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[2007] ZAWCHC 97
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S v Ngcobo (SS225/2006) [2007] ZAWCHC 97 (21 September 2007)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
:
SS225/2006
DATE
:
2007-09-21
In
the matter between;
THE
STATE
and
MELIKHAYA
NGCOBO
SENTENCE
MULLER,
A J
:
The
accused has been convicted of the murder of Mrs Bisset. of the rape
of Mrs Bisset, and of robbery with aggravating circumstances.
Yesterday
we heard submissions on behalf of both the State and the defence in
relation to an appropriate sentence to be imposed
for each of these
offences.
The
accused has previously been convicted of three offences, namely the
offence of abuse of a dependence-inducing drug.
on
the 13
,h
of October 1994, for which he was sentenced to 30 days imprisonment
or R100 fine; of the offence of housebreaking with intent to
steal
and theft, committed on the 9
th
of November 2001, for which he received a sentence of 18 months
imprisonment. On the 12
th
of August 2002, however, he was placed under correctional supervision
for a period of 12 months. On the 16
th
of April 2003 the accused committed an act of theft, for which he was
convicted on the 17
th
of March 2004. For that offence, which was committed some five days
after the offences committed by the accused at 40 Lochiel Way
on the
11
,h
of April 2003. the accused was sentenced to five years imprisonment.
Each
of the offences for which the accused has been convicted in this
court is mentioned in section 51 of the General Law Amendment
Act 105
of 1997. In terms of section 51(1) of that Act, a High Court shall,
if it has convicted a person of an offence of murder,
inter alia,
sentence that person to imprisonment for life. Section 51(1) is
subject, however, to section 51(3), which reads as
follows:
"If
any Court referred to in subsection (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-Subject to
a finding of substantial and compelling circumstances,
it is not only
murder which enjoins the Court to Court to impose a life sentence,
but also rape, in certain circumstances.
Of
relevance in these proceedings is the requirement in part 2 of the
second schedule to the Act, which provides that a minimum
sentence of
life imprisonment, in the absence of substantial and compelling
circumstances, is required when rape is committed,
involving the
infliction of grievous bodily harm.
In
the case of murder, the life sentence is obligatory where, inter
alia, the death of the victim was caused by the accused in
committing, or attempting to commit, or after having committed, or
attempted to commit one of the following offences. Firstly, rape;
and
secondly, robbery with aggravating circumstances. Section 51(5)
provides that the operation of a sentence imposed in terms
of the
section shall not be suspended, as contemplated in
section 297(4)
of
the
Criminal Procedure Act 51 of 1977
. Clearly, the
Criminal Law
Amendment
Act of 1997
was a response by the legislature to the spate of violent
crime which has swept the country.
Parts 2
and
3
of the schedule to
the Act provide for lesser minimum sentences for convictions of rape
and murder in circumstances which do not
fall within those mentioned
in part 1. And so, section 51(2)(b), read with the third part of the
second schedule, requires the
imposition of a minimum sentence of 10
years for rape, in the case of a first offender, in the absence of
substantial and compelling
circumstances, and where the rape does not
fall within the categories listed in part 1.
As
regards the conviction of robbery, section 51(2)(a), read with part 2
of the schedule, requires the imposition of a minimum sentence
of 15
years for a first offender convicted of robbery with aggravating
circumstances, or where the taking of a motor vehicle is
involved.
A
minimum sentence of life imprisonment for the accused's conviction of
murder, in this case, absent substantial and compelling
circumstances, is clearly prescribed in terms of part 1 of the
schedule. Although there is insufficient evidence for us to find
that
the murder was planned and premeditated, as contemplated in the
schedule, it clearly was caused, or, at least, occurred in
the
commission of the crimes of rape and robbery with aggravating
circumstances.
Those
circumstances,
accordingly, trigger the minimum sentence of life imprisonment,
unless we conclude that substantial and compelling
circumstances are
present which entitle me to reduce the sentence, in my discretion.
Whether
a similar minimum sentence of life imprisonment is required in
respect of the accused's conviction of rape - again absent
substantial and compelling circumstances - occasions more difficulty.
The only category mentioned in part 1 of the second schedule
which
might trigger such a minimum sentence in the case of the conviction
for rape, is if it involved the infliction of grievous
bodily harm.
Clearly,
the accused launched a vicious and a brutal attack on Mrs Bisset. Of
that there can be no doubt. What the evidence does
not reveal
clearly, however, is whether the attack, and the rape, and the
strangulation of Mrs Bisset, which led to her death,
occurred as one
continuous assault, or whether, for example, the rape of Mrs Bisset
occurred first, and she was only later assaulted,
and sustained the
manifold and severe injuries to which Dr Liebenberg testified. The
injuries sustained by Mrs Bisset were not
only described by Dr
Liebenberg, but they are also graphically illustrated by the
photographs taken on the scene on the 12
th
of April, as well as by Dr Liebenberg during her autopsy
I
mentioned that the evidence does not tell us precisely how the
assaults progressed, because although part 1 of the second schedule
prescribes a minimum sentence of life for rape involving the
infliction of grievous bodily harm, the question is whether applying
the minimum sentence requirements of the Act to the rape of Mrs
Bisset in the present case, would not perhaps amount to an
impermissible
duplication of sentence-Prior to the passing of the
minimum sentence legislation in 1977, the common law warned against
the danger
of duplicating sentences in cases of this kind, a warning
which is illustrated by the instructive case of
S
v S
1987(2) SA 307 (A), a decision of the Appeal Court. The facts of that
case have certain similarities to the facts of the present
case. The
appellant accused in that case, was a 38-year-old male who was
convicted of the rape of a 70-year-old woman. As in the
present case,
the rape occurred after he had entered her home, and, as in the
present case, the assault which he perpetrated on
the victim, caused
her death. Because the Trial Court could not be certain that the
death had been caused intentionally, he was
convicted of culpable
homicide, and not of murder. The Trial Court sentenced the accused to
a term of imprisonment on the charge
of culpable homicide, but to
death on the charge of rape. The accused, in that case, had two
previous convictions for rape, and
the rape and the negligent killing
of his victim had occurred on the same day as his release from prison
on another charge. In
the course of his judgment in passing sentence,
the Judge a
quo
made
the following remarks - and I quote from page 311, opposite the
letter, I, to 312, opposite the letter, A, of the judgment:
"Jy
het dit goedgevind om in die donker ure van die nag by haar eie huis
gewelddadiglik in te breek. Dit is vir my nou duidelik,
in terugskou
van al die feite, met een doel alleen, en dit was om haar te verkrag.
Jy het dit nodig gevind om in die proses van
verkragting soveel
geweld op haar toe te pas, dat sy gesterf het. Jy is verantwoordelik
vir die feit dat sy dood is. Hierdie verkragting
val, in my oordeel,
in die heel ernstige kader van verkragting. Jy het nie alleen by die
vrou se eie huis in die donker gaan inbreek
waar sy alleen was nie,
maar jy het haar in haar eie slaapkamer gaan verkrag, en jy het nog
haar dood ook veroorsaak deur die geweld
wat jy op haar toegepas
net."
In
the course of its judgment, in which it set aside the Court a quo's
sentence of the death penalty for the rape, the Appeal
Court
made the following remarks, indicating that the Court a
quo
had
erred in its approach to the sentence. At 313A to F of the judgment,
Smalberger, A J said the following:
"Tweedens
blyk dit dat die verhoorregter die dood van die oorledene in
aanmerking geneem het by die bepaling van 'n gepaste
vonnis op die
verkragtingaanklag. In die opsig het hy fouteer. Daar moet 'n
duidelike verskil getref word tussen die doodsveroorsaking
van die
oorledene, wat 'n element van die strafbare manslag is, en die
geweldpleging, wat 'n bestanddeel van die verkragting is.
Die
verhoorregter moes noodwendig die doodsveroorsaking van die oorledene
in aanmerking neem by die bepaling van 'n gepaste straf
ten opsigte
van die strafbare manslagaanklag Hy was nie geregtig om dit ook in
aanmerking te neem met betrekking tot die vonnis
op die
verkragtingaanklag nie. Op hierdie aanklag was alleenlik die aard en
omvang van die geweldpleging tydens die verkragting
'n relevante
oorweging. Dit is ongeoorloof om die doodsveroorsaking by
straftoemeting twee keer in aanmerking te neem, omdat dit
sou indruis
teen die beginsel dat duplisering van vonnisse vermy moet word.
Gevolglik moes die verhoorregter die oorledene se dood
wegdink toe hy
die appellant op die verkragtingaanklag gevonnis het, maar hy het
klaarblyklik
nagelaat
om dit te doen." As to the danger of taking into account the
same aggravating factors twice for the purpose of imposing
sentence
in respect of separate offences, see also
S
v Witbooi
1982(1) SA 30 (A) at 35, and
S
v Pietersen
1989(3) SA 420 (A) at 426E to G
It
is against this background that I am required to interpret
section 51
of the
Criminal Law Amendment Act of 1997
, read with
part 1
of the
second schedule to that Act. I have not, in the time available, been
able to find any authority in point, and it seems to
me that I am
required to interpret the legislation in the light of the common law,
and that, unless a clear contrary indication
is evident, I must
assume that the legislature did not intend to alter the common law in
this respect. The fact that, by passing
this legislation, the
legislature clearly signalled an intention to require the Courts to
stiffen the sentences for the types of
crimes mentioned in the Act,
does not, in my view, detract from this conclusion.
To
revert then to the facts of the present case. If, of course, the act
of the rape of Mrs Bisset itself involved the infliction
of grievous
bodily harm, quite apart from the violent assault on her which caused
her death, then a minimum sentence of life imprisonment,
prescribed
by part 1 of the schedule, would be triggered What I cannot do, is
take into account the fact that
Mrs
Bisset was killed, and assaulted in the course of that killing, in
determining whether the minimum sentence for rape, in the
present
case, is also required.
The
phrase, "grievous bodily harm", used in part 1 of the
schedule, is well known in our law. It connotes something more
than
the casual and comparatively insignificant and superficial injuries
which ordinarily follow an assault. It connotes harm which,
in
itself, is such as seriously to interfere with health, to use one of
the descriptions of that term. See in this regard Burchell,
The
Principles of Criminal Law, 3
rd
Edition,
2005 at 689.
All
rapes are, of course, egregious, but some are worse than others.
Cameron. J A, in
S
v Abrahams
2002(1) SACR 116 SCA at 127D to E, made the following remarks in this
regard:
"Some
rapes are worse than others, and the life sentence ordained by the
legislature should be reserved for cases devoid of
substantial
factors compelling the conclusion that such a sentence is
inappropriate and unjust."
As
Davis, J stated in
S
v Swarts and another
,
said at 1999(2) SACR 380 (C) at 386B to C:
"As
controversial a proposition as this is bound to be, as not all
murders carry the same moral blameworthiness, so, too, not
all rapes
deserve equal punishment. That is, in no way, to diminish the horror
of rape. It is, however, to say that there is a
difference, even in
the heart of darkness."
The
evidence of Dr Liebenberg was to the effect that the injuries she
observed in and around Mrs Bisset's genitalia, led her to
conclude
that the intercourse had been forced. This is, of course, the case
with virtually all rapes. On the medical evidence presented,
however,
I am unable to conclude, isolating the rape from the other attacks,
that the rape itself involved the infliction of grievous
bodily harm
in the sense that I have described above. For this reason, in my
view, a minimum sentence of life imprisonment for
the conviction of
rape, in this case, is not compelled by the provisions of section 51,
read with part 1 of the second schedule
to the Act.
Turning
then again to the conviction for Mrs Bisset's murder, I am required
to impose a life sentence, in the absence of substantial
and
compelling circumstances. In considering whether I am obliged to
impose that minimum sentence of life, or some different sentence,
I
have had regard to the effect of
section 51
of the
Criminal Law
Amendment Act, as
articulated in the judgment of Marais, J A in
S
v Malgas
2001(1) SA SACR 469 (SCA) at paragraph 25, and as endorsed by the
Constitutional Court in the judgment of
S
v Dodo
2001(1) SACR 594 (CC) at paragraph 11 As noted in these judgments,
the specified sentences in the legislation are not to be departed
from lightly or for flimsy reasons The legislation in question has
limited, albeit not eliminated, the Court's discretion in imposing
sentence in respect of the listed offences.
In
considering whether there are substantial and compelling
circumstances present, I have account all the factors mentioned by Mr
Ramovha in support of his submission that I should find that such
factors are present. These factors related exclusively to the
accused's particular personal circumstances, and do not require
enumeration.
The
evidence which we heard during the course of the trial made clear
that this was a callous and horrible murder, perpetrated on
a
defenceless old woman. The evidence given by Mrs Starke yesterday
eloquently conveyed the terrible effect which acts like this
have on
the victim's immediate family. The murder of Mrs Bisset occurred in
circumstances which I can only describe as unfeeling
callousness, and
the accused has shown no evident remorse. In my view, the ultimate
punishment for the murder of Mrs Bisset
is amply justified, in the
present circumstances. I can find no compelling or substantial
circumstances which would warrant any
lesser sentence.
The
accused is, accordingly, sentenced to
LIFE
IMPRISONMENT FOR THE MURDER
of Mrs Bisset.
As
regards the rape charge, a minimum sentence of 10 years is prescribed
by
part 3
of the second schedule to the Act, in the absence of
substantial and compelling circumstances. There are none. On the
contrary,
there are aggravating circumstances, chief amongst them
being the fact that this rape was a gratuitous sexual attack on an
elderly
woman in the supposed sanctity of her own home.
In
the circumstances, I am obliged to impose a minimum sentence of at
least 10 years. I am not, however, obliged to impose a sentence
of
only 10 years. In my view, the circumstances of this rape justify a
longer sentence than 10 years. Although comparisons must
be carefully
drawn, by way of comparison, in the case of
S
v S
.
to which I referred earlier, a sentence of 15 years was imposed in
circumstances which may be considered somewhat similar. It
is true
that, in that case, the accused had two previous convictions for
rape, but our society's attitude to rape and the convictions
appropriate to punish it, have hardened over the intervening years.
This fact is reflected in the minimum sentence legislation
which I
have mentioned earlier.
In
all the circumstances, in my judgment, a sentence of
FIFTEEN
(15) YEARS IMPRISONMENT IS WARRANTED FOR THE RAPE
of Mrs Bisset.
As
regards the robbery conviction, in the absence of substantial and
compelling circumstances, a sentence of 15 years is also prescribed
by part 2 of the second schedule to the Act. This is so, because,
inter alia, it involved the taking of a motor vehicle, and the
accused is, in relation to the robbery charge, a first offender. I
can find no substantial or compelling circumstances which warrant
the
imposition of a lesser sentence.
A
sentence of
FIFTEEN
(15) YEARS IMPRISONMENT IS THEREFORE IMPOSED FOR THE CHARGE OF
ROBBERY WITH AGGRAVATING CIRCUMSTANCES
.
In
terms of
section 280
of the
Criminal Procedure Act. I
make the
following orders in relation to the sentences which I have imposed.
The
sentence of 15 years on the rape conviction shall run concurrently
with the life sentence on the conviction of murder. Ten years
of the
sentence of 15 years for the conviction of robbery, shall run
concurrently with the life sentence imposed on the murder
charge.
MULLER,
AJ
/...