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2008
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[2008] ZAFSHC 92
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Mokhachane v S [2008] ZAFSHC 92 (15 September 2008)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Appeal No.: A29/2008
In the appeal between:
PIET SETHUNYA
MOKHACHANE
Appellant
and
THE STATE
Respondent
_____________________________________________________
CORAM:
RAMPAI, J
et
MABESELE, AJ
_____________________________________________________
JUDGMENT:
RAMPAI, J
HEARD ON:
15 SEPTEMBER 2008
_____________________________________________________
DELIVERED ON:
15 SEPTEMBER 2008
_____________________________________________________
[1] The appellant was
tried in the Botshabelo Regional Court where he pleaded not guilty on
the 16
th
January 2008 to the charge. Notwithstanding his plea he was
convicted on the 15 February 2007 on the charge of rape. He
committed
the crime at Botshabelo on 9
th
September 2006. He was sentenced to 10 years imprisonment on the 15
February 2007.
[2] He now comes to us on
appeal against the sentence only. The main ground of his appeal is
that the court below erred in finding
that no substantial and
compelling circumstances existed to justify any deviation from the
prescribed minimum sentence.
[3] The respondent
opposes the appeal. The sentence is therefore supported. The main
ground of resistance is that the court below
correctly found that no
substantial and compelling circumstances existed to justify the
imposition of any sentence other than the
prescribed minimum sentence
of 10 years imprisonment.
[4] In sentencing the
appellant the trial court took the following circumstances as
mitigating factors:
●
that he was 25
years at the time that he committed the offence;
●
that the highest
level of education he attained was grade twelve;
●
that he was an
unmarried man;
●
that he had no
dependent minor children;
●
that he was
gainfully employed on a mine where he earned R1 800,00 per month;
●
that he
financially supported his unemployed mother; and
●
that he was a
first offender.
[5] The court also took
into account the following circumstances as aggravating factors:
●
that the
appellant attacked and raped the victim in her own house;
●
that he raped a
woman who could have been his mother;
●
that he raped her
in her own bed;
●
that rape was a
serious offence; and
●
that the crime of
rape was prevalent in the jurisdiction of the court below.
[6] Mr. Makhene, counsel
for the appellant, submitted that the court below misdirected itself
by overemphasising two of the aggravating
factors, namely the
seriousness of the crime as well as the prevalence thereof.
[7] Mr. Botha, counsel
for the respondent, differed. He submitted that all the material
facts and factors relevant to sentencing
were properly taking into
account in a balance manner by the court in considering what an
appropriate punishment should be.
[8] On page 89: 2 - 8 the
learned magistrate said:
“
You are also a first offender,
but rape is a very serious offence and prevalent in this particular
area and to put it bluntly, it
is annoying. There is no day that
goes by without a case of rape on this court’s roll. Apart
from your case today there
is one, two, three cases on the roll of
rape. And there are always marches all over the country against this
sexual abuse of women
and children.”
[9] Still op page 89: 9 –
14 the trial court continued as follows:
“
The government is also using
each and every media available to teach people about the abuse of
women and children and appeals to
the communities to stop it. And
because of this alarming rate of this offence the Legislature then
enacted the minimum sentence
legislation to stop or to curb this type
of an abuse.”
[10] Mr. Makhene argued
that the aforegoing passages show that the learned magistrate was
angry and emotionally during the course
of sentencing the appellant.
Such anger and emotions, counsel argued further, so beclouded the
mind or judgment of the court that
it did not take into account:
●
that although
rape is a violent crime, the complainant did not suffer any genital
or physical injuries;
●
that although the
knife was blandished, it was never used against the complainant;
●
that there was no
evidence of the rape, having had any dramatic or psychological
effects on the complainant;
●
that the
appellant was relatively young; and
●
that he had a
clean criminal record.
[11] As regards physical
injuries, it is so that the victim did not sustain any physical
injuries. However, the emotional injury
to the rape victim should
never be underestimated. I have always have reservations about the
tendency by lawyers to rely on the
absence of physical injuries in a
rape case as such a weighty mitigating factor as to be always treated
or regarded as an important
ingredient of the substantial and
compelling circumstances. This is so because rape is not just a mere
physical attack of the
body. It is fundamentally a devastating
attack of the soul. As one judge once put it, a rapist does not kill
his victim but
kills her soul. This is particularly so where the
rapist is armed, as was the case here.
[12] It is so that there
is no evidence of the psychological effects of the rape on the
victim. This is precisely where the courts
must be careful. Lack of
evidence does not necessary mean absence of psychological trauma. It
may and often does simply mean
that the victim, on account of her low
social standing in the community coupled with her own modest
socio-economic means –
was not psychologically examined, or
assessed and counselled in order to determine whether or not the
victim has suffered any permanent
traumatic effects. Where there is
no expert evidence, the adverse impact of the incident of rape on the
victim remains unknown.
Because it is an unknown factor, it cannot
properly be relied upon either as a mitigating factor or aggravating
factor. It is
a neutral factor. We may debate about its subsequent
effects on the victim, but no objective person can ever deny that
ex
tempore
rape must be a traumatic experience to any victim.
[13] Rape is a violent
crime. The appellant was armed and dangerous. Mr. Makhene
contended, and correctly so, that the law concerns
itself with facts
and not suppositions. However, that is not where it all ends. The
law also concerns itself with the probabilities
in the circumstances
of each case. It is a fact that the appellant did not stab the
victim. However, I am of the view that had
the victim offered any
serious resistance, the appellant would probably have used the knife
and would probably have inflicted injuries
on her. He would probably
not merely have brandished it. From experience we know that rape
victims sometimes get killed by their
rapists in the hope that, by
doing so, they minimised the chances of being arrested, prosecuted
and jailed. Quite often, the real
agony of the victim while the rape
is going on is often forgotten. The agonising fear of death which
the victim endures for the
entire duration of the rape is also often
forgotten - because she was not stabbed or the knife was never used.
[14] Despite his relative
youth and clean criminal slate, the gravity of the crime he has
committed and its prevalence in the region
of the trial court, the
province and the country as a whole cannot and should not be ignored.
The appellant forced his way into
the victim’s house in the
evening in question, he was brandishing a knife, he threatened to
kill her and at knife-point he
raped her in her own bed. The victim
was a 45 year old lady, older than the appellant’s own mother.
His mother is a year
younger than the victim.
[15] One’s home is
supposed to be one’s secret refuge and fortress. It is
supposed to be one’s safest place under
the sun. The learned
magistrate, mindful of the appellant’s status as a first
offender, and his relative youth, which are
ordinarily strong
mitigating factors, turned to the other side of the coin. She quite
correctly balanced the scale by referring
to the legitimate rights of
women to enjoy the peace and tranquillity of their homes without
fear, apprehension or insecurity which
constantly diminishes the
quality and enjoyment of their lives as Mahomed CJ observed in
S
v CHAPMAN
[1997] ZASCA 45
;
1997 (2) SACR 3
SCA at 5b – e.
[16] This sort of crime
where citizens, particularly woman, are violently victimised in their
own sanctuaries epitomizes the worrying
and rapidly rising tide of
lawlessness in our society. These sorts of criminal enterprises
where violent and armed rapists or
robbers forage deep into the
people’s homes and lives have to be eradicated. In the
circumstances of the instant case, the
rape incident of a victim so
old by a man so young must have been an extremely humiliating and
degrading experience. That together
with the natural indignation of
our society are strongly aggravating factors. And this is where I
differ with the magistrate.
In my view this is an appropriate case
where the natural indignation of our society has to be taken into
account in aggravation
of sentence.
[17] In
S
v MALGAS
2001 (1) SACR 469
at paragraph 12 Marais JA said the following about
the restrictive appellate limits we have to observe in hearing
appeals:
“
A court exercising appellate
jurisdiction cannot, in the absence of material misdirection by the
trial court, approach the question
of sentence as if it were the
trial court and then substitute the sentence arrived at by it simply
because it prefers it. To do
so would be to usurp the sentencing
discretion of the trial court.”
[18] I am not persuaded
that the trial court materially misdirected itself on the facts or on
the law in sentencing the appellant.
It seems to me that the trial
court took into account all the relevant factors and material factors
in a balanced manner in considering
an appropriate sentence. I am
not persuaded that anything aggravating was over-emphasised or that
anything mitigating was downplayed
at the expense of the appellant.
Nothing significant turns on the contention that righteous anger and
subjective emotions beclouded
the judgement of the trial court. As I
see it, the trial court committed no material misdirection which
vitiated its sentencing
discretion. It is entirely in the discretion
of the trial court to determine which factors are really relevant to
sentencing and
what weight to be attached to such factors.
S
v KIBIDO
1998 (2) SACR 213
SCA at 216 g – j per Olivier JA.
[19] In the absence of a
material misdirection we, sitting as we are in an appellate mode, are
not at liberty to interfere with
the sentencing discretion entrusted
to the trial court. We cannot substitute such a sentence because we
would have exercised such
discretion differently. The finding of the
trial court that, in all the circumstances peculiar and favourable to
the appellant,
no substantial compelling circumstances existed to
justify a punishment less than the prescribed minimum sentence of 10
years imprisonment
is a finding which I, on appeal, cannot disturb or
upset. I am not persuaded that the mitigating factors individually
or collectively
considered are objectively compelling to justify any
deviation. In the circumstances, the sentence imposed is not
shockingly inappropriate.
Therefore I would uphold the sentence.
[20] Accordingly I make
the following order:
20.1 The appeal fails.
20.2 The conviction
stands.
20.3 The sentence is
confirmed.
______________
M. H. RAMPAI, J
I
concur.
___________________
M. J. MABESELE, AJ
On behalf of the
appellant: Adv. J. S. Makhene
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On behalf of the
respondent: Adv. J. Botha
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
/em