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1984
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[1984] ZASCA 165
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S v Bain (276/84) [1984] ZASCA 165; [1985] 1 All SA 479 (A) (30 November 1984)
276/83
MCB
IN THE SUPREME COURT OF SOUTH AFRICA
(AP
PELLATE DIVISION
)
In the matter between:
N
ORMAN HENRI BAIN
Appellant
and
THE
S
TATE
Respondent
CORAM
: WESSELS, JANSEN, VILJOEN, JJA
HEARD
: 26 NOVEMBER
1984
DELIVERED
: 30 NOVEMBER 1984
J U
D G M E N T VILJOEN,
JA
In the magistrate's court for the regional
division of Natal held at Durban the appellant faced
2/.... a charge
2.
a charge of rape but was convicted of attempted
rape and sentenced to five years' imprisonment.
His appeal against both
his conviction and his
sentence to the Natal Provincial Division of the
Supreme Court failed, as did his application before
that Court to appeal
to this Court. With the leave
of this Court, however, the appellant now comes
on
appeal against his sentence only.
The complainant was at the time of
the offence a sixteen year old girl. The appellant's age is reflected on the
charge sheet as 23
years.
The circumstances under which the offence was held
to have been committed appear from the evidence of the complainant as
paraphrased
by the
3/.... magistrate:
3. magistrate:
"On the relevant date at about 2.20 pm she and a friend, Gail, sat on the
verandah of the Malibu Hotel in Durban. They are both students
at a secretarial
college and live in the same hostel. They had come from college and intended
going to the discotheque in the hotel's
Port-O-Call which opens at about 17h30.
They were drinking a beer when they were joined by four men, namely the accused,
Peter Lucas
and two others whose names are unimportant. She did not know any of
them. The men arrived in pairs but she could not say, with certainty,
who
arrived first. But be that as it may, they all conversed and afterwards, at
Peter's request, she accompanied him to a bottle
store where she bought him a
bottle of rum, (he had promised to refund her the money for it). When they got
back to their table on
the verandah the bottle was opened and concealed between
Peter's legs under the table. Cokes were ordered from the hotel and the
men
drank rum and Coke. After the girls had each consumed two beers they were
requested to accompany Peter and the accused to the
latter's flat, which was
nearby, so that the two men could change into suitable clothing for the disco.
They were told that it would
not take long and that
4/....
they
4.
they would return soon. They agreed and en route a bottle of Coke was
purchased by one of the two men. When they arrived at the flat,
which is
situated on the second floor, she and Gail were sober. They had not consumed any
other than the two beers previously mentioned.
She is used to having beer with
her parents in Zambia.
When they arrived at the flat they were invited in and offered rum and Coke.
Gail tasted her drink, found it too strong and left it
alone. The complainant
did not drink hers. The accused and Peter each had two drinks, whereupon the
accused had a bath, whilst the
girls prepared snacks. After the accused had had
his bath they ate the snacks and the men continued drinking. Afterwards the
complainant
used the toilet in the bathroom and when she came out Peter pushed
her back and she heard the accused say he was going to lock them
up in the
bathroom.
In the bathroom Peter kissed, or at least tried to kiss her but she pushed
him away, walked out and returned to the couch where the
others were. Whilst on
the couch Peter again kissed her and started vomiting. He then got up and lay on
the
5/.... bed.
5.
bed. Gail also got up to fetch a glass of water but the accused grabbed hold
of her and pushed her onto the bed where Peter had been
lying a little earlier
on. She heard Gail crying and asking the accused to leave her alone; she was
unable to help Gail because Peter
was then pinning her down on the couch. She
could not see what was happening to Gail who was on the bed behind the couch.
When she
tried to look Peter pulled her shoulders around. Afterwards the accused
came over to the couch and Peter then let go of her and she
noticed that Gail
had left the flat.
During this incident, she says, the accused and Peter were becoming
aggressive, used foul language and: 'were on their way to getting
drunk.' When
she saw that Gail had left she said that she was going to leave but the accused
told her to clear the dishes and called
her a Coolie bitch and enquired whether
she enjoyed being one. That apparently annoyed her, she dropped the dishes which
she had
in her hand and ran towards the front door but Peter got there first and
wouldn't let her out. She begged him to let her go but he
refused so
6/.... she
6.
she sat on the floor by the door. The accused then pulled her up by the hair,
threw her onto the bed and in vulgar language told her
that he was going to have
intercourse with her. He pinned her down on her back with her hands at her sides
and managed to slip out
of his corduroy pants which he was wearing without
underpants. She could see his erect penis. Whilst on top of her he tore her
panties.
She was afraid the accused would hit her if she resisted (She said she
was limp with fear), but when he inserted his penis she felt
a sharp pain in her
vaginal area, panicked and pushed him away. She was very upset at the time and
ran out of the flat along the
corridor. When it appeared that she was running to
a dead-end she turned around, ran in the opposite direction and saw the accused
and Peter standing in the doorway of their flat. She became so frightened that
she contemplated throwing herself over the side. She
then saw Gail, Mr
Cunningham and two other males coming up the stairs to the second floor and ran
towards them. The males spoke to
the accused but she was crying so much at
the
7/.... time
7.
time that she could not hear what was being said. She could see Gail was
angry and heard her yelling at the accused and Peter. She
left her books in the
flat and returned with Gail and the others to Claridges Hotel where she told
Gail that he had pulled up her
skirt and tore her panties which, incidentally,
she threw into the dustbin but did not specifically mention the intercourse part
of the incident because she believed that Gail had guessed what the accused had
done to her.
At the hotel she also met an attorney. He escorted her back to the accused's
flat but when they arrived there there was no one in.
She had no family in
Durban to turn to for advice and it did not occur to her to report the incident
to the police.
The following day Gail telephoned an ex-policeman who accompanied them to the
accused's flat; he was out and, with the caretaker's
assistance, they managed to
get their books which they had left in the flat.
The police were informed of the incident and
8/... she
8.
she was taken to the district surgeon for an examination. She could not remember
clearly whether she did have a bath after the incident
and before the
examination. She seemed to remember sitting on the side of a bath washing
herself without allowing the water to enter
her vaginal
area."
The magistrate convicted the appellant
of attempted
rape on the following basis:
"Only one point requires further consideration and that is whether penetration
had taken place or not. Complainant said that when
accused's penis made contact
with her vaginal area she felt a sharp pain, panicked and pushed him off. It
seems that he ejaculated
on contact which, incidentally, probably explains why
he lost interest in her so soon afterwards. That incident lasted a very short
while and in view of the district surgeon's evidence there is some doubt whether
penetration had taken place. There is, however,
not the slightest doubt that he
had attempted to penetrate her and he is guilty of an attempted
rape."
9/.... In
9-In sentencing the appellant the magistrate
took into account the prevalence of rape in the area.
He said:
"Hardly a day goes by without the local courts dealing with one or more of these
cases. And, as the prosecutor has indicated, they
seem to be on the increase. It
seems that the short terms of imprisonment which have been imposed in the past
have not acted as sufficient
deterrent. Parliament has set its face against this
type of offence and has provided for the death penalty to be imposed in
appropriate
cases."
He found that when the appellant committed
the
offence he knew exactly what he was doing, but
accepted in his favour that at
the time he was
intoxicated to some extent. The magistrate took
into account the circumstances which prevailed
when the appellant
committed the offence. He
addressed the appellant thus:
10/...."You
10.
"You had the complainant at your mercy, pulled her around by the hair, assaulted
her, humiliated her and attempted to rape her. You
are a big strong person and
she had no chance against you. Fortunately you did not succeed in deflowering
her. Had that happened
the court would have taken a much more serious view of
this incident. But it was purely fortuitous that she was not deflowered. Had
you
not ejaculated prematurely she might not have been a virgin
today."
In rape cases, the magistrate pointed
out,
it was not only the victim who had an interest in
the outcome of the case
and if the sentence were
too lenient interested and affected persons
might
take the law in their own hands. He referred to
R v Karg
1961
(1) SA 231(A)
where at 236 Schreiner
JA said:
11/.... "It
11.
"It is not wrong that natural indignation of interested persons and of the
community at large should receive some recognition in
the sentence that the
Courts impose, and it is not irrelevant to bear in mind that if sentences for
serious crimes are too lenient,
the administration of justice may fall into
disrepute and injured persons may incline to take the law into their own
hands."
The magistrate had regard, finally, to
the criminal
record of the appellant and expressed
the view that the court had a duty
towards women
and was obliged to protect them against men like
the
appellant. The only way that could be done
was by imposing an appropriate
sentence, he said, and
held that under all the circumstances a suspended
sentence, as suggested by counsel for the appellant,
would be
inappropriate. The magistrate dealt with
12/....the
12.
the appellant's previous record as follows:
"You are by no means a first offender. Your first brush with the law was on the
27th of April, 1976, when you received five cuts
following a conviction for
theft. Since then you have been convicted of various other offences and your
history shows a singular
lack of discipline. You have become a liability to
society. You committed the present offence whilst the suspended sentence dated
the 20th February, 1979, was hanging over your head. Your counsel has explained
the nature of the crimen injuria offence and the
Court will accept what he said,
namely, that there was no physical involvement in that incident and that what
had happened is that
you had sworn at a woman which led to that conviction and
sentence."
The aims which the magistrate therefore
had in mind
were, in the first instance, deterrence
of the appellant himself and, in view of the prevalence
of rape and, indeed, an increase of rape cases heard
13/.... by the
13. by the courts, deterrence also of others.
In view of
the offence of rape being one of those
offences which evoke public
indignation, and,
further, in view of the character and personality of
the
appellant as revealed by his criminal record
the magistrate added a fair
measure of retribution.
He obviously decided against a suspended
sentence
because the suspended sentence which had previously
been imposed
upon the appellant did not have any
deterrent or corrective effect upon him.
It had
hardly been imposed when the appellant committed
the present
offence of attempted rape.
It was submitted on behalf of the appellant,
firstly, that the magistrate misdirected himself
14/.... in
14.
in over-emphasizing the deterrent and retributive
aspects
of punishment in assessing an appropriate
punishment, secondly, that, regard
being had to
other sentences imposed in similar cases, the
sentence in the
present case was strikingly
disparate and, thirdly, that the court failed
to
take into account certain mitigating factors.
In support of his first submission counsel
referred this Court to the recent decision in
S v Khumalo
a
nd
Others
1984(3) SA 327 where, at
330 D-E Nicholas JA, in the course of his majority
judgment, said:
"In the assessment of an appropriate sentence, regard must be had
inter
alia
to the main purposes of punishment mentioned by Davis
AJA
15/.... in
15.
in R v
Swane
poel
1945 AD 444
and 455 namely deterrent, preventive,
reformative and retributive (see
S v Whitehead
1970 (4) SA 424(A)
at 436
E - F;
S v Rabie
1975 (4) SA 855(A)
at 862).
Deterrence has been described as the 'essential', 'all important', 'paramount'
and 'universally admitted' object of punishment. See
R v
Swanepoel
(supra
at 455). The other objects are accessory."
The learned Judge of Appeal remarked that
in modern
times retribution was considered to be of
lesser importance and referred to the very dictum
which the magistrate
quoted from
R
v
Karg supra,
adding, however, the following
sentence which was
omitted by the magistrate:
"Naturally, righteous anger should not becloud judgment."
Nicolas
JA also referred to the following
16/.... dic
tum
16.
dictu
m by Holmes JA in
s v
R
abi
e 1975(4) 855
at 862 A - B:
"The main purposes of punishment are deterrent, preventive, reformative and
retributive: See
R v Swanepoel
1945 AD 444
at 455. As pointed out in
Gordon
Criminal Law of Scotland
(1967) at
50:
'The retributive theory finds the justification for punishment in a past act, a
wrong which requires punishment or expiation ...
The other theories,
reformative, preventive and deterrent, all find their justification in the
future, in the good that will be produced
as a result of the
punishment.'
It is therefore not surprising that in
R v Karg
1961 (a) SA 231 (A) at
236A Schreiner JA observed that, while the deterrent effect of punishment has
remained as important as ever,
'the retributive aspect has tended to yield ground to the aspect of prevention
and correction.'"
17/... I fully
17. I fully subscribe to these views.
Whereas
formerly, particularly in ancient and
medieval times
and even in the more enlightened period thereafter,
the
emphasis was on retribution, the outlook has
gradually changed. In his De
Jure
Be
lli
ac
Pacis
2 20 4 1 Grotius said:
nemo prudens punit
quia peccatu
m
sed ne
p
eccetur
. But while this is
true, retribution, as
Schreiner JA said, is by
no means absent from the modern approach.
What
importance the component of retribution should be
accorded in a
sentence depends upon the circumstances.
In R v K
arg supra
, for
instance, this Court had to
consider whether mere negligence as opposed
to
recklessness or some high degree of recklessness
18/.... merited
18.
merited a considerable degree of retribution in
the
sentence. And, as was made clear in the same case,
an offence which
evokes indignation from the public
attracts a greater share of the component
of
retribution than an offence which does not. Further
factors to be taken into account in this respect
are the seriousness of the offence and the disposition
and attitude of the offender, particularly to his
victim.
in the present case one of the ingredients
of the
offence was intent and not negligence. The
complainant, a girl of sixteen years was seriously
manhandled by the appellant who showed no remorse afterward:
The magistrate correctly took into account his previous
19/... criminal
19. criminal history which, he said, showed a singular
lack of
discipline and correctly described him as
a liability to society. In my view
the magistrate
did not overemphasize the retributive aspect.
The magistrate has further correctly
applied the
deterrent aims both as far as the
appellant himself as well as others were
concerned.
Considering that his previous sentences had had
no deterrent
effect upon him, as is illustrated
by the commission by him of the present
offence on
26 March 1979,barely a month after a portion of
each of his
sentences imposed on 20 February 1979 for
crimen injuria
, assault on a
White male and a police
officer and malicious injury to property was
suspended
20/.... for
20.
for three years on various conditions, the magistrate has not erred as far as
deterrence of himself was concerned. The prevalence
of the offence and the
increase thereof was no doubt taken into account by the magistrate in the
context of his aim to deter not
only the appellant himself but also others. For
that reason it does not serve any purpose, as appellant's counsel has invited
this
Court to do, to compare other sentences imposed for the same offence. Of
course, a comparison of sentences meted out in other cases
may serve as a guide
to ensure some proportionality in. sentences, but it is only a rough guide
because there are
so many factors, usefully collected under the term
21/.... individualisation
21.
'individualisation', to be taken into account
that no tariff or standard sentence can be maintained.
One such factor is the personal circumstances of the offender. In the present
case it was in fact submitted that the magistrate did
not sufficiently take into
account the appellant's personal circumstances. From the record very little
appears as to the appellant's
employment, his future prospects of advancement,
the effect which a prison sentence was likely to have upon his life and other
such
circumstances. He was represented at the trial and it may be assumed that
if any such personal circumstances which were likely to
22/.... affect
22.
affect the sentence did exist it would have been
brought to the notice of the magistrate.
It was finally submitted that the
magistrate misdirected himself and
failed in
his duty when he ignored factors arising from
the State's case
which were mitigating in respect
of the seriousness of the crime and
therefore of
sentence. The burden of the submission is that
the conduct of
the complainant and her friend was
such as to encourage the appellant and his
friend
to pursue their aim to have sexual intercourse
with the girls. It was
submitted that in the
circumstances which prevailed the complainant
must
have known that the visit to the flat would be an
23/....opportunity
23. opportunity Cor amorous pursuits and the inference
should be drawn, cousel urged, that once the girls
had settled at the flat
there was no longer any
question of going to the disco. It was
finally
submitted that the rape was not (for whatever
reason) considered
in a serious light by the
complainant because she did not avail herself
of
the first opportunity to tell at least her companion
about the attempted rape. Her first concern seemed
to have been the retrieval of her schoolbooks even
when the person she had recourse to was a person of
some standing an attorney.
The magistrate dealt with these submissions
which were addressed to him in the context of the
24/....conviction
24. conviction. He described the complainant as an
intelligent and respectable young girl without
any sexual experience who
left the impression that
she was shy to talk about sexual matters. The
magistrate referred to the
criticism levelled at
her for not screaming when the appellant was
supposed
to have assaulted her. He believed her explanation
that she was afraid of the appellant (limp with
fear), and that she did not think of that at the
time. In this connection it must be borne in mind
that she was only sixteen years old and that the
accused was a powerful man who could easily subdue her,
said the magistrate. It must have been obvious to
her that he was determined to have sexual intercourse
25/.... with
25. with her and that he would not tolerate any
resistance, he added. It is true, he proceeded,
that she did not tell her friend Gail about the
sexual act but that might in his view be ascribed
to the fact that she was too shy to mention it.
"It is an extremely
personal matter, possibly the
worst form of invasion of a woman's privacy, and
her reluctance to mention it is understandable.
It is for that very reason that many rape victims
refuse to report a rape. But of course it will be
recalled that she did say that she believed that
Gail had guessed what had happened to her," he said
in his judgment.
I fully agree with the magistrate and as
26/.... far
26.
far as the impression the complainant made on
the
magistrate is concerned, it must be borne in mind that he saw the complainant
and formed an impression of her personality and
character. He was, therefore,
the best judge. The two girls might have been too trusting. The appellant, for
all his long criminal
record, was still young at the time and the girls were
probably looking forward to an enjoyable evening at the disco with two pleasant
young male friends. They might initially have created the impression
that,morally, they were not too fastidious but the appellant
and his companion
must soon have realised in the flat, when they
27/.... tried
27.
tried to force their amorous attentions on the
girls, that
the complainant and her companion
were not amenable to their overtures and
the
appellant should have desisted. Instead he
started to manhandle the
complainant and tried
to achieve his object by forcing her to submit.
It is a heavy sentence but the magistrate furnished good reasons for imposing
the sentence. In my view he has not erred in any respect
and the sentence is not
so severe as to lead to the conclusion that no reasonable court would have
imposed it.
The appeal is dismissed.
JUDGE OF APPEAL