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[2018] ZASCA 60
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Director of Public Prosecutions, Free State v Mashune (675/2017) [2018] ZASCA 60 (18 May 2018)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case No:
675/2017
In
the matter between
DIRECTOR
OF PUBLIC PROSECUTIONS, FREE STATE
APPELLANT
and
SELLO
JOSEPH MASHUNE
RESPONDENT
Neutral
citation:
DPP,
Free State v
Mashune
(675/17)
[2018] ZASCA 60
(18 May
2018)
Coram:
Lewis and Dambuza JJA and Rogers
AJA
Heard
:
3
May 2018
Delivered:
18 May 2018
Summary:
Criminal law –
appeal by State against sentences for two counts of housebreaking
with intent to rape and rape – misdirections
by trial court in
respect of supposed remorse, youthfulness and absence of physical
injury – no substantial and compelling
circumstances –
heavier sentences than those prescribed justified for two rape
convictions.
ORDER
On
appeal from:
The
Free State High Court (
Mhlambi
J sitting as
court of first instance).
(1)
The appeal succeeds.
(2) The
sentences imposed by the court a quo are set aside and replaced with
the following:
‘
(a) In
respect of count 1, the respondent is sentenced to fifteen years’
imprisonment.
(b) In
respect of count 2, the respondent is sentenced to fifteen years’
imprisonment of which eight years shall run
concurrently with the
sentence imposed in respect of count 1.
(c) The sentences are
antedated to 20 April 2017.’
JUDGMENT
Rogers
AJA (Lewis and Dambuza JJA concurring)
[1]
This is an appeal by the
State, with the leave of the court a quo granted in terms of
s 316B
of the
Criminal Procedure Act 51 of 1977
, against the sentences
imposed by the court a quo on the respondent. The State contends that
the court a quo materially misdirected
itself in several respects and
that the sentences are disturbingly lenient.
[2]
The respondent pleaded
guilty to two counts of housebreaking with intent to rape and rape in
contravention of
s 3
of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007
. By agreement the J88
medical reports were handed in.
[3]
In respect of the first
count, the respondent’s statement in terms of
s 112(2)
of
the
Criminal Procedure Act disclosed
that on the evening of 5 October
2007 he drank at a tavern for some hours. In the early hours of the
next morning, at around 02h00,
he broke into the dwelling of the
complainant, [. . .],, and raped her vaginally without
using a condom. He did not know
her. Afterwards, while he was
dressing, she jumped up from the bed and grabbed him around the neck,
screaming for help. He pushed
her away and hit her in the face with
his fists. Although he was drunk when he left the tavern, he was not
so drunk that he did
not know what was happening around him. He knew
that his actions were unlawful.
[4]
In respect of the second
count, the respondent’s statement disclosed that at around
03h00 on 26 December 2010 he broke into
the dwelling of the
complainant, [. . .], and raped her vaginally, wearing a
condom. In order to subdue her struggling,
he punched her in the face
with his fists. He had known the complainant for a long time but at
no stage had a romantic relationship
with her.
[5]
The respondent having been
duly convicted in accordance with his plea, the State proved the
following previous convictions: (a)
housebreaking with intent to
steal and theft – committed in September 2001 – sentence
of 12 months’ imprisonment
imposed in August 2002;
(b) housebreaking with intent to steal – committed in
August 2004 – sentence of five years’
imprisonment
imposed in October 2004; (c) rape in contravention of
s 3
of Act 32 of 2007 – committed in February 2014 – sentence
of seven years’ imprisonment imposed in October 2015.
[6]
The respondent was born on
8 June 1979, so he was 28 at the time of the first rape and 32 at the
time of the second.
[7]
In aggravation of sentence
the State called the complainant in the second count and the
investigating officer. The latter testified
that another man was
initially tried on the first count but acquitted. Pursuant to the
respondent’s conviction for the rape
committed in February
2014, he was linked by DNA evidence to the two rapes which are the
subject of the present case. The investigating
officer visited the
complainant in the first count at her place of employment to ask her
to come to court. She broke down and cried
in front of other staff
members, telling him that she was not able to look the accused in the
eye.
[8]
The complainant in the
second count testified that she had known the respondent since he was
a youngster. His parents lived nearby.
She knew his mother and
grandmother. Since the rape she can no longer stay alone in a house.
For a long time after the rape she
hated men but had recently started
a relationship with a boyfriend. She became ill with depression and
only completed her treatment
in 2016. She was not willing to accept
the respondent’s apology.
[9]
The respondent testified
in mitigation. He progressed to grade 11 in school. He is divorced
and the father of twins born in 2012.
He asked the complainants to
forgive him and said he was very remorseful. He claimed that his
guilty plea was not the result of
the DNA evidence that implicated
him but because he realised what he had done was wrong.
[10]
Strictly speaking, each
count in the present case involved two distinct offences, namely (a)
housebreaking with intent to commit
rape; and (b) rape (
S
v
Zamisa
1990 (1) SACR 22
(N) at 23d-e.)
However, since the indictment was framed as if each housebreaking and
the ensuing rape constituted a single offence,
and since the contrary
was not argued, I shall approach the case as if the respondent was
convicted of two offences, not four.
This is what the court a quo
did.
[11]
In the case of the two
rapes, the respondent was, for purposes of the legislation, a first
offender (the rape conviction in October
2015 post-dated the rapes
with which he was charged in the present case), so the minimum
sentence in respect of each rape was ten
years’ imprisonment in
terms of s 51(2)
(b)
(i)
read with Schedule III.
[12]
The court a quo found that
there were substantial and compelling circumstances to depart from
the minimum sentences, and sentenced
the respondent to nine years’
imprisonment on each count, the sentences to run concurrently. The
court a quo reached this
conclusion on the following grounds: (a)
that the respondent pleaded guilty in circumstances where he could
easily have pleaded
not guilty and required the State to prove its
case; (b) that he expressed heartfelt remorse; (c) his
youthfulness; (d) the
prospect of rehabilitation, coupled with
the fact that he is the father of two young children; (e) that
the complainants suffered
no serious injuries.
[13]
The court a quo’s
approach involved serious misdirection. As to the respondent’s
guilty plea and professed remorse,
his evidence should not have been
accepted. It is not in dispute that he was linked to the rapes by DNA
evidence obtained in connection
with the unrelated rape he committed
in February 2014. Since swabs were promptly taken from the
complainants in the present case,
the case against the respondent was
strong. His supposed remorse only followed his arrest in the present
case and came nine years
after the first rape and six years after the
second.
[14]
Remorse entails taking
responsibility for one’s actions. Despite the passing of a
number of years, this is not something the
respondent did. On the
contrary, in February 2014 he raped another woman. Although the
conviction for the 2014 rape is not a prior
conviction in the true
sense, the court a quo could and should have taken it into account in
assessing the accused’s character,
his propensity for rape, his
prospect for rehabilitation and the genuineness of his remorse (see
R
v Zonele & others
1959
(3) SA 319
(A) at 330D-331B;
S
v S
1988 (1) SA 120
(A) at 123E-H).
[15]
As to the respondent’s
supposed youthfulness, he was 28 and 32 respectively at the time of
the rapes with which this case
is concerned.
In
S
v Matyityi
[2010]
ZASCA 127
;
2011 (1) SACR 40
(SCA) Ponnan JA was critical of the trial
judge’s use of the phrase ‘relative youthfulness’
without any attempt
at defining what exactly that meant in respect of
the particular individual. Ponnan JA said that while someone under
the age of
18 years could be regarded as naturally immature, the same
does not hold true for an adult and that a person of 20 years or more
must show by acceptable evidence that his immaturity was such as to
operate as a mitigating factor. In the present case there was
no
justification for the court a quo to treat the respondent as an
immature offender.
[16]
As to the respondent’s
prospects of rehabilitation, one never wishes to rule this out as a
possibility. In the present case,
however, the prospect of
rehabilitation did not rise to the level of a substantial and
compelling circumstance. On the contrary,
the respondent’s
previous convictions for housebreaking indicate that he has not
learnt lessons from milder punishment. The
first housebreaking and
rape in the present case were perpetrated while the respondent was on
parole for the second of his previous
housebreaking convictions.
[17]
As to the absence of
‘serious injuries’, s 51(3)
(aA)
states that the absence of apparent physical injuries does not
qualify as substantial and compelling circumstances for rape. While
s 51(3)
(aA)
does not preclude a court from having regard to the absence of
physical injuries in combination with other factors in arriving
at a
conclusion that substantial and compelling circumstances exist
(
Mudau
v S
[2013] ZASCA 56
;
2013 (2) SACR 292
(SCA) para 26)
,
on its own (and here there is nothing else) the absence of physical
injury does not suffice.
[18]
This said, the J88 report
in respect of the first rape reflects that the complainant suffered
vaginal tearing and some bruising
and abrasions on her face and body.
While the second complainant’s apparent physical injury was
limited to swelling and redness
around her mouth, she suffered
depression for which she underwent treatment for six years.
Depression is a serious illness which
materially affects a person’s
quality of life.
[19]
Since the court a quo’s
finding of substantial and compelling circumstances cannot be
sustained, we must consider sentence
afresh. Self-evidently the
respondent must, at the very least, receive the prescribed minimum
punishment. The only question is
whether there are grounds to impose
more severe sentences. In each case, there are aggravating features.
The most important is
that the respondent broke into the
complainants’ dwellings and forced himself on them in the early
hours of the morning while
they lay sleeping in their beds. The shock
must have been truly terrifying for them. The respondent used
physical force, punching
them in their faces. Since each
housebreaking and ensuing rape is being treated as a single offence,
the respondent’s previous
convictions for housebreaking are
aggravating features of the composite crimes. The 2014 rape must also
go into the scales against
him.
[20]
In all the circumstances,
I consider that sentences of fifteen years’ imprisonment should
be imposed for each of the two convictions.
The cumulative effect of
30 years’ imprisonment on top of the seven-year sentence which
the respondent is already serving
for the 2014 rape would, however,
be disproportionate. On the other hand, complete concurrency of
sentences would not reflect the
gravity of the offences, which were
entirely unconnected with each other in circumstances and point of
time. I consider an effective
period of 22 years’ imprisonment
would be just.
[21]
The following order is
thus made:
(1) The appeal succeeds.
(2) The
sentences imposed by the court a quo are set aside and replaced with
the following:
‘
(a) In
respect of count 1, the respondent is sentenced to fifteen years’
imprisonment.
(b) In
respect of count 2, the respondent is sentenced to fifteen years’
imprisonment of which eight years shall run
concurrently with the
sentence imposed in respect of count 1.
(c) The
sentences are antedated to 20 April 2017.’
______________________
O L Rogers
Acting Judge of Appeal
APPEARANCES
For
Appellant
E
Liebenberg
Office
of the Director Of Public Prosecutions, Free State
Bloemfontein
For
Respondent
S
Kruger
Legal
Aid South Africa
Bloemfontein