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[2023] ZAWCHC 23
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Jacobs v S (A 190/2022) [2023] ZAWCHC 23 (10 February 2023)

IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
Number: A 190 / 2022
In
the matter between:
MELVIN
JACOBS

Appellant
and
THE
STATE

Respondent
Coram:
Wille
et
Thulare, JJ
Heard:
3 February
2023
Delivered:
10 February 2023
JUDGMENT
WILLE,
J:
Introduction:
[1]
This is an ‘automatic’ appeal directed against the
sentence imposed upon the appellant by the lower court.  I
say
this because the appellant elected to exercise his automatic right of
appeal against his sentence of life imprisonment. The
appellant was
convicted on one (1) count of rape and one (1) count of attempted
rape. The appellant pleaded guilty to both the
charges formulated by
the respondent.
[2]
The appellant was sentenced to life imprisonment.  Further, it
was directed that the appellant's name was to be recorded
in the
official register for sex offenders and that he was declared unfit to
possess a firearm.  This is in terms of the appropriate

legislation.
Overview:
[3]
The grounds of appeal advanced on behalf of the appellant are, in
broad terms, the following, namely: (a) that the sentence
imposed was
shockingly harsh and inappropriate; (b) that the appellant was
sacrificed at the altar of retribution, as opposed to
that of
rehabilitation and, (c) that there were substantial and compelling
circumstances present dictating a deviation from the
minimum
sentencing regime to the benefit of the appellant.
[4]
The appellant was arrested on 19 December 2019.  He was
convicted on 6 July 2022 and sentenced on 7 July 2022.  The

offences were committed on 19 December 2019.  The appellant was
fifty-seven (57) years old at the time of his arrest..
When
these offences were committed, the complainants were only nine (9)
years old.
[5]
The appellant was charged with a contravention of the provisions of
section 3 read with sections 1, 55, 56 (1), 57, 58, 59,
60, 61 and 68
of the Criminal Law Amendment Act (Sexual Offences and Related
Matters)
[1]
, read with
sections
256
,
257
,
261
and
281
of the
Criminal Procedure Act 51 of 1977
.  The
provisions of
sections 51
and Schedule 2
Part 1
of the
Criminal Law
Amendment Act, 105 of 1997
.  The provisions of
section 92
(2)
and
section 94
of the
Criminal Procedure Act 51 of 1977
also found
application.
[2]
The rape
charge in count one (1).
[6]
The charge preferred against the appellant on count two (2)
referenced a contravention of the provisions of
section 55
read with
Chapters 2, 3, 4,
sections 1
,
56
,
57
,
58
,
59
,
60
,
61
and
71
(1), (2)
and (6) of the
Criminal Law Amendment Act (Sexual
Offences and
Related Matters), as well as
sections 92
(2) and
94
of the
Criminal
Procedure Act 51 of 1977
.  The charge of attempted rape in count
two (2).
[7]
The respondent accepted the facts in the appellant’s statement
in his guilty plea.  After the arguments on the sentence
and
acceptance into the record of some additional material, the presiding
officer in the lower court found no substantial and compelling

circumstances to deviate from the prescribed minimum sentence in
connection with the rape charge.  The judicial officer in
the
lower court imposed the prescribed minimum sentence of life
imprisonment on the appellant.  The two convictions against
the
appellant were taken together for the purposes of imposing sentence
on the appellant.  Further, the appellant’s
rights were
correctly explained to him regarding his rights of appeal.
Context:
[8]
The appellant admitted: (a) that he became sexually aroused when the
two complainants got unto his bed; (b) that he placed the
complainant
in count one (1) on top of him and he proceeded to sexually penetrate
her by placing his penis in her vagina; (c) that
a district surgeon
examined the complainant in count one (1) and recorded his findings
in a medical report; (d) that the penis
of the appellant was placed
on her
mons pubis
and between the upper part of her
labia
majora
; (e) that no hymenal entrance occurred as evidenced by
the bruising to the complainant in count one (1) and, (f) that the
complainant
in count two (2) sustained no physical injuries.
[9]
It was not disputed that both the complainants were nine (9) years
old at the time of the commission of the alleged offences.

Further, it was not disputed that the appellant attempted to rape the
complainant in count two (2).  As alluded to earlier,
the
judicial officer in the lower court concluded that the convictions
fell to be taken together to impose a sentence upon the
appellant.
A penalty of life imprisonment was imposed on the appellant.
[10]
The appellant’s circumstances were: (a) that the appellant was
fifty-seven (57) years old at the time of the commission
of the
alleged offences; (b) that the appellant was sixty (60) years old at
the time sentence was imposed; (c) that the appellant
was not married
and did not have any children; (e) that the appellant successfully
attained grade twelve (12) at school; (f) that
the appellant was
unemployed; (g) that the appellant received a disability grant; (h)
that the appellant has a condition with his
legs which requires him
to use crutches to enable him to walk; (i) that the appellant was
diagnosed with epilepsy a few years before
his sentence: (j) that the
appellant uses medication daily, and (k) that the appellant was
brutally assaulted by the father of
the complainant on count two (2),
to the point that he lost sight in an eye.
Consideration:
[11]
The minimum sentencing regime provides, among other things
,
that:
‘…
Notwithstanding
any other law but subject to subsections (3) and (6), a High Court
shall –
(a)
if it has convicted a person of an offence referred to in
Part
I
of Schedule 2; or
(b)
if
the matter has been referred to it under
section 52(1)
for sentence
after the person concerned has been convicted of an offence referred
to in
Part 1
of Schedule 2, sentence the person to imprisonment for
life…’
[3]
[12]
The test on appeal is whether the court
a
quo
misdirected itself by the sentence it imposed or if there is a
disparity between the trial court's sentence and the punishment
an
appellate court would have imposed.  Further, can the sentence
imposed appropriately assessed be described as shockingly,
startling
or disturbingly inappropriate.
[4]
It
is trite law that in sentencing, the punishment should fit the crime
and the offender, be fair to society and the offender, and
be blended
with mercy.
[5]
[13]
The appellant submits that the cumulative effect of the factors
listed above should have been regarded as substantial and compelling

sufficient to deviate from the prescribed minimum sentence.  In
addition the appellant contends that the fact that he was
assaulted
after the commission of his crimes and lost sight in his eye and this
is in itself a mitigating factor.  I do not
agree.  This
may be a factor to be considered should the appellant be considered
for parole.
[14]
A court of appeal is enjoined to consider all other circumstances
bearing down on this question to properly assess the trial
court’s
finding and determine the proportionality of the sentences imposed
upon the offender.  An appeal court’s
discretion to
interfere with a sentence may be exercised only: (a) when there has
been an irregularity that results in a failure
of justice; (b) or
when the court
a quo
misdirected itself to such an extent that
its decision on sentencing is vitiated, or (c) when the sentence is
so disproportionate
or shocking that no reasonable court could have
imposed it.
[15]
The court of the first instance superficially
considered the mitigating and the aggravating factors in connection
with the offences
committed and referred to these in the judgment on
sentence.  Significantly, no probation officer's report was
submitted to
the judicial officer in connection with the alleged
disabilities suffered by the appellant.  This is regrettable.
[16]
It is indeed so that the complainants only sustained minor injuries.
However, physical injuries are very different from
emotional and
psychological injuries.  By contrast, what is of importance is
that these crimes were perpetrated against two
(2) young women.
Crimes in general, but especially against women, offend
against the aspirations and ethos of all South Africans.  The
victims,
in this case, were soft targets for the appellant.
The
court of the first instance also emphasized that this type of crime
was prevalent within its jurisdiction.
[17]
In these peculiar circumstances, the sentence of life imprisonment
imposed upon the appellant in connection with the crime
of rape must
reflect a censure to this conduct and behaviour.  Not only do
crimes against women in this country amount to
a severe invasion of
the dignity of the victims, but these crimes do not contribute to our
claims that we live in a gender-equitable
and just society.
[18]
However, following section 73(1)(b) of the Correctional Services
Act,
[6]
, a person sentenced to
life imprisonment theoretically remains in prison for the rest of his
or her natural life.  Life imprisonment,
in practice, is
regarded as a sentence of twenty-five (25) years of imprisonment.
In this connection, the parole provisions
that may become relevant
are indicated as follows;
‘…
A
person sentenced to life imprisonment may not be placed on parole
until he or she has served at least twenty-five (25) years of
the
sentence; but such a prisoner may, on reaching the age of sixty-five
(65) years, be placed on parole after he has served at
least fifteen
(15) years of the sentence…’
[7]
[19]
This, therefore, could mean that the practical effect of imposing a
life term upon the offender, in this case, would only benefit
the
public’s yearning for retribution, prevention and deterrence
for this type of crime.  I say this also because the
offender
has exhibited remorse for his actions.  He showed remorse during
the proceedings for his criminal behaviour.
[20]
After some anxious consideration, I indeed find some redeeming
factors in favour of the appellant in mitigation of his sentence.

I do not find only aggravating factors.  He was undoubtedly from
a difficult background.  He is an elderly man with some

significant disabilities and may be rehabilitated.  He has
already spent about thirty (30) months incarcerated as a pre-trial

prisoner.
When an offender has been incarcerated as an
awaiting trial prisoner for an extended period, this may be
considered when an appropriate
sentence is imposed.  On a strict
interpretation of the law, this does not itself amount to a
substantive and compelling circumstance.
[21]
That being said, nothing prevents this court from considering the
period that the offender has been incarcerated, pending his
or her
trial, when imposing the appropriate sentence.  However, this
does not apply mechanically through an arithmetic calculation.
[22]
A court is expected to depart from the prescribed minimum sentence
regime if it can find and identify substantial and compelling

circumstances to justify such a departure to the benefit of the
appellant. In addition, it is obliged to keep in mind that a
specified
sentence has been prescribed by law as the sentence that
should be regarded as ordinarily appropriate in these circumstances.
[23]
Undoubtedly, some facts and factors constitute substantial and
compelling circumstances to the appellant's benefit.  This
is
even when objectively evaluated against how the crimes were committed
or why these crimes were committed.
I find favour with
the submissions advanced on behalf of the respondent to the effect
that public interest must also be appropriately
served in the
appellant's sentencing, taking into account the nature of the crimes
and the effects upon these young complainants.
Deterrence and retribution often tend to steer the severity of
the proposed sentence in a specific direction.  Rehabilitation,

on the other hand, tends to pull the proposed sentence in yet another
direction.  To focus on rehabilitation in this case,
in my view,
would not lead to an unfair and inappropriate sentence, which will be
disproportionate to that deserved by the appellant
for the crimes
upon which he stands convicted.
[24]
This crime has an element of gender-based violence which in our
country has regrettably reached pandemic proportions.
I believe
an unambiguous message must be sent to offenders participating in
this type of crime.  The respondent’s counsel
wisely
conceded that life imprisonment was not the only appropriate sentence
for the appellant in this case.
[25]
In my view, the court of the first instance did not give enough
weight to the appellant's circumstances and the issue of his
possible
rehabilitation.  This is why I say that the lower court erred
when imposing the sentence of life imprisonment upon
the appellant.
I say this also because the lower court lacked sufficient information
to give the appropriate weight to any
of the personal factors and
circumstances of the appellant.  Also, the appellant did show
genuine remorse.  Undoubtedly,
the circumstances of this case
demand that the appellant, for all practical purposes, be
incarcerated for an extended period.
[26]
However, as alluded to previously, focusing on rehabilitation would
not lead to an unfair and inappropriate sentence, which
will not be
disproportionate to that deserved by the appellant for the crimes
upon which he stands convicted.  Finally, the
imposition of a
life sentence upon the appellant was unjust and disproportionate,
considering the circumstances surrounding the
commission of the
offences.
Order:
[27]
In conclusion, an order is issued in the following terms, namely
that:
1.
The appeal on sentence is upheld.
2.
The sentence of life imprisonment is set aside.
3.
The appellant’s convictions are confirmed
4.
The appellant is sentenced to twenty (20) years of direct
imprisonment.
5.
The sentence imposed in paragraph four (4) above is ordered to
run with effect from 7 July 2022.
6.
The remaining directions that the appellant's name was recorded
in the official register for sex offenders and that he was declared

unfit to possess a firearm are confirmed.
(In
summary, the offender is sentenced to twenty (20) years of direct
imprisonment)
WILLE,
J
I
agree:
THULARE,
J
THULARE,
J:
[28]
I agree with Wille J and in the interests of justice, wish to make a
few comments. It is necessary to begin and stress what
was said in
R
v Mzwakala
1957 (4) SA 273
(AD) at
279F:
“
It
is not necessary to refer again to the various factors that have
already been mentioned. There is no doubt that the crimes were
very
serious ones indeed and I should not wish the view to be entertained
that this Court regards them in any other light. …
But it is
nevertheless in my opinion our duty, for the reasons stated, to
reduce the penalty imposed by the trial Judge.”
[29]
Knowledge of the personal circumstances of a convicted person, for
purposes of sentence is an indispensable tool to measure
sentencing
[
S v Quandu en Andere 1
1989
(1) SA 517
(AA) at 522E]. Every sentence should be considered in the
light of the accused’s person and particular circumstances [
S
v Matoma
1981 (3) SA 838
(A) at 843A].
The appellant was 60 years of age at the time of his sentencing. He
was already in the veranda and in the shade although
not inside the
older person’s infrastructure. Females are older persons at 60
whilst males are older persons at 65 in terms
of the Older Persons’
Act, 2006 (Act No. 13 of 2006). He had what remained as an
unexplained condition of his legs. He used
crutches for mobility. The
nature and extent of his disability is unknown. What we know is that
it was serious enough for the State
to take responsibility of his
welfare and not expect him to be economically active to earn a living
as he was a recipient of a
disability grant. He suffered from
epilepsy, which is accepted to be a central nervous system or
neurological disorder which affects
brain activity and caused
seizures, periods of unusual behaviour and often loss of awareness.
We also know that he was on medication.
[30]
All these facts were compelling for the presiding sentencing officer
to call for a probation officer’s report in getting
to know the
appellant. Presiding Officers should make use of probation officers’
reports for them to get to know an accused
person, especially where
there are above average personal circumstances like age, health and
welfare. The failure of the presiding
sentencing officer to
objectively research and appropriately consider the personal
circumstances of the appellant, were contributory
factors to a
disturbingly inappropriate sentence.
[31]
Section 51(1) of the Criminal Law Amendment Act, 1997 (Act No. 105 of
1997) provides for a sentence to imprisonment for life,
for a person
convicted of the offences for which the appellant was convicted. The
Correctional Services Act, 1998 (Act No. 111
of 1998) provides
guidance of what our nation regards as an exceptionally long period
which a person sentenced to life may serve
before consideration of
parole. For others the period is 25 years. However, for persons
reaching the age of sixty five years, which
is the age that the
appellant would reach within five years of the date of his
sentencing, the longest period is 15 years [section
71(6)(b)(iv) of
the
Correctional Services Act]. This
distinction is not without
significance.
[32]
The underlying thinking behind the differential treatment of older
persons from others, can be traced back to the policy position
of the
Republic on older persons as reflected in specific legislation that
was intended to deal effectively with the plight of
older persons by
establishing a framework aimed at the empowerment and protection of
older persons and at the promotion and maintenance
of their status,
rights, well-being, safety and security; and to provide for matters
connected therewith. The provisions of the
Act do not exclude those
convicted of serious crimes and applies equally to them.
[33]
Section 2
of the
Older Persons’ Act, 2006
, provides for its objects.
Section
2(c)
reads:
“
2
Objects of the Act
(c)
shift the emphasis from institutional care
to community-based care in order to ensure that an older person
remains in his or her
home within the community for as long as
possible;”
Section
5 deals with the general principles of the Act and section
5(2)(a)-(c) reads:
“
5
General Principles
(2)
All proceedings, actions or decisions in a matter concerning an older
person must-
(a)
respect, protect, promote and fulfil the
older person's rights, the best interests of the older person and the
rights and principles
set out in this Act, subject to any lawful
limitation;
(b)
respect the older person's inherent
dignity;
(c)
treat the older person fairly and
equitably;
Section
7 deals with the rights of older persons and 7 reads:
“
7
Rights of older persons
Older
persons enjoy the rights contemplated in section 9 of the
Constitution of the Republic of South Africa and in particular may

not be unfairly denied the right to-
(a)
participate in community life in any
position appropriate to his or her interests and capabilities;
(b)
participate in inter-generational
programmes;
(c)
establish and participate in structures and
associations for older persons;
(d)
participate in activities that enhance his
or her income-generating capacity;
(e)
live in an environment catering for his or
her changing capacities; and
(f)
access opportunities that promote his or
her optimal level of social, physical, mental and emotional well
being.”
And
lastly, section 9 deals with the guiding principles for the provision
of services to older persons and section 9(a) -(c) reads:
“
9
Guiding principles for provision of services
Any
service must be provided in an environment that-
(a)
recognises the social, cultural and
economic contribution of older persons;
(b)
promotes participation of older persons in
decision-making processes at all levels;
(c)
recognises the multi-dimensional needs of
older persons and therefore promotes inter-sectoral collaboration;”
[34]
In
S v Matoma
1981
(3) SA 838
(AA) at 842H it was said:
“
By
ontleding van die verhoorhof se benadering wil dit egter blyk dat
daar in die besondere omstandighede oorbeklemtoning van die
algemene
belang ten koste van die appellant se persoonlike omstandighede
geskied het. Die geleidelike en geregverdigde verswaring
van strawwe
om die vermeerderende voorkoms van n’ bepaalde misdaad met
afskrikking, retribusie en verwydering van die oortreder
uit die
gemeenskap in die belang van die gemeenskap te bekamp, moet by
straftoemeting nie lei tot n’ noodwendige negering
van n’
besondere beskuldigde se eie persoonlike omstandighede wat moontlik
tot straf-vermindering kan lei nie. Elke geval
moet nog steeds in die
lig van die beskuldigde se persoon en besondere omstandighede
opgeweeg word.”
In
S v Mbingo
1984
(1) SA 552
(AD) at 555F-G it was said:
“
In
considering whether a sentence is so severe as to warrant alteration,
one must bear in mind that the trial court is not only
better able to
assess the probable effect of the sentence on the accused, but is
also in closer touch with the community which
the trial court serves,
and has a more intimate awareness of its requirements.”
[35]
In the matter before us, the trial court denied itself the
opportunity to know the appellant better, and to learn from experts

on the effects of the psycho-social position of the appellant and its
relation to the community which the trial court served. By
its own
design, the trial court removed itself from the appellant and his
circumstances, including the community of correctional
services and
the resources of correctional services to an elder, suffering
seizures, with vision in one eye, with physical disabilities,
on
crutches and on medication. The magistrate attached insufficient
weight to the personal circumstances of the appellant. It is

worrisome that the magistrate was dismissive of the appellant
indicating very early in the matter, his intention to plead guilty,

and that a considerable amount of time passed before the State
accepted his plea. It follows that the sentence imposed by the
magistrate must be set aside and an order which will do proper
justice to the appellant be made [
S v
Reay
1987 (1) SA 873
(AD) at 878A].
THULARE,
J
[1]
Act No, 32 of 2007.
[2]
As
formulated in count one (1).
[3]
Section 51
(1) of the
Criminal Law Amendment Act, 105 of 1997
.
[4]
S
v Van De Venter
2011
(1) SACR 238
(SCA) at para [14].
[5]
S v
Rabie
1975(4) 855 (AD) at 862 G.
[6]
Act 111 of 1998 (the Act)
[7]
Section 73(6)(b)(iv) of the Act.