S v Phakathi (K/S 8/05) [2006] ZANCHC 111 (22 February 2006)

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[2006] ZANCHC 111
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S v Phakathi (K/S 8/05) [2006] ZANCHC 111 (22 February 2006)

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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern Cape
Division)
Case
No: K/S 8/05
Date
Delivered: 22/02/2006
In the case between:
THE
STATE
and
BILLY
PHAKATHI
SENTENCE
TLALETSI,
J:
What the Court now has to do is to
determine an appropriate sentence for you.
1. The
object and purpose of punishment are deterrent, preventive,
reformative and retributive.
2. The triad enunciated in
S v Zinn
1969(2)
SA 537(A) at 540 G remains instructive to this Court. This consist
of the crime, the offender and the interest of the society.
Added To
the trial is the interest of the victim.
A Court should strike a judicious counterbalance
between these elements in order to ensure that one element is not
unduly accentuated
at the expense of, and to the exclusion of other
elements.
3.
The offender
(The
following are your personal circumstances which have
been placed on record. You are now 23 years old, not
married,
have two children and they are staying with their mothers. Who are
not employed. You are a first offender to Rape, but
have previous
conviction of theft. You attended school up to grade 12 at school.
You were employed earning R 400-00 per week at
a panel beating
business.)
4.
The offence
It is common cause that
the offence for which the accused has been convicted is of a very
serious nature. It is RAPE and Culpable
Homicide. The Court must
take into account the moral and ethical nature of the offences and
their gravity. Logic dictates that
more serious crimes have to carry
greater moral blameworthiness as opposed to minor offences.
These offences are prevalent in this jurisdiction.
The complainant was sleeping in the comfort of her boyfriends house,
and you broke
into the house and when you unexpectedly noticed her,
ran away. You saw her that she was defenseless as nobody heeded her
calls
and decided to attack her. Instead of reflecting on the wrong
you did by breaking into this house, you decided to rape her twice.

She was a defenseless and vulnerable woman. She was injured by the
knife you had with you in the struggle. You also, according
to the
complainant, assisted in the rape by Kale.
Rape is a very serious offence that impairs the
privacy and the dignity of the victim, against her constitutionally
guaranteed rights.
See
S v Chapman
1997(2) SACR 3 (SCA) at 5
b – c. The complainant testified that she experienced nightmares.
Psychologically this incident has
affected her. She did not sustain
life threatening injuries. The physical injuries were the cuts on
her finger and marks on the
elbow and arm. There is no evidence
that you originally planned to go and rape the complainant. You only
took the opportunity
of seeing her being at eh wrong place at the
wrong time.
5.
Interests of the community
A Court fulfils an
important function in applying the law in the society. It has a duty
to maintain Law and Order. As it operates
in society its decisions
have an impact in the individuals ordinary daily lives. The Court
must promote respect for the law, and
in doing so reflect the
seriousness of the offence and provide just punishment for the
offender. In doing so the Court must take
the personal circumstances
of the offender. The feelings, requirements and protection of the
society against the accused or would
be offenders must be taken into
account. The interests of the society should not be over emphasized
to the detriment of the personal
factors of the accused. Due weight
must be given to all the elements. In considering the interests of
the society, I will take
into account the entire society without
discrimination. This Court will also blend its sentence with a
measure of mercy.
Holmes JA
remarked as follows in
S v
Harrison
1970(3) SA 684 (AD) at 686 A:
“Justice must be
done; but mercy, not a sledge-hammer, is its concomitant.”
also
S v Rabie
1975(4) SA 855(A) at 862G-H, where
Holmes
JA
further said the following:
“
punishment
should fit the criminal as well as the crime, be fair to society, and
be blended with a measure of mercy according to the
circumstances.”
Mercy involves an understanding of and compassion for the weaknesses
of human nature. It has been said not to involve mandlin sympathy
for a criminal but involves fairness.
The interest of society are best served by a
sentence which produces the biggest advantage, or the least potential
harm, to society.
Society is served by the most effective sentences
possible, bearing in mind the aims of sentencing. The interest of
society must
not be confused with the emotions or outrage of society.
For example, society may perceive that life imprisonment is the just
sentence
for a murderer or rapist. However, in the particular
circumstances of that case life imprisonment may not be in the
interest of
society, eg. where a person is a youthful offender with
good prospects of rehabilitation.
It may not be in the
interest of society to send a rehabilitable person for a very long
time to prison. It may also not be in the
interest of society to
send a rehabilitable person to a very short term of imprisonment,
because of the destructive effect such short
term imprisonment may
have on the offender.
Act 105 of 1997
Criminal Law Amendment Act 105 of 1997
makes
provisions for minimum sentences for certain serious offences. This
is intended to serve as a deterrent and to ensure some
measure of
consistency as far as sentences for similar offences are concerned.
This particular type of rape is listed in
part 1
of schedule 2 and
carries with it a sentence of Life Imprisonment. It is an instance
where the victim was raped more than once by
the same person.
The Court should only depart from the prescribed
minimum sentences where if finds that there are substantial and
compelling circumstances.
The approach that the Court should adopt
is properly captured in the case of
S v Mahomotsa
2002(2) SACR 435 (SCA) at 443i - 444e and
S v Malgas
2001(1) SACR 469 (SCA).
In
S v Mahomotsa
2002(2) SACR 4359
(SCA) at 443i-444c per
Mpati JA
the following is said:
“
[18]
It perhaps requires to be stressed that what emerges clearly from the
decisions in Malgas and Dodo is that it does not follow
that simply
because the circumstances attending a particular instance of rape
result in it falling within one or other of the categories
of rape
delineated in the Act, a uniform sentence of either life imprisonment
or indeed any other uniform sentence must or should
be imposed. If
substantial and compelling circumstances are found to exist, life
imprisonment is not mandatory nor is any other mandatory
sentence
applicable. What sentence should be imposed in such circumstances is
within the sentencing discretion of the trial Court,
subject of
course to the obligation cast upon it by the Act to take due
cognisance of the Legislature's desire for firmer punishment
than
that which may have been thought to be appropriate in the past. Even
in cases falling within the categories delineated in the
Act there
are bound to be differences in the degree of their seriousness. There
should be no misunderstanding about this: they will
all be serious
but some will be more serious than others and, subject to the caveat
that follows, it is only right that the differences
in seriousness
should receive recognition when it comes to the meting out of
punishment. As this Court observed in
S
v Abrahams
2002 (1) SACR 116
(SCA), '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' (para [29]).”
Substantial and Compelling Circumstances
You are a first offender to rape. You are still
young. You had consumed liquor excessively. The complainant did not
suffer physical
life threatening injuries. This is not one of the
worst types of rapes. Although you raped her twice these incidents
are not far
apart, but may be viewed as one cause of event in a
chain. There is a marked disparity between the sentence that I would
impose
and the prescribed sentence such that the imposition of the
prescribed sentence would cause an injustice to you. The cumulative
effect of these circumstances in my view qualify as substantial and
compelling circumstances.
Long term imprisonment, bearing in mind the
benchmark laid down by the legislature is unavoidable. I will give
you a chance to rehabilitate
yourself and mend your ways. I will
take the two rape counts together for the purpose of sentence as they
are closely related to
each other in terms of proximity and method
used. In order ameliorate the effect of sentence.
I will order the sentences should ten concurrently.