAS
2001 (1) SACR 469
(SCA) at 482
c – d it was made clear that ordinary mitigating circumstances
when taken together may provide weighty reasons
for departing from
the prescribed minimum sentence. The mitigating factors mentioned in
para [9] cumulatively justified a departure
from the prescribed
minimum sentence. Moreover, the sentence of life imprisonment in the
circumstances of this case would be disproportionate
to the offence
charged and imposing it would perpetrate an injustice. Compare
S
v VILAKAZI
,
2009 (1) SACR 552
(SCA) para [20].
[12] Counsel for the
state and the defence were of the view that an appropriate sentence
in this case would be between 10 (ten)
and 12 (twelve) years
imprisonment. In my view, a longer period of imprisonment is called
for and I think 15 (fifteen) years would
be appropriate.
[13] In the result, the
following order is made:
The appeal succeeds and
the sentence of life imprisonment imposed on the appellant is set
aside and for it is substituted a sentence
of 15 (fifteen) years
imprisonment, to be antedated to 17 May 2002.
____________
H.M. MUSI, JP
I concur.
___________
C.J. MUSI, J
I
concur.
_______________
A.F. JORDAAN, J
On
behalf of appellant: Adv. S. Kruger
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of respondent: Adv. D.W. Bontes
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
/sp