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[2008] ZAWCHC 251
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Hess and Another v S (A596/2005) [2008] ZAWCHC 251 (22 August 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAFE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NUMBER
:
A596/2005
DATE
:
22
AUGUST 2008
In the matter between:
1.
EON
HESS
1
st
APPELLANT
2.
BRADLEY
NOMDOE
2
nd
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
FOURIE,
J
First
appellant and four co-accused appeared tn the Regional Court at
Bellville on two charges of robbery, one of kidnapping,
one of
attempted rape and one of rape. First appellant and his co-accused
pleaded not guilty, but after hearing evidence, the
regional
magistrate convicted first appellant on afl five charges and on 21
September 2001 he was sentenced as follows: The two
counts of
robbery were taken together for purposes of sentence and a sentence
of ten years imprisonment was imposed. The counts
of kidnapping,
attempted rape and rape were taken together for purposes of sentence
and in respect thereof, a sentence of 15
years imprisonment was
imposed.
These
sentences were not ordered to run concurrently, with the result that
an effective term of 25 years imprisonment was imposed.
On 2
November 2007 the court
a
quo
granted
first appellant leave to appeal against the sentence imposed by the
regional magistrate. This appeal is accordingly not
directed against
first appellant's convictions, but at the hearing of the appeal we
raised the question whether first appellant
was correctly convicted
on count 5
r
i.e. the charge of rape. The evidence shows that the complainant,
Sophia Manual, was only raped by accused number 6, who had
penetrated her vagina with his penis. Although first appellant had
also threatened to rape her, he did not carry out this threat.
I
should add that prior to being raped, this complainant was sexually
assaulted by a number of the accused, including first appellant,
and
as I have mentioned, first appellant was accordingly found guilty on
count 4, i.e. of attempted rape.
However,
in the process of sexually assaulting the complainant, first
appellant did not have intercourse with her, It is clear
from the
magistrate's judgement on the merits, that he convicted first
appellant of rape on the basis of a common purpose that
he had
shared with the other accused, including accused number 6, who had
actually raped the complainant.
In
my view first appellant's conviction of rape is bad in law, as the
common purpose doctrine is not applicable to crimes, such
as rape,
that can be committed only through the instrumentality of a person's
own body. See in this regard
Snyman
,
Criminal
Law
4
th
Edition, page 268 and the authorities there cited.
It
follows, in my view, that first appellant was, at best for the
State, an accomplice to the rape committed by accused number
6. He
was not only present on the scene, but actively assisted in subduing
the complainant. However, first appellant was not
charged as an
accomplice to the rape. As explained by
Burchell
.
Principles
of Criminal Law
,
3
rd
Edition, page 602, an accomplice commits a substantive crime in his
or her own right. The Criminal Procedure Act does not make
provision
for a competent verdict of being an accomplice where the elements of
a crime, such as rape in this instance, have not
been proved, but
the elements of accomplice liability have been established.
In
particular, Section 261 of the Criminal Procedure Act, which lists
the competent alternative verdicts on a charge of rape,
does not
include liability as an accomplice to rape. It follows that the
conviction of first appellant on the charge of rape
should be
set aside. This we are empowered to do,
notwithstanding the absence of an appeal against conviction,
by
exercising our powers of special review in terms of Section 304(4)
of the Criminal Procedure Act.
Returning
to the question of sentence, it is trite that a court of appeal
should only interfere with a sentence imposed by a lower
court if it
is satisfied that the sentence discretion has been exercised
improperly or unreasonably, or if there has been a material
misdirection on the part of the trial court. In my view the
conviction of first appellant on the charge of rape and the sentence
imposed upon him in regard thereto, constitute, for the reasons
already furnished, a misdirection which entitles this Court to
interfere with the sentence handed down by the regional magistrate.
In
addition, I am of the view that the following material factors
should play a role in determining a suitable sentence. At the
time
of the commission of these offences, first appellant was 16 years
and three months old. The regional court found that to
a great
extent first appellant had, together with accused number 4, acted
under the influence of accused numbers 5 and 6. This
is clear from
the record of the proceedings in the court a
quo.
It
also has to be taken into account that first appellant was five days
shy of his 19
th
birthday when he was sentenced. He had one previous conviction for
theft, which had been committed when he was 15 years old.
In
addition thereto, it appears from the record that he had been in
prison as a trial awaiting prisoner for approximately 32
months
before being sentenced.
I
have no doubt that first appellant's youthfulness at the time of the
commission of these offences, as well as the influence
which his
older co-accused obviously had over him
h
constitute important mitigating factors. On the other hand, however,
the conduct and measure of participation of first appellant
in these
heinous crimes, should not be under-emphasised.
By
way of comparison, it
is
clear
that his role and measure of participation by far exceeded that of
his other youthful co-accused number 4, who was 17 years
old at the
time of the commission of these offences. First appellant did not
only wield a knife, but threatened the complainants
and assisted in
tying them up. He also assisted in the robberies by dispossessing
John van Wyk of his firearm holster and taking
his wristwatch.
In
addition, he sexually assaulted the female complainant by straddling
her and inserting his penis between her bare legs. He
was,
therefore, far from being a fallen angel and although he was young
and under the influence of the older accused, he has,
to a certain
extent, to take responsibility for his outrageous conduct that
evening.
I
should,
however, in his favour say that when accused number 6 asked him for
his knife to enable accused number 6 to attack the
complainants,
first appellant refused and probably saved the complainants from
further harm.
In
my view the crimes committed were of such a serious nature that the
magistrate correctly concluded that direct imprisonment
was the only
suitable sentencing option. 1 am, however, of the view that in the
light of the mitigating circumstances to which
I have referred, an
effective of sentence of 25 years imprisonment does induce a sense
of shock, especially if it is compared
to the effective sentence of
25 years direct imprisonment received by accused number 6, whose
blameworthiness by far exceeded
that of first appeMant's and who had
also raped the complainant.
After
considering all the relevant factors and bearing in mind that the
conviction of rape falls to be set aside, I am of the
view that an
effective sentence in the order of 12 years imprisonment would be a
suitable sentence. In the result I would uphold
the appeal and make
the following order:
1.
The first appellant's conviction on count 5, i.e. the charge
of rape, is set aside. The remainder of the convictions
are
confirmed.
2.
The sentences imposed upon first appellant are set aside and the
following substituted therefor:
"(a)
Aanklagte 1 en 2 word saamgeneem vir vonnisdoeleindes en tien jaar
gevangenisstraf word ten aansien daarvan opgele.
Aanklagte
3 en 4 word saamgeneem vir vonnisdoeleindes en tien jaar
gevangenisstraf word ten aansien daarvan opgele.
1)
Dit word getas dat agt jaar van die gevangenisstraf opgele ten
aansien van aanklagte 3 en 4, samelopend uitgedien word met
die
gevangenisstraf opgele ten aansien van aanklagte 1 en 2. Die
effektiewe termyn van gevangenisstraf is derhalwe 12 jaar.
Die
voormelde vonnisse word ingevolge artikel 282 van die
Strafproseswet no. 51/1977, terugdateer tot 21 September 2001."
This
brings me to the appeal of second appellant. He appeared as
accused number 4 in the Regional Court at Bellville on
the same
charges as first appellant. He pleaded not guilty, but after hearing
evidence, the regional magistrate convicted him
on the two charges
of robbery with aggravating circumstances and the charge of
kidnapping. He was acquitted on the remaining
charges.
On
21 September 2001 he was sentenced to ten years imprisonment on the
two robbery charges, which were taken together for purposes
of
sentence and an additional ten years on the charge of kidnapping.
These sentences were not ordered to run concurrently, with
the
result that an effective term of 20 years imprisonment was imposed.
On 2 November 2007 the court a
quo
granted
second appellant leave to appeal against the sentences imposed by
the regional magistrate.
ft
is trite that a court of appeal should not interfere with the
sentence imposed by another court, unless it is satisfied that
the
sentence discretion has been exercised improperly or unreasonably. I
should add that our courts of appeal are also prepared
to interfere
with sentences imposed upon different accused appearing in the same
trial, on the ground of a disturbing disparity
between such
sentences. See
S
v Marx
1989(1}
SA 222 (A) at 225 G and
Hansen
v Regional Magistrate, Cape Town & Another
1999(2) SACR 430 (C) at
432
a to f.
At
the time of the commission of these offences second appellant was 17
years old. The regional court found that to a great extent
second
appellant had, in the commission of the offences, acted under the
influence of his co-accused numbers 5 and 6. It is also
clear from
the evidence that second appellant had played a very limited role,
and in fact left the scene before his co-accused
proceeded to
sexually assault and rape the one complainant. He played no active
role in the kidnapping of the two complainants
and the only evidence
of his involvement in the robberies was that he had pushed the one
complainant against the vehicle and
warned him "not to try
anything". It was then that accused number 2 had taken some
money from the pocket of this complainant.
The
magistrate did however find, correctly in my view, that second
appellant and his co-accused had the necessary common purpose
to rob
and kidnap the complainants. Second appellant was a first offender,
aged 20 years at the time when he was sentenced. In
addition, it
should be borne in mind that he had been in prison for approximately
32 months as a tria! awaiting prisoner. In
the circumstances, it was
submitted on his behalf that the effective sentence of 20 years
imprisonment induces a sense of shock
and that the magistrate ought,
in any event, to have obtained a probation officer's report
regarding the personal circumstances
of second appellant, before
sentencing him.,
I
do not agree with the submission that a probation officer's report
ought to have been obtained before sentencing the second
appellant.
As I have mentioned, he was already 20 years old at the time of the
imposition of sentence and, therefore, not a juvenile.
The fact that
he was only 17 years old at the time of the commission of the
offences, is a mitigating factor which was taken
into account by the
magistrate. I am, however, in agreement with the submission that in
the circumstances of this case, the sentence
imposed upon first
appellant induces a sense of shock.
I
have alluded to the mitigating circumstances, which, viewed
collectively, in my opinion justify the imposition of an effective
term of imprisonment substantially less than the 20 years imposed by
the magistrate. There is also, in my opinion, a disturbing
disparity
between the sentence imposed upon second appellant and, for example,
the sentenced of accused number 6, who was found
guilty on all five
counts and sentenced to an effective term of imprisonment of 25
years.
The
evidence shows that accused number 6 did not only play a major role
in the robberies and kidnapping, but also took the leading
role in
indecently assaulting and raping the one complainant. The evidence
further shows that accused number 6 was armed with
a firearm and had
no hesitation in physically assaulting the complainants. The second
appellant, on the other hand, as I have
indicated, played a far
lesser role and was hardly actively involved in the robbing and
kidnapping of the complainants. His role
also ended prior to the
sexual assaults being perpetrated. This notwithstanding, his
effective sentence of imprisonment is only
five years less than that
of accused number 6.
In
the circumstances, I conclude that the magistrate exercised his
sentencing discretion unreasonably and that this Court should
interfere. In my view the period of effective imprisonment imposed
upon second appellant should be substantially reduced. In
the
result, 1 would uphold the appeal and make the following order:
The
second appellant's convictions are confirmed, but the sentences
imposed are set aside and the following substituted therefor:
"1.
Aanklagte 1 en 2 word saamgeneem vir vonnisdoeleindes
en agt jaar gevangenisstraf word ten aansien daarvan
opgele.
2.
Op aanklag 3 word gevangenisstraf van agt jaar opgele.
3.
Dit word gelas dat die gevangenisstraf opgele ten aansien van
aanklag 3, samelopend uitgedien word met die gevangenisstraf
opgele
ten aansien van aanklagte 1 en 2. Die effektiewe termyn van
gevangenisstraf is derhalwe agt jaar.
4.
Die voormelde vonnisse word ingevolge artikel 282 van die
Strafproseswet 51/1977 terugdateer tot 21 September 2001."
Ek
stem saam.
BOTHA,
A J
It
is ordered accordingly,
FOURIE,
J