S v T (A179/2005) [2006] ZAFSHC 52 (30 November 2006)

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[2006] ZAFSHC 52
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S v T (A179/2005) [2006] ZAFSHC 52 (30 November 2006)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case
No.: A179/2005
In the appeal between:
THE STATE
and
T.W.T.
_____________________________________________________
CORAM:
H. M. MUSI, J
et
MOLEMELA, AJ
JUDGMENT:
MOLEMELA, AJ
_____________________________________________________
HEARD ON:
20 NOVEMBER 2006
_____________________________________________________
DELIVERED ON:
30 NOVEMBER 2006
_____________________________________________________
[1] This is an appeal
against sentence only. On the 11
th
October 2004 the
appellant was convicted of rape and theft by the Harrismith Regional
Court and sentenced to 10 years and 6 months’
imprisonment,
respectively.
[2] It will be noted that
rape is one of the offences that have been specifically designated
for severe punishment as set out in section
51 of the Criminal Law
Amendment Act, no. 105 of 1997 (“the Act”). The particular
provision that is applicable to the facts
of this case is section
51(2) read with Part III of Schedule 2, in terms of which the
appellant would be liable to a minimum sentence
of 10 years
imprisonment unless there were substantial and compelling
circumstances justifying the imposition of a lesser sentence.

However, this section is to be read with subsection 3(b) of section
51, seeing that the appellant was 17 years of age at the time
of
commission of the offence.
[3] In oral argument
counsel for the appellant contended that the effect of subsection
3(b) is that offenders older than 16 years
but under 18 years are
exempt from the imposition of the prescribed minimum sentence and do
not therefore have to establish the existence
of substantial and
compelling circumstances warranting a departure from the prescribed
sentence. As authority for this counsel cited
S v BRANDT
2005 (2) ALL SA 1
(SCA).
[4] Counsel for the state
agreed that the appellant did not have to establish the existence of
substantial and compelling circumstances
but submitted that the
sentence imposed on the appellant was appropriate and supported it.
She submitted that the sentence imposed
adequately reflects the
seriousness of the crime.
[5] Regarding the
interpretation of subsection 3(b) it is apposite to refer to the
following passage from
S v BRANDT
supra
at page
5:
“
The national starting point of the
enquiry for the two categories of offendors to whom the Act does
apply thus differs. For adult
offendors the starting point is the
minimum sentence prescribed by the legislature. That sentence, which
is intended to be a severe
and standardised one, may only be departed
from if there is weighty justification therefor. It is for the adult
offender to establish
that substantial and compelling circumstances
justifying a departure are present. For child offendors between the
age of 16 and
18, the sentencing court starts with a clean slate.
Subject
to the weighting effect of the statutorily prescribed minimum
sentence, the sentencing court is free to impose such sentence
as it
would ordinarily have imposed. It may decide in the exercise of its
sentencing discretion to impose the minimum sentence prescribed
by
section 51(2) for an offence of the kind specified in Schedule 2.
That a discretion to impose the minimum sentence does indeed
exist is
clear from the use of the words “decides” and “decision” in
section 51(3)(b). The sentencing court is called upon
in the
exercise of its discretion to make a decision as to whether or not to
impose the minimum sentence prescribed by the Act.
But it is not
obliged to impose the statutorily prescribed minimum sentence and, if
it does do so, it is required to enter its reasons
for its decision
on the record of the proceedings.”
[6] It is clear from the
above passage that in relation to offenders who are older than 16
years but under 18 years of age, a sentencing
court has a discretion
whether to impose the prescribed minimum sentence or not, but if it
decides to impose the prescribed minimum
sentence, it must record its
reasons for doing so. In
casu
, the court
a quo
imposed
the prescribed minimum sentence but did not record its reasons for
doing so. This constitutes a misdirection which entitles
this court
to interfere and to consider sentence afresh. In doing so, the triad
of sentence will be taken into account, namely,
the nature of the
offence, the interests of the community and the personal
circumstances of the offender.
[7] It is indeed so that
the appellant was only 17 years old when he committed the offence and
that his age must count in his favour
when considering a sentence
that is appropriate for him. However, the aggravating circumstances
of this case do have a bearing on
the sentence that must be imposed.
The aggravating circumstances are the following:
(i) the seriousness of
the offence;
(ii) prevalence
of the offence;
(iii) that
the appellant was aware that someone else had already raped the
complainant but decided to subject her to a further ordeal.
[8] These above-mentioned
factors leave me with no doubt that this is a situation that warrants
incarceration of the appellant despite
the fact he was only 17 years
old and as such practically a child at the time of the commission of
the offence. I do, however, subscribe
to the view that given his
age, he should be incarcerated for the “shortest appropriate period
of time”. See
S v BRANDT
supra
at page 8.
Having considered all these factors, I am of the view that ten years’
imprisonment is too harsh under the circumstances
and ought to be set
aside. However, rape remains a serious offence warranting severe
punishment. I am therefore of the view that
an appropriate sentence
is 8 years’ imprisonment.
[9] In the result, the
appeal against sentence succeeds to the extent that:
(a) the sentence of 10
years’ imprisonment on count 1 is set aside;
(b) there
is substituted for it a sentence of imprisonment for a term of 8
years.
(c) the
sentence of six months’ imprisonment on count 2 will run
concurrently with the sentence of count 1.
(d) the
sentences are antedated to 11 October 2004.
___________________

M. B. MOLEMELA, AJ
I
concur.
____________
H.
M. MUSI, J
/em