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[2008] ZAWCHC 136
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Brown v S (A458/2007) [2008] ZAWCHC 136 (8 February 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE NO
:
A458/2007
DATE
:
8
FEBRUARY 2008
In
the matter between:
WILLIAM
BROWN
Appellant
and
THE
STATE
Respondent
JUDGMENT
DESAI.
J
.
[1]
The appellant was convicted in the Regional Court at Strand on a
charge of rape and he was sentenced to 15 years' imprisonment.
With
the leave of the trial Court, he appeals to this Court both against
his conviction and sentence.
[2]
At the commencement of the trial appellant's attorney furnished a
plea explanation. It was to the following effect:
"En
op die klagte van die verkragting sal oris toestemming pleit Agbare.
Ons gaan vra vir die Staat om al die feite te bewys".
The
fact that sexual intercourse had taken place as alleged by the State
was not in issue. That much is apparent from the plea explanation
and
also appellant's later testimony. The factual dispute was with regard
to whether the sex had taken place consensually.
[3]
In the circumstances, the debate with regard to identity is spurious.
Whether the complainant only saw his shoes is largely
irrelevant.
Moreover, the appellant is the complainant's brother-in-law, he is
married to her sister, and they appear to have been
in regular
contact. The prospects of an incorrect identification are, in any
event, unlikefy.
[4]
Appellants defence of consent is equally unconvincing. The
complainant's version is to some extent corroborated by the medical
evidence. Then there ts the appellant's version that the sexual act
was actually witnessed by two other persons who threatened
to expose
him but later laughed about the incident. Appellant, without any
explanation, failed to call these individuals to confirm
his version.
Furthermore, the appellant's explanation with regard to when the sex
had occurred is also open to considerable doubt.
[5]
The magistrate fairly and properly rejected his version. That
conclusion cannot be faulted. Ms L
Joubert,
who appeared before us on behalf of the appellant, did not direct our
attention to any significant misdirection in respect of the
magistrate's factual findings relating to the conviction. Looking at
the evidence in its totality, I am unpersuaded that there
is any real
basis for a finding in favor of the appellant.
[6]
The sentence appears to be harsh, especially in the light of the
appellant's personal circumstances and the harm this incident
could
possibly cause to the family relations amongst the parties. That may
not be a proper basis for us to interfere with the sentence
imposed
by the magistrate.
[7]
The more important misdirection relates to the minimum sentence
provisions applicable in such cases. The appellant has a previous
conviction for rape. This factor resulted in the sentence of 15
years' imprisonment. Had it not been for the earlier conviction
the
magistrate probably would have imposed a lesser sentence In my view,
the magistrate lost sight of two compelling and substantial
factors
which have a bearing upon that sentence. The earlier offence was
committed almost 20 years ago. Although the appellant
has aEso
committed other offences since then, he has not until now been
convicted of any sexual offence. Secondly, the appellant
was very
young, in fact a teenager, when the earlier offence was committed.
[8]
Rape, as the magistrate has correctly pointed out, is a very serious
offence, it involves an attack upon the person and dignity
of a woman
and severe penalties would, in most circumstances, be entirely
appropriate. While we are accordingly at liberty to reconsider
the
sentence for the reasons I have already furnished, a long term of
imprisonment is unavoidable.
[9]
In the result the appellant's conviction is confirmed. His sentence
is set aside and substituted with the following:
"10
years' imprisonment".
DESAI,
J
MANCA,
AJ
:
I agree.
MANCA,
AJ