About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2018
>>
[2018] ZASCA 6
|
|
Ncgobo v S (1344/2016) [2018] ZASCA 6; 2018 (1) SACR 479 (SCA) (23 February 2018)
THE
SUPREME COURT OF APPEAL SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 1344/2016
In the matter between:
PATRICK
VUSIMUZI
NCGOBO
APPELLANT
and
THE STATE
RESPONDENT
Neutral
Citation:
Ngcobo
v S
(1344/2016)
2018 ZASCA 06
(23 February 2018)
Coram:
WALLIS JA and PILLAY and SCHIPPERS AJJA
Date of Hearing : 15
February 2018
Date of Judgment : 23
February 2018
Summary:
Rape – sentence –
life imprisonment - appellant and complainant aged 23 and 16 years
respectively – period awaiting
trial one of several factors to
be considered cumulatively in determining whether substantial and
compelling circumstances exist
and proportionality of sentence –
interference only if misdirection or trial court’s sentence
grossly disproportionate.
ORDER
On
appeal from:
KwaZulu-Natal
Division of the High Court, Pietermaritzburg (K Pillay J,
McLaren J concurring, on appeal from the Regional Court,
Ixopo), it
is ordered that:
The
appeal is dismissed.
JUDGMENT
Pillay
AJA (Wallis JA and Schippers AJA concurring)
[1]
On
18 September 2006 the complainant then aged sixteen years was
studying in her room in Mangwaneni, Bulwer in the KwaZulu-Natal
Midlands. She was expecting her boyfriend W to bring her a book. She
heard a knock at the door. Assuming that it was W she opened
the
door. Instead it was the appellant.
[2]
The
appellant grabbed her and covered her mouth with his hand so that she
could not scream. Pulling her to him he told her that
he had returned
from prison. He hit her with clenched fists many times demanding that
she call her sister with whom he previously
had a relationship. The
complainant refused to do so. He threatened to shoot her. After
asking her whom she had been expecting
he said that they must go to
W. She refused to go with him. He pulled her away saying that they
were no longer going to W’s
house. He forced her onto the
ground and raped her. Then he dragged her to his house some two or
three kilometres away. There he
pushed her onto a bed and raped her
again. She sustained bruises on her legs and swelling of her face.
[3]
When
the appellant fell asleep the complainant escaped. She made her way
to a bar owned by her brother-in-law. Someone telephoned
for her
brother-in-law. He arrived shortly thereafter with his father. The
matter was reported to the police. The appellant was
arrested that
day. He was 23 years at the time.
[4]
In
his defence the appellant alleged that he was in a secret
relationship with the complainant who did not want her parents to
know about their affair. Because her sister was his girlfriend, her
parents would have ‘
expelled
’
her
from their home if they found out about their affair. Therefore,
fearing her parents, she lied that he had raped her when they
had
sexual intercourse only once at his house.
[5]
On
5 September 2008, the regional court in Ixopo convicted the appellant
of two counts of rape falling under ss 51 and 52 of the
Criminal Law
Amendment Act 105 of 1997 (the Act) and sentenced him to a term of
life imprisonment for both counts taken together.
On an automatic
appeal in terms of the
Criminal Law (Sexual Offences and Related
Matters) Amendment Act 38 of 2007
the KwaZulu-Natal Division of the
High Court, Pietermaritzburg, (McLaren and K. Pillay JJ) confirmed
the conviction and sentence
of life imprisonment. On 3 November 2016
this court granted special leave to appeal against sentence.
[6]
The
appellant’s grounds of appeal were that the courts below had
over emphasised the seriousness of the crime without sufficient
regard to his personal circumstances, in particular, that he was
gainfully employed and supported two dependants. Significantly,
they
did not emphasise sufficiently the two years he had spent in custody
awaiting trial; for this the appellant relied on
S
v
Seboko
2009
(2) SACR 573
(NCK) at 583 and
S
v
Radebe
and
Another
2013 (2) SACR 165
(SCA) at 168-169. Moreover it was contended that
the sentence of life imprisonment was disproportionate to the crime
taking into
account the age of the complainant; for this he relied on
S v
Sangweni
2010
(1) SACR 419
(KZP).
[7]
For
the State, counsel submitted that the only issue for the court to
decide was whether the sentence induced a sense of shock and
was
disproportionate in the circumstances. As for time spent in custody
it was not on its own a substantial and compelling circumstance
but
went to determining whether the sentence was proportionate and just.
Counsel relied on
Radebe
and
Director
of Public Prosecutions North Gauteng, Pretoria
v
Gcwala
and Others
2014 (2) SACR 337
(SCA).
[8]
The
evidence is limited providing little background into the appellant’s
reasons for committing the crime. As in many cases
like this one
there were no pre-sentencing and victim impact reports. Such reports,
properly prepared, would have given the court
deeper insights into
the personality and identities of the appellant and the complainant,
why he committed the crime and how she
reacted to it.
[1]
However, procuring useful pre-sentencing reports is both unaffordable
and time-consuming especially when the appellant wants a
speedy
trial.
[2]
In the circumstances,
the courts have to do their best with what is presented to them.
[9]
After
considering the evidence submitted in mitigation, the trial court
found that there were no substantial and compelling circumstances
present justifying a deviation from the prescribed minimum sentence
and imposed a term of life imprisonment. On appeal, the full
bench,
relying on
S
v Malgas
2001
(1) SACR 469
(SCA) and
S
v Matyiti
2011 (1) SACR 40
(SCA) on the approach to sentencing, found that that
there was no evidence before the trial court to suggest that the
appellant
was ‘immature to such an extent that his immaturity
[could] operate as a mitigating factor’. Mindful of his lack of
remorse, the full bench found that the magistrate had not committed
any misdirection in imposing life imprisonment. Even though
no
evidence was presented of physical or psychological trauma that the
complainant would have endured, the full bench insightfully
accepted
that ‘common sense dictates that [the trauma] could not have
been trifling’.
[10]
I
turn to the two grounds of appeal advanced before us:
(a)
the delay of about two years before the trial commenced; and
(b)
the proportionality of the sentence to the crime, the interests of
the appellant and of society.
[11]
At
the outset this is an appeal in which interference with the sentence
will be justified only if the trial court is shown to have
misdirected itself in some respect or if the sentence imposed was so
disturbingly inappropriate or disproportionate that ‘no
reasonable court would have imposed it.’ The test is not
whether the trial court was wrong but whether it exercised its
discretion properly.
[3]
[12]
As
to the first ground, the appellant was arrested on 18 September 2006,
just hours after he had raped the complainant. On 18 January
2008, he
appeared for the first time in the regional court. He applied for
bail unsuccessfully in the district court and twice
thereafter in the
regional court. At his request, the third bail application was
adjourned several times to enable him to secure
the attendance of his
witness and his choice of legal representation. As at 13 November
2007, the appellant was still awaiting
the outcome of his application
for legal aid. On 29 May 2008, his preferred counsel who represented
him in the first bail application
refused to represent him in the
trial.
[13]
Adjournments
at the instance of the State were initially for purposes of
investigation; on 20 July 2007 for a decision by the Director
of
Public Prosecutions; and, eventually on 8 October 2007 for a regional
court date. On 29 May 2008, the State declared its
readiness
for trial. But the appellant had still not secured legal aid.
Eventually, the matter was remanded for trial on 17 July
2008.
[14]
Typically
some delays seem to have been at the instance of the State and others
at the instance of the appellant. Primarily the
appellant remained in
custody because his three bail applications failed. Even if there
were delays
this
court said in
Radebe
:
‘
the test was
not whether on its own that period of detention constituted a
“substantial and compelling circumstance”,
but whether
the effective sentence proposed was proportionate to the crime or
crimes committed: whether the sentence in all the
circumstances,
including the period spent in detention prior to conviction and
sentencing, was a just one.’
Furthermore:
‘
the period
in detention pre-sentencing is but one of the factors that should be
taken into account in determining whether the effective
period of
imprisonment to be imposed is justified.’
[4]
In
short, a pre-conviction period of imprisonment is not, on its own, a
substantial and compelling circumstance; it is merely a
factor in
determining whether the sentence imposed is disproportionate or
unjust. After applying
Malgas
,
S v
Dodo
[2001] ZACC 16
;
2001
(3) SA 382
(CC) and
S
v Vilakazi
2012
(6) SA 353
(SCA), this court in
Radebe
[5]
confirmed the minimum sentence and dismissed the appeal.
[15]
So
to the second ground of appeal I turn. Two years earlier, and
probably unknown to the court below, a differently constituted
full
bench of the KwaZulu-Natal Division of the High Court applied a
proportionality test to reduce a life sentence for rape of
a child to
18 years.
[6]
Counsel for the
appellant urged the court to apply the approach to proportionality in
Sangweni
to arrive at a lesser sentence.
[7]
[16]
This
appeal serves before us approximately 20 years after the promulgation
of the Act commonly referred to as the minimum sentence
legislation.
Ten years ago in sentencing the appellant the trial court lamented
the prevalence of the crime of rape of women and
children. It noted
the personal circumstances of the appellant to include his age being
25 years at the time of sentencing, his
having two minor children and
his employment that earned him R900 per week. It accepted that he had
no previous convictions relevant
to this case. However, it viewed the
aggravating features of his conduct in a ‘very serious light’;
not only did he
rape the complainant twice but he also dragged and
assaulted her. It noted the age of the complainant and rejected the
proposition
that the complainant ‘was not psychologically
affected by the incident.’ Noting the lack of medical evidence
it remarked
that such evidence would have assisted in assessing the
psychological impact on the complainant. On this basis it found no
substantial
and compelling circumstances to deviate from the
prescribed minimum sentence of life imprisonment. Not even the
appellant’s
time in custody for two years moved the court to
consider a lesser sentence.
[17]
When
the full bench heard the matter on 8 November 2011
Matyiti
had recently been decided. In
Matyiti
the SCA concluded that neither the age of the appellant, nor his
background circumstances, constituted substantial and compelling
circumstances. It held that the circumstances of the crimes were
heinous and that the statutory minimum term of life imprisonment
was
not disproportionate. It accordingly altered the sentence of 25 years
imprisonment imposed by the trial court to one of life
imprisonment
on each count.
[18]
In
this case the full bench applied
Malgas
and Matyiti.
Not
only was it alive to the requirement that sentences must be
proportionate but also that it ‘may only interfere if an
injustice would result, which [was] a fairly high test.’ It
found that the appellant had failed to advance any evidence that
his
immaturity should count in mitigation. Nor did he show remorse.
Endorsing the trial court’s finding about the absence
of
substantial and compelling circumstances the full bench found no
misdirection in the trial court’s sentence. Accordingly
it
upheld in the sentence of life imprisonment.
[19]
Before
us counsel for the appellant urged that a sentence of between 20 and
25 years would be proportionate, mitigated appropriately
by the 2
years awaiting trial. These considerations should be viewed
cumulatively with other factors previously advanced in mitigation.
[20]
In
Dodo
the
Constitutional Court held that not only must the length of sentences
be proportionate to the offence but sentences must not
be ‘grossly
disproportionate’ to what an offender deserves.
[8]
A grossly disproportionate sentence would be a
lengthy
term of imprisonment that bears no relationship to what the offence
merits.
[9]
In
summary:
‘
On
the construction that
Malgas
places on the concept ‘'substantial and compelling
circumstances'’ in s 51(3)
(a)
,
which is correct, s 51(1) does not require the high court to impose a
sentence of life imprisonment in circumstances where it would
be
inconsistent with the offender's right guaranteed by s 12(1)
(e)
of the Constitution.’
[10]
[21]
Sentencing
is the prerogative of the trial court.
[11]
In my view the difference that the two years would make to the
sentence of life imprisonment is so marginal that it does not render
the sentence shockingly disproportionate. Nor would it be, without
remorse on the appellant’s part, inconsistent with his
countervailing constitutional rights. Whether members of this bench
would have arrived at a lesser sentence is not the test. For
this
court to interfere with the sentence it must first find a
misdirection by the courts below. It can find none. Accordingly,
the
appeal is dismissed.
_________
Pillay
AJA
Appearances:
For
Appellant:
Z Anastasiou
Instructed
by:
Pietermaritzburg Justice Centre
For
Respondent:
C Kander
National
Director of Public Prosecutions, KwaZulu-Natal.
[1]
S v Mhlongo
2016 (2) SACR 611
(SCA) para 22-23;
SS
Terblanche ‘
A
guide to sentencing in South Africa’
3
rd
edition p117 para 8.2.
[2]
S v Mhlongo
;
Terblanche
p117 para 8.3.
[3]
S v Romer
2011
(2) SACR 153
(SCA) para 22-23.
[4]
S v
Radebe
para 14.
[5]
S
v Radebe
para14-16.
[6]
S
v Sangweni
was
decided on November 10, 2009.
[7]
S v Sangweni
.
[8]
S v Dodo
para 26, 31-41.
[9]
S v Dodo
para
38.
[10]
S v Dodo
para 40.
[11]
S v Romer
above
para 23.