S v Ken (88/2005) [2006] ZAFSHC 17 (17 August 2006)

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[2006] ZAFSHC 17
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S v Ken (88/2005) [2006] ZAFSHC 17 (17 August 2006)

IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case
No.: 88/2005
In
the case between:
THE
STATE
and
BUTI
BENJAMIN KEN
JUDGEMENT:
H.M. MUSI, J
_____________________________________________________
HEARD
ON:
4 AUGUST 2006
_____________________________________________________
DELIVERED
ON:
17 AUGUST 2006
_____________________________________________________
[1] This matter came
before me on the 26 September 2005 as a referral for sentence in
terms of section 52 of the Criminal Law Amendment
Act 105 of 1997
(the Minimum Sentences Act). On that day I confirmed the conviction
of the accused for rape and proceeded to hear
evidence in mitigation
of sentence from him. I also called
mero motu
the
complainant. After hearing evidence I formed the view that
correctional supervision may be a suitable sentencing option and
I
then requested that a report be obtained from a correctional officer
and remanded the matter further. The accused was ordered
to remain
in custody. When the matter came up on 15 December 2005, I was away
in the Labour Court and the Labour Appeal Court in
Johannesburg where
I acted until 30 June 2006. The matter was remanded on several
occasions until the 4 August 2006 as a part heard
matter, which could
not be handled by another judge.
[2] In the meantime the
requested report by a correctional officer has been filed. The
author is Mr. J.A. van der Merwe who holds
the degrees B.Soc.Sc. and
M.Soc.Sc. from the University of the Free State. He is an
experienced professional who has been with the
Department of
Correctional Services for the past 14 years. Both counsel for the
State and the accused indicated that they would
not contest any
aspect of the report and that it was therefore not necessary for Mr.
Van der Merwe to be called to testify. The
report was thus handed in
by consent. Counsel had already addressed the court on sentence on
the previous occasion and had nothing
further to add. I may mention
that Mr. Strauss, who appeared for the State on the previous
occasions, was not available and Miss.
Claassen appeared instead.
[3] I must indicate that
I have in the meantime been furnished with a transcript of the
proceedings of 26 September 2005 when evidence
in mitigation of
sentence was heard. It appears that the correctional officer was not
aware of the evidence presented on the 26
September 2005 when he
compiled his report, for no mention is made in his report of some
important facts disclosed in the evidence.
I pondered whether it
might not have been a wiser move to have made the transcript of the
evidence available to the correctional
officer with a view to him
reconsidering his views in the light of the evidence. That would,
however, have caused a further delay
in the finalisation of this
matter and I considered it in the interest of justice that finality
be reached once and for all. As
the saying goes, justice delayed is
justice denied. For the same reason I passed sentence on 4
th
August 2006 and indicated that my reasons would follow, which I now
give hereunder.
[4] As already indicated,
this matter is subject to the provisions of the Minimum Sentences Act
as the accused was convicted of rape
of a girl under the age of 16.
The complainant was 14 years old at the time of commission of the
crime (but was already sexually
active). In these circumstances a
minimum sentence of life imprisonment must be imposed, unless it is
found that there are substantial
and compelling circumstances
justifying the imposition of a lesser sentence. The cardinal
question therefore is whether there are
such substantial and
compelling circumstances in this matter.
[5]
MALGAS v S
(2001) 3 ALL SA 220
(SCA);
2001 (1) SACR 469
(SCA) laid down that
factors that traditionally qualify as mitigating circumstances may,
when taken together, constitute substantial
and compelling
circumstances as defined.
In
casu
, both counsel for
the State and defence were agreed in argument that there are indeed
strong mitigating factors that constitute substantial
and compelling
circumstances in this case. I agree with counsel.
[6] At this juncture I
record only the most important of such factors as follows:
Firstly the personal
background of the accused. He is 47 years old. He is married but
is separated from his wife. He is the father
of two minor children
from the current marriage (the complainant included) and a 25 years
old son from his previous marriage (wife
passed away). He has a
stable work history and earned a living as a building subcontractor
with an average income of R500,00 per
week.
He is a first offender.
It is common cause that
he had consumed a lot of liquor when committing the crime, and it
appears that it was not his habit to get
excessively intoxicated.
Subsequent to his arrest
for the offence and whilst on bail, the complainant went to stay
with him at Welkom where he was staying
with his live-in lover and
he maintained the complainant. They have reconciled.
He has shown remorse and
it is unlikely that he will pose any risk to either the complainant
or other women and children.
He is a sickly person.
[7] In the premises, this
Court is entitled to depart from the prescribed minimum sentence and
impose an appropriate lesser sentence.
What that would be is the
next question to be considered.
[8] Now, in his report,
Mr. Van der Merwe has completely ruled out correctional supervision
as an option. Two main reasons are advanced
for this. Firstly, he
found that the accused had no fixed residential address, which is
essential for a sentence of this nature,
for without such a fixed
permanent address proper supervision would be difficult. Secondly,
he proffers the view that this is a
serious crime and reckons that
correctional supervision will not only fail to properly reflect
recognition of the gravity of the
offence but also that it would send
a wrong message to would be rapists. He further reckons that it
would not serve the interest
of society in the eradication of the
scourge of violence against women and children. In a nutshell, the
correctional officer implies
that correctional supervision cannot be
imposed on a conviction of rape and in fact suggests that the
prescribed minimum sentence
be imposed.
[9] Apart from the fact
that the question of what would be an appropriate sentence is a
matter within the discretion of this Court,
and that I am not bound
to follow the recommendations of the correctional officer, the view
that correctional supervision cannot
be imposed
in casu
on the
basis of the gravity of the offence is clearly incorrect. Such a
sentence has in the past been imposed on equally serious
and even
more serious offences. Compare
S v POTGIETER
1994 (1)
SACR 61
(A);
S v LARSEN
1994 (2) SACR 149
(A) (where
correctional supervision was ordered in respect of murder) and
S
v A EN ‘N ANDER
1994 (1) SACR 602
(A) (in respect of a rape
conviction). And the fact that it would be difficult to exercise
proper supervision of the accused due
to lack of a fixed place of
abode is in itself not sufficient a reason for not considering
correctional supervision. See
S v KRUGER
1995 (1) SACR
27
(A).
[10] I have already
recorded some of the mitigating factors in this case. I now briefly
deal with the aspects that emerged in the
evidence but are not
captured, or not fully captured, in the report of the correctional
officer. Firstly, the extent of the accused’s
illhealth. The
accused testified that he has been suffering from asthma since 1987,
that his condition has deteriorated over time,
so that he now carries
a pump and an oxygen mask which he has to use whenever he gets an
attack. He says that sometimes the attacks
become so severe that he
falls. He said that since his incarceration he spends most of the
time in the prison hospital. He attributes
this to the lack of
sufficient fresh air in prison. Now this evidence was not contested
and raises the question of what purpose
does imprisonment really
serve if the man spends most of the time in hospital. The
correctional report does confirm that the accused
“is struggling
from health related problems” but does not elaborate. It appears
that the nature and extent of the ill health
and the conditions under
which the accused survives in prison were not investigated.
[11] The second issue
relates to the relationship between the accused and the complainant.
The correctional officer states:
“
His daughter, the complainant in
this case is still a minor and in that regard he is still responsible
for her. However after what
had happened in this case it is obvious
that she needs to be protected against him and that she shouldn’t
be exposed to him again.
Any further exposure to him as the
perpetrator will bring back the trauma which she suffered as a result
of the rape.”
[12] This statement
apparently results from the fact the correctional officer did not
interview the complainant. The evidence was
that at some stage
whilst the accused was on bail, the complainant joined him where he
was staying with his live-in lover at Bodelia
in Welkom and they
reconciled. This much was confirmed by the social worker who visited
the family and compiled a report on 26 April
2005. She states:
“
The relationship between the
complainant, her father and stepmother appears to be satisfactory.
The complainant indicated that her
father never touched her again after the rape.
The complainant’s stepmother
indicated that while the accused was detained after his arrest, the
complainant requested to visit
him in jail.”
In her evidence in court
the complainant said that the only thing that bothered her was that
the accused did not formally apologise
to her and he duly did that in
open court. The complainant pleaded that the accused be released
from custody in order that he can
provide for her and her baby. It
will be noted that she is now 18 years of age and has a baby of her
own by a boyfriend. She said
that the accused was the only person
who could provide for her and her baby.
[13] The social worker
also detected no signs of any permanent emotional scars on the
complainant. She did note, however, that the
complainant must have
been severely traumatised by the rape and that she would still
benefit from therapy which had not been given
to her. I accordingly
advised the complainant to contact the social workers again so that
they can assist her to get therapy.
The correctional officer
incorrectly reports that the complainant is the only minor child of
the accused. The evidence and the social
worker’s report show that
the family background of the accused is as sketched in paragraph 6
above.
[14] Now, there is no
gainsaying the fact that not only is rape a serious offence but that
it is also prevalent in the whole of this
country. The enactment of
the Minimum Sentences Act was in fact Parliament’s direct response
to the public outcry against the
rampant crimes of violence like
murder, robbery and rape. The purpose was to try to eradicate the
scourge. The instant matter is
aggravated by the fact that the
accused breached the trust that the complainant had in him as a
father and protector. In fact we
are here dealing with a combination
of two offences: rape and incest. The public interest comes very
much to the fore in this case.
[15] The most daunting
task that faces every sentencing judicial officer is how best to
balance the interests of society and the gravity
of the crime, on the
one hand, and the personal circumstances of the accused, on the
other. In my view, the personal circumstances
of the accused and the
background factors sketched above do not mark him out as a candidate
for removal from society. Certainly
he no longer poses a threat to
the complainant. His claim that he cannot believe that he could do
such a thing did not sound hollow.
His conduct can in large measure
be attributed to the consumption of alcohol. It must also be taken
into account that he has already
spent more than a year in prison
since his conviction on 16 May 2005.
[16] It is trite that
sentence is largely determined by the peculiar circumstances of each
case and the dictum stated by Holmes, JA
in
S v RABIE
1975 (4) SA 855
(AD) that “punishment should fit the criminal as
well as the crime, be fair to society, and be blended with a measure
of mercy”
is still very much part of our law. Of course mercy in
this context has nothing to do with maudling sympathy for the
criminal.
[17] I should mention in
passing that there is currently a debate raging in public fora and
the media around the issue of overcrowding
in prisons, with the
insinuation that the courts are exacerbating the problem by
continually imposing direct imprisonment. Some
are even calling for
the abolition of the Minimum Sentences Act, notwithstanding the fact
that the evil that this piece of legislation
was meant to eradicate
is still very much with us. For what it is worth, the debate
highlights the need for flexibility in sentencing,
where the court is
not bound by the minimum sentences provisions. In this regard, it
will be useful to recall the sentiments expressed
by Kriegler, JA (as
he then was) in
S v R
1993 (1) SACR 209
(A) about the
approach ushered by the introduction of correctional supervision as a
sentencing option. Similar sentiments are echoed
in the following
passage from
S v SIEBERT
1998 (1) SACR 554
(A) at 559
c:
“
An enlightened and just penal
policy requires a broad scope of sentencing options from which the
most appropriate option, or combination
of options, can be selected
to fit the unique circumstances of the case before the court. It
requires a willingness on the part
of the trial court actively to
explore all the available options and to choose the sentence best
suited to the crime, the criminal,
the public interest, and also the
aims of punishment.”
[18] Having considered
all the relevant facts, I imposed the following sentence:
Ten (10) years
imprisonment, six (6) years of which is suspended for five (5) years
on condition that the accused is not convicted
of rape, attempted
rape, indecent assault or any sexual offence, committed during the
period of suspension.
___________
H.M. MUSI, J
/em