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[2009] ZAGPJHC 50
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Kearns v S (A214/2009) [2009] ZAGPJHC 50; 2009 (2) SACR 684 (GSJ) (10 September 2009)

IN THE SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
CASE NO: A214/2009
In the matter between
ANTHONY
KEARNS
APPELLANT
and
THE STATE
RESPONDENT
J U D G M E N T
JAJBHAY J:
[1] On 18 July 2005 the appellant was convicted in
the Regional Division of Southern Transvaal in Johannesburg on one
count of rape
read with the provisions of section 52(1) of the
Criminal Law Amendment Act 105 of 1997
(“
the Act
”);
one count of indecent assault read with the provisions of section
52(2) (b)
1
of the Act and one count of assault with intent to do grievous bodily
harm.
[2] The sentencing of the appellant was referred
to the High Court in terms of s 52(1) of the Act.
[3] On 19 June 2006 Borchers J confirmed the
conviction on counts 1 and 2 but not on count 3. The conviction on
count 3 the learned
judge found constituted a duplication of
convictions and was accordingly set aside.
[4] The appellant was subsequently sentenced as
follows: in respect of count 1, (rape) – life imprisonment;
and in respect
of count 2 (indecent assault) – 10 years
imprisonment. He was further declared unfit to possess a firearm.
[5] The appellant now appeals with leave of the
court below in respect of sentence imposed.
[6] The traumatic events that unravelled on 24
November 2001 at approximately 17h00 may be summarised as follows.
The complainant
was playing with her friends outside a block of
flats. The complainant knocked on the appellant’s door and ran
away. The
appellant opened the door, followed her and apprehended
her. He forced her into his apartment. In the apartment the appellant
forced
the complainant to view pornographic material. He assaulted
her in the process. The evidence indicates that the complainant was

strangled during the traumatic turn of events. Thereafter the
appellant raped and sodomised the complainant. The evidence further

established that the complainant’s clothing was stained with
blood. The entire event as will become apparent was extremely
painful
and traumatic for the complainant.
[7]
The learned Judge
describes the injuries sustained by the complainant, in her judgment
as follows:
Die fisiese
beserings wat sy opgedoen het is skokkend en grusaam. Haar hele
gesig en nek het kneus wonde getoon en daar was kneusings
tussen haar
skouerblaaie. Haar maagdevlies was tota
al
vernietig en haar vagina het drie vingers toegelaat. Daar was ‘n
derde graad se skeur van die slymvlies wat getrek het
deur die
spierwand van die vagina tot in die klaagster se anus. Die eksterne
knypspier van die anus is totaal vernietig. Die
wonde het tydens die
ondersoek vrylik gebloei, hierdie ondersoek moes onder verdowing
uitgevoer word omdat die klaagster getraumatiseer
was en omdat die
besering baie pynlik was. Weens die erns van hierdie beserings is ‘n
spesialis ginekoloog ingeroep en, volgens
haar verslag, het sy ‘n
groot laserasie van die vaginale slymvlies amper tot die cervix
waargeneem, asook ‘n laserasie
van die anus slymvlies wat vier
tot vyf sentimeter lank was. Die peritoneum wat tussen die vagina en
anus geleë is, was ook
geskeur. Sy moes hierdie beserings met
hegsteke behandel. Gelukkig het die klaagster oor die weke goed
herstel. Ongelukkig bly
die klaagster op hierdie stadium nogsteeds
sielkundig baie erg getraumatiseerd.
[8]
The complainant was
9 years old at the time of the commission of the offence. He was a
friend of the complainant’s father
and they resided in the same
vicinity.
[9] The psychological report indicates the extent
to which the complainant has been psychologically injured. She dreams
about what
happened all the time and this makes her very
uncomfortable. She is unable to get over this horrible episode. The
psychological
report states that:
According to
her she never wants to have a husband, and never wants to have a
special relationship with anyone, not even someone
who loves her and
cares for he
r.
[10] The physical injuries sustained by the
complainant included a swollen and bruised face. The doctor was only
able to examine
the extent of the injuries sustained by the
complainant under general anaesthetic. More importantly, a
gynaecologist had to operate
on the complainant in order to attend to
her injuries. There were injuries on both sides of her neck and
behind her left ear which
were consistent with strangulation.
[11] It was contended on behalf of the appellant
that there were substantial and compelling circumstances which
warranted a deviation
from the prescribed minimum sentence in the
present matter. In amplification thereof it was argued that the
learned Judge in the
court below did not take into account the time
spent (almost five years) awaiting trial in custody, that the learned
Judge did
not take into consideration that the appellant was a first
offender and that he was 59 years at the time of the imposition of
the
sentence, and finally that the sentences imposed should have been
ordered to run concurrently.
[
12] In this matter the
Act prescribes that the minimum sentence must be imposed unless the
court is satisfied that substantial and
compelling circumstances
exist that justify a lesser sentence. The issue of what constitutes
substantial and compelling circumstances
was recently dealt with in
the Supreme Court of Appeal in
S v
Vilakazi
2009 (1) SACR 552
(SCA). I
take into consideration the sentiments expressed in that matter. In
applying the principles articulated in that matter
to the facts of
the present case, I have considered the principles that follow.
[13] In imposing the appropriate sentence, a
judicial officer should neither strive after severity, nor should the
judicial officer
surrender to misplaced pity. While not flinching
from firmness, where this is called for, the judicial officer should
approach
the task on hand with a humane and compassionate
understanding of human frailties and the pressure of society which
contribute
to the criminal conduct.
[14] Rape in circumstances such as the present is
an appalling and perverse abuse of male power. It strikes a blow at
the very core
of our claim to be a civilised society. The community
is entitled to demand that those who perform such perverse acts of
terror
be adequately punished and that the punishment reflect the
societal censure. In
S v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA) 345D-E Mahomed CJ held that:
The courts
are under a duty to send a clear message to the accused in rape
cases, to other potential rapists and to the community
that the
courts are determined to protect the equality, dignity and freedom of
all women, and they will show no mercy to those
who seek to invade
those right
s.
[15] A rapist not only violates the victim’s
privacy and personal integrity, but inevitably causes serious
psychological as
well as physical harm in the process. Rape is not
merely a physical assault it is often destructive of the whole
personality of
the victim. A murderer destroys the physical body of
his victim; a rapist degrades the very soul of the helpless female.
The physical
scar may heal up, but the mental scar will always
remain. When a woman is ravished, what is inflicted is not merely
physical injury
but the deep sense of some deathless shame. It is
violation with violence of the private person of a woman. This
constitutes an
outrage by all means. By the very nature of the
offence it is an obnoxious act of the highest order.
[16] The security of persons and their property is
an essential function of the State. This must be achieved through the
instrumentality
of criminal law. In a society ravaged by criminal
conduct and violence such as ours, the living law must find answers
to the new
challenges and it is here that the courts are required to
mould the sentencing system to meet these challenges. The contagion
of
lawlessness undermines social order and then may lay it in ruins.
The protection of society and the stamping out of criminal proclivity

must be the object of law which must be achieved by imposing the
appropriate sentences. Therefore, our law as a corner-stone of
the
edifice of “
order
”
should meet the challenges confronting our society.
[16] In operating the sentencing system, our law
should adopt the corrective machinery or the deterrence based on the
factual matrix.
By dint of deft modulation sentencing processes
should be stern where this is necessary, and be tempered with mercy
where it warrants
this to be necessary. The facts and given
circumstances in each case, the nature of the crime, the manner in
which it was planned
and committed, the motive for the commission of
the crime, the conduct of the accused, the nature of weapons used and
all other
attending circumstances are relevant facts which would
enter into the arena of consideration.
[17] In circumstances such as the present, where
the appellant indicated scant regard for the dignity of his victim,
it will be
a mockery of justice to permit him to escape the extreme
penalty of law when faced with the evidence of such cruelty. To
impose
anything than a lesser punishment as contemplated by our law,
in the circumstances of this case, would be to render the justice

system of our country suspect. Ordinary people in our country will
lose faith in our courts. In matters such as the present, ordinary

people understand and appreciate the language of deterrence more than
the reformative jargon.
[18] The imposition of a sentence without
considering its effect on the social order in many cases may be in
reality a futile exercise.
The social impact of the crime, for
example where it relates to offences against women, children,
kidnapping, misappropriation
of public money, treason and other
offences involving moral turpitude or moral delinquency which have
great impact on social order,
and public interests, cannot be lost
sight of and therefore require exemplary treatment.
[
19] The following
factors are important in the present matter in the consideration of
an appropriate sentence. At the time of the
commission of the offence
the appellant was 54 years of age. He is a first offender. The
appellant completed Standard 4 at school
after which he assisted his
mother. He was mostly employed throughout his life. However, at the
time of his arrest he was unemployed.
The appellant was in custody
for approximately 4 years and 6 months awaiting the finalisation of
his case. The probation officer
who compiled a pre-sentence report
set out that pursuant to an investigation into the personal
circumstances of the appellant,
it appeared that he was aggressive
when under the influence of alcohol. The appellant is a very lonely
person.
[20] In imposing the sentence the learned Judge in
the court below set out the following:
Die
Hooggeregshof van Appèl het besluit dat die vonnis van
lewenslange gevangenisstraf slegs in die ergste gevalle opgelê

behoort te word. As ek die verswarende omstandighede, dit wil sê
die jeugdigheid van die klaagster, die feit dat sy hom vertrou
het,
die mate van geweld en brutaliteit betrokke, die fisiese en
emosionele skade wat berokken is, teen die versagtende omstandighede,

naamlik die beskuldigde se ouderdom en sy skoon rekord oorweeg, is ek
van mening dat geen wesenlike en dwingende omstandighede
in hierdie
geval bestaan nie. Die voorgeskrewe vonnis pas die misdaad en die
misdadiger en hierdie hof is nie by magte om ‘n
mindere vonnis
op te lê ni
e.
[2
1] The imposition of
sentence falls within the direction of a trial court. A court of
appeal may interfere when such discretion
is not properly exercised.
A court of appeal can interfere with a sentence imposed by a trial
court if for example one of the following
exists:
if an irregularity took place during the trial which resulted in a
failure of justice; or
if the court misdirected itself in relation to
the law or the facts of the case which resulted in a failure of
justice; or
if the sentence imposed by the court induces a sense of shock or is
shockingly inappropriate.
[22] A court when considering a sentence should
exercise its discretion judicially and properly, taking into account
all relevant
factors, including the personal circumstances of the
offender, the crime and the interests of society and blend the
sentence with
a measure of mercy according to the circumstances.
These factors are equally relevant in determining the presence of
substantial
and compelling circumstances. In the present matter the
learned Judge in the court below correctly found that there were no
substantial
or compelling circumstances which justified the
imposition of a lesser sentence.
[23] The argument on behalf of the appellant that
the sentences imposed by the learned Judge in the court below ought
to have been
ordered to run concurrently overlooks the provisions of
s 39(2)(a)
of the
Correctional Services Act 111 of 1998
, which reads
as follows:
Subject to the provisions of
paragraph (b), a person who receives more than one sentence of
imprisonment or receives additional
sentences while serving a term of
imprisonment, must serve each such sentence, the one after the
expiration, setting aside or remission
of the other, in such order as
the Commissioner may determine, unless the court specifically directs
otherwise, or unless the court
directs that such sentences shall run
concurrently but –
any determinate sentence of
imprisonment to be served by any person runs concurrent with a life
sentence.
[2
4] Counsel on behalf
of the State correctly submitted that the 10 years imprisonment in
respect of count 2 (indecent assault) will
in any event be served
concurrently with the sentence of life imprisonment imposed in
respect of count 1. In those circumstances,
the learned Judge in the
court below did not commit any irregularity or misdirection insofar
as the sentence was concerned.
[25] In all of the above circumstances the appeal
against sentence is dismissed.
_________________________
M
JAJBHAY
JUDGE OF THE HIGH COURT
I agree
.
_________________________
F H D
VAN OOSTEN
JUDGE OF THE HIGH COURT
I agree.
_________________________
MP
TSOKA
JUDGE OF THE HIGH COURT
Date of Hearing
7
September 2009
Date of Judgment
10
September 2009
For the Appellant Mr J Penton
For the State
Adv
(Ms) M van Heerden
1
Sections 51
and
53
of
the
Criminal Law Amendment Act 105 of 1997
provide:
'
51.
Minimum sentences for certain serious offences.
(1)
Notwithstanding any other law but subject to ss (3) and (6), a High
Court shall, if it has convicted a person of an offence
referred to
in
Part I
of Schedule 2, sentence the person to imprisonment for
life.
(2)
Notwithstanding any other law but subject to ss (3) and (6), a
regional court or a High Court shall
(a)
if it has convicted a person of an offence referred to in
Part II
of
Schedule 2, sentence the person in the case of -
(i)
a first offender, to imprisonment for a period
not less than 15 years;
(ii)
a second offender of any such offence, to
imprisonment for a period not less than 20 years; and
(iii)
a third or subsequent offender of any such
offence, to
imprisonment
for a period not less than 25 years;
(b)
if it has convicted a person of an offence referred to in
Part III
of Schedule 2, sentence the person, in the case of -
(i)
a first offender, to imprisonment for a period
not less than 10 years;
(ii)
a second offender of any such offence, to
imprisonment for a period not less than 15 years; and
(iii)
a third or subsequent offender of any such
offence, to imprisonment for a period not less than 20 years;
and
(c)
if it has convicted a person of an offence referred to in
Part IV
of
Schedule 2, sentence the person, in the case of -
(i)
a first offender, to imprisonment for a period
not less than five years;
(ii)
a second offender of any such offence, to
imprisonment for a
period
not less than seven years; and
(iii)
a third or subsequent offender of any such
offence, to imprisonment for a period not less than 10 years:
Provided
that the maximum sentence that a regional court may impose in terms
of this subsection shall not be more than five years
longer than the
minimum sentence that it may impose in terms of this subsection.
(3)
(a)
If
any court referred to in ss (1) or (2) is satisfied that substantial
and compelling circumstances exist which justify the imposition
of a
lesser sentence than the sentence prescribed in those subsections,
it shall enter those circumstances on the record of the
proceedings
and may thereupon impose such lesser sentence.
(b)
If
any court referred to in ss (1) or (2) decides to
impose
a sentence prescribed in those subsections upon a child who was 16
years of age or older, but under the age of 18 years, at the
time of
the commission of the act which constituted the offence in question,
it shall enter the reasons for its decision on the
record of the
proceedings.
(4)
Any sentence contemplated in this section shall be calculated from
the date of sentence.
(5)
The operation of a sentence imposed in terms of this section shall
not be suspended as contemplated in s 297(4) of the Criminal

Procedure Act 51 of 1977.
(6)
The provisions of this section shall not be applicable in respect
A
of
a child who was under the age of 16 years at the time of the
commission of the act which constituted the offence in question.
(7)
If in the application of this section the age of a child is placed
in issue, the onus shall be on the State to prove the age
of the
child beyond reasonable doubt.
(8)
. . .
53.
Saving.
(1)
Sections 51 and 52 shall, subject to ss (2) and (3), cease to have
effect after the expiry of two years from the commencement
of this
Act.
(2)
The period referred to in ss (1) may be extended by the President,
with the concurrence of Parliament, by proclamation in
the
Gazette
for
one year at a time.
(3)
Any appeal against -
(a)
a conviction of an offence referred to in Schedule 2
of
this Act and a resultant sentence imposed in terms of section 51; or
(b)
a sentence imposed in terms of s 51,
shall
be continued and concluded as if s 51 had at all relevant times been
in operation.'
[5]
Schedule 2 is as follows:
'PART
I
Murder,
when -
(a)
it was planned or premeditated;
(b)
the victim was -
(i)
a law enforcement officer performing his or her
functions as
such,
whether on duty or not; or
(ii)
a person who has given or was likely to give
material evidence with reference to any offence referred
to in
Schedule 1 to the Criminal Procedure Act, 1977 (Act 51 of 1977), at
criminal proceedings in any court;
(c)
the death of the victim was caused by the accused in
F
committing
or attempting to commit or after having committed or attempted to
commit one of the following offences:
(i)
Rape; or
(ii)
robbery with aggravating circumstances; or
(d)
the offence was committed by a person, group of persons or syndicate
acting in the execution or furtherance of a common
purpose
or conspiracy.
Rape
-
(a)
when committed -
(i)
in circumstances where the victim was raped more
than once whether by the accused or by any co-perpetrator
or
accomplice;
(ii)
by more than one person, where such persons acted
in the
execution
of furtherance or a common purpose or conspiracy;
(iii)
by a person who has been convicted of two or more
offences of rape, but has not yet been sentenced in
respect of such
convictions; or
(iv)
by a person, knowing that he has the acquired
immune deficiency syndrome or the human immunodeficiency
virus;
(b)
where the victim -
(i)
is a girl under the age of 16 years;
(ii)
is a physically disabled woman who, due to her
physical disability, is rendered particularly vulnerable;
or
(iii)
is a mentally ill woman as contemplated in
section 1 of the Mental Health Act 18 of 1973; or
(c)
involving the infliction of grievous bodily harm.
PART
III
Rape
in circumstances other than those referred to in Part I.
Indecent
assault on a child under the age of 16 years, involving the
infliction of bodily harm.
Assault
with intent to do grievous bodily harm on a child under the age of
16 years.
G
Any
offence in contravention of s 36 of the Arms and Ammunition Act 75
of 1969, on account of being in possession of more than
1 000 rounds
of ammunition intended for firing in an arm contemplated in s 39(2)
(a)
(i)
of that Act.