S v Scholtz (54/87) [1987] ZASCA 95; [1988] 3 All SA 532 (AD) (22 September 1987)

75 Reportability

Criminal Law

Brief Summary

Criminal Law — Sentencing — Death penalty — Appellant convicted of two counts of rape, sentenced to five years' imprisonment for one and death for the other — Appeal against death sentence only — Appellant's prior convictions and circumstances of the crime considered — Court held that the trial judge properly exercised discretion in imposing the death penalty, given the serious nature of the crime and its impact on the victim — Appeal dismissed.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was a criminal appeal on sentence in the Appellate Division of the Supreme Court of South Africa (now the Supreme Court of Appeal). The appeal was confined to whether the death sentence imposed for one count of rape should be set aside.

The appellant was Cecil Scholtz, and the respondent was the State. The matter originated in the Cape of Good Hope Provincial Division, where the appellant was convicted on two counts of rape. He received five years’ imprisonment on one count and was sentenced to death on the other. With leave granted by the trial court (per Nel J), he appealed only against the death sentence.

The general subject-matter of the dispute concerned the proper appellate approach to interference with sentence, particularly in the context of the then-available capital punishment for rape, and whether the trial court had misdirected itself or imposed a sentence that fell outside the bounds of a reasonably exercisable sentencing discretion.

2. Material Facts

The appellant was born on 19 November 1964, making him 21 years old at the time of the offences. He was unmarried, unemployed, and had passed Standard 3 at school. He had two prior convictions: one in 1983 for assault with a knife and one in 1985 for theft, with relatively minor punishments imposed for those offences.

The appellant committed a first rape in October 1985. The judgment records its occurrence and the fact of subsequent arrest and release on bail, but does not detail that episode because it was not necessary to the appellate inquiry beyond its relevance to sentencing. After being arrested for that rape, the appellant was released on bail.

On 25 November 1985, while on bail, the appellant committed the second rape, which was the basis for the death sentence and the subject of the appeal. The complainant was a 19-year-old university student, described by the trial court as fine-built, well-educated, and a “civilised” young woman. It was undisputed that she was alone at her parents’ home in Paarl and that she was a virgin prior to the rape.

The appellant saw the complainant sitting on the stoep studying in the late morning. He decided to have sexual intercourse with her and approached in a manner the court accepted as demonstrating an element of cunning and planning: he walked past the house to create an impression of continuing on, then jumped a wall and approached her from behind. He held a knife to her throat, threatened her, and compelled her into the house. He demanded that she remove her pants and threatened to “cut” her if she did not comply. The rape then occurred on the floor. During the incident, the appellant also demanded that she kiss him and touch his genitalia; she refused. When the telephone rang, he fled.

The complainant reported the rape immediately to her stepfather, who arrived within minutes and found her locked in a toilet, “completely hysterical”. She was examined medically; the district surgeon concluded that penetration had occurred. The appellant was arrested that evening and later admitted the offence. The complainant thereafter required psychological treatment, with evidence accepted by the court indicating ongoing fear, depression, and disturbance to her social life and intimate relationship.

A disputed issue raised by the appellant in his testimony (given after a guilty plea) was that he acted under the influence of drugs. The trial court rejected that claim. The trial court also found that remorse had not been shown.

3. Legal Issues

The central legal questions were whether the trial court’s sentencing discretion had been exercised properly, such that the appellate court was not entitled to interfere, and specifically whether the death sentence was a sentence the trial court could reasonably have imposed on the proven facts.

Within that overall inquiry, a focused issue was whether the trial court committed a misdirection by treating as aggravating the fact that the appellant committed the second rape while on bail for the first rape, notwithstanding that he had not yet been convicted and sentenced on the first charge at the time of the second offence.

The dispute was not about the guilt findings. It concerned the application of sentencing principles to established facts and the review of a value-laden discretionary judgment on sentence, governed by the appellate restraint applicable to sentencing appeals.

4. Court’s Reasoning

The Appellate Division approached the matter on the basis that sentence falls primarily within the trial court’s discretion, and that interference is permissible only if the discretion was not exercised judicially and properly, including where a material misdirection is shown. Absent misdirection, the question is not whether the appellate court would have imposed a different sentence, but whether the sentence imposed is one that the trial court could reasonably have imposed.

On the alleged misdirection relating to the appellant being on bail, the court rejected the argument that this factor was irrelevant because the appellant had not yet been convicted and sentenced on the first rape and therefore had not felt “the retaliatory effect of punishment”. The court held that the proximity in time and the fact of having committed another rape only six weeks earlier was indicative of the appellant’s character and attitude, which is relevant to sentencing. In support of this approach, the court referred to authority recognising that convictions (and even criminal conduct) linked closely in time, including offences committed after the offence being sentenced, may properly bear on sentence. The court concluded that the trial judge therefore committed no misdirection in treating the bail-related circumstance as aggravating, and likewise found no misdirection on any other basis.

Turning to whether the death sentence was within the bounds of reasonable sentencing discretion, the court evaluated the mitigating considerations advanced for the appellant. These included the complainant’s limited physical injury, the submission that psychological harm might not be permanent given the complainant’s youth, the relatively short duration of the incident, the contention that the appellant was not arrogant and appeared nervous, the fact that he threw the knife aside at the complainant’s request, his guilty plea, his youth, and the asserted (but allegedly insufficiently considered) prospect of rehabilitation.

The court accepted that weight had to be given to those considerations, but emphasised that substantial aggravation remained. It endorsed the trial court’s assessment that the rape was serious, noting that the complainant’s fear must have been obvious to the appellant and that the appellant’s conduct displayed a degree of planning and slyness in the approach. The use of a knife was treated as materially aggravating. The court further stressed the particular gravity of the offence occurring in the complainant’s home, which it characterised as a place that should be “sacrosanct”, and recognised the continuing psychological consequences still present nine months after the rape.

In applying the test articulated in S v Pieters, the court framed the matter as a borderline case in which a long term of imprisonment would have been a reasonable sentence, but where the death penalty could also, on the accepted facts, be a sentence that a trial court could reasonably impose. The Appellate Division considered that there were “good reasons for both” sentencing outcomes and that the trial judge, notwithstanding consideration of possible rehabilitation, selected the death sentence without exceeding the limits of reasonable discretion. Because the appellate threshold for interference was not met, the sentence could not be disturbed.

5. Outcome and Relief

The Appellate Division dismissed the appeal.

The practical effect was that the death sentence imposed on the appellant in respect of the second rape conviction was confirmed. The judgment, as reported, does not set out any separate or additional costs order in relation to the appeal.

Cases Cited

S v Radebe 1962 (2) SA 380 (A)

S v Kok 1974 (1) PH H(2)

R v Zonele and Others 1959 (3) SA 319 (A)

S v Pieters 1987 (3) SA 717 (A)

Legislation Cited

No legislation is expressly cited in the reported judgment text provided.

Rules of Court Cited

No rules of court are expressly cited in the reported judgment text provided.

Held

The court held that the trial court committed no misdirection in treating as an aggravating consideration the fact that the appellant committed the second rape while on bail for an earlier rape charge, because the circumstance was relevant to the appellant’s character and attitude and therefore to sentence.

The court further held that, applying the appellate standard for interference with sentence, this was a case in which a long term of imprisonment would have been reasonable, but the death sentence was also a sentence the trial judge could reasonably impose on the facts. The trial court’s sentencing discretion was therefore properly exercised, and the appellate court was not entitled to interfere.

LEGAL PRINCIPLES

A sentencing appeal is constrained by the principle that sentence is pre-eminently within the trial court’s discretion. An appellate court may interfere only where there is a material misdirection or where the sentence imposed is not one that the trial court could reasonably have imposed.

In determining sentence, a court may consider facts bearing on the offender’s character and disposition, including the proximity of other serious criminal conduct. The fact that an accused committed a serious offence while on bail for a similar charge may properly be treated as aggravating, even if the accused had not yet been convicted and sentenced on the earlier charge, because it may evidence attitude towards the law and propensity to re-offend.

In capital sentencing (as addressed in the judgment), the operative appellate inquiry is not whether the death penalty is the only appropriate sentence or whether the case is the “ultimate” one, but whether the trial court’s decision to impose death was one that could reasonably be reached on the proven facts. Where the case is a borderline one admitting of reasonable disagreement, and the trial court’s choice falls within the range of reasonable sentencing outcomes, appellate interference is not justified.