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2003
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[2003] ZAWCHC 84
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S v Yawa (SS280/2003) [2003] ZAWCHC 84 (2 December 2003)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT. CAPE
TOWN)
CASE
NUMBER: SS280/2003
DATE: 2
DECEMBER 2003
In
the matter between:
THE
STATE
and
M
YAWA
SENTENCE
SELIKOWITZ.
J:
Mr
Yawa you were found guilty of raping a young girl, of eight years
old. The law passed by our parliament in 1997 provides that
in a case
like this, the Court must impose a life sentence, which means that
you would spend the rest of your life in jail. The
Court is empowered
to impose a lesser sentence if there are substantial and compelling
circumstances which make the life sentence
unjust.
Your
advocate has placed a report about you before the Court and has
argued that the Court should find that there are circumstances
which
allow the Court not to impose a life sentence. You have chosen not
to give evidence. The State called an experienced social
worker who
reported on the effects of the rape on the young victim. In the light
of all the circumstances this Court must decide
on your punishment.
Although
you have chosen not to give any evidence, it seems to me that there
are four factors that weigh heavily against the justice
of imposing a
life sentence and they must be weighed up against the other factors
that aggravate the crime. The four factors are
firstly your youth,
you were only 21 when you committed the crime. Secondly, your clean
record. Thirdly, that it is clear that
the crime was not premeditated
and fourthly, there was not excessive violence and indeed the effects
of the rape, although serious,
do not seem to be devastating.
Mr
Appels has argued that the factors in your favour are outweighed by
the circumstances which can be held against you. The fact
that the
victim was an eight year old young girl, who you knew and who lived
as a neighbour. You entered the toilet to attack her.
You kicked her
feet out from under her to get her on to the ground. You show no
regret whatsoever. In weighing up all these circumstances,
the Court
has also to have regard to the interests of the community. There are
far too many rapes in our society and it is shocking
how often the
victims are young girls.
Weighing
up all the circumstances, I am satisfied that the life sentence is
inappropriate in this case. The fact that you are at
the beginning of
your adult life and indeed young, carries great weight in my view. It
would be unjust for me in all the circumstances
to order that you be
incarcerated for the rest of your life. Justice requires that you be
given a chance after serving a sentence
to return to society. The
circumstances of this case have persuaded me, with a very small
margin, that a life sentence would be
disproportionate to the crime,
to you and to the needs of society.
The
crime you committed is, however, extremely serious and while I have
found substantial and compelling circumstances not to impose
a life
sentence, it is nonetheless a matter which the Court regards in a
very serious light. I have considered your personal circumstances
and
your background. I particularly have regard to the fact that your
mother expresses confidence in you as a decent young man.
You will
have to bear the weight of the disappointment that you have caused to
her. She did not bring you up to behave in this
way and part of your
punishment is the knowledge that you have broken her heart.
I
am impressed also by the fact that Archbishop Vunjawa speaks well of
you. I also have to balance the punishment with what you
have done to
this young girl who was totally innocent from beginning to end. I
also have regard to the interests of society. You
are not going to be
sent to jail for the rest of your life, but you are going to be sent
to jail for a long, long time, so that
you and the community will
realise that this sort of behaviour cannot be tolerated.
The
sentence of the Court is FIFTEEN (15) YEARS IMPRISONMENT.
SELIKOWITZ,
J