About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2013
>>
[2013] ZAWCHC 76
|
|
GK v S (A05/2013) [2013] ZAWCHC 76; 2013 (2) SACR 505 (WCC) (24 May 2013)
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT)
Case No: A05/2013
In the matter between: Reportable
GK
APPELLANT
And
THE STATE
RESPONDENT
Coram
: GAMBLE J, ROGERS J & MATTHEE AJ
Heard: 15 MARCH 2013
Delivered: 24 MAY 2013
______________________________________________________________
JUDGMENT
______________________________________________________________
ROGERS J:
I have read the judgment prepared by my colleague
Matthee AJ in which he would dismiss the appeal and uphold the
appellant’s
life sentence. For the reasons he gives there is
every reason to view the appellant’s crime with revulsion but
after careful
consideration I have come to the conclusion that the
trial court erred in finding an absence of substantial and
compelling circumstances.
I would uphold the appeal and impose a
sentence of 17 years’ imprisonment.
The facts of the matter are set out in Matthee AJ’s
judgment. I shall not repeat them but will elaborate where I feel
this
is necessary.
It is appropriate first to say something concerning the
approach of an appellate court to a trial court’s finding as
to
the presence or absence of substantial and compelling
circumstances. I do not think a trial court’s finding on this
question
is a matter with which an appellate court can interfere
only if there has been a material misdirection or if the sentence is
‘disturbingly’ inappropriate or induces a sense of
‘shock’. That is the approach when an appellate court
considers a sentence imposed in the exercise of the trial court’s
ordinary sentencing discretion. In terms of s 51
of Act 105 of
1997 certain minimum sentences are prescribed and the court is
deprived of its ordinary sentencing discretion unless
substantial
and compelling circumstances are present. The presence or absence of
such circumstances is thus the jurisdictional
fact (to borrow an
expression from administrative law) on which the presence or absence
of the ordinary sentencing discretion
depends. A determination that
there are or are not substantial and compelling circumstances is not
itself a matter of sentencing
discretion.
The question whether such
circumstances are present or absent involves a value judgment but
unless there are clear indications
in the Act that this value
judgment has been entrusted solely to the discretion of the trial
court, an appellate court may form
its own view as to whether such
circumstances are or are not present. The fact that a judicial power
involves a value judgment
does not in itself mean that it is a
discretionary power in the sense that an appellate court’s
power to interfere is circumscribed
(see
Media
Workers Association of South Africa & Others v Press Corporation
of South Africa Ltd
[1992] ZASCA 149
;
1992
(4) SA 791
(A) at 800C-G). For many years, by way of example, the
test for the admission or striking off of attorneys and advocates
was
whether the person was a ‘fit and proper’ person. A
finding on this aspect was authoritatively held not to involve
a
discretion entailing that an appellate court could interfere only if
the lower court had exercised the power arbitrarily or
on a wrong
principle. This remains the position insofar as advocates are
concerned but was amended in 1984 insofar as attorneys
are concerned
expressly to make the latter power a discretionary one.
1
The test on appeal in regard to a trial court’s
finding concerning the presence or absence of substantial and
compelling
circumstances was left open in
S v Malgas
2001 (2)
SA 1222
(SCA) – see at para 33 where Marais JA in a footnote
referred to the decision in
S v Homareda
1999 (2) SACR 319
(W) at 326c-d. In the latter case Cloete J (as he then was), with
whom Robinson AJ concurred, said that the decision whether
or not
substantial and compelling circumstances are present involves the
exercise of a value judgment but that a court on appeal
is entitled
to substitute its own judgment on the issue if it is of the view
that the lower court erred in its conclusion. I
respectfully agree.
In paragraph 12 of
Malgas
Marais JA set out the well-known
grounds on which an appellate court may interfere with the trial
court’s exercise of its
sentencing discretion. However, Marais
JA was not in this part of his judgment describing the approach
which an appellate court
must adopt in assessing a sentencing
court’s finding as to the presence or absence of substantial
and compelling circumstances.
What he was dealing with was an
argument that the appropriate test for the sentencing court itself
to apply in determining whether
or not substantial and compelling
circumstances are present is to ask whether the prescribed sentence
is one which it would have
interfered with if it was hearing an
appeal against that sentence. In dealing with this argument Marais
JA first described the
conventional approach to appeals against
sentence as background but then went on to say that this was
not
an appropriate approach to test for the presence or absence of
substantial and compelling circumstances.
At a time when the death sentence was still applicable
in South Africa the question of extenuating circumstances was
regarded
as being a matter for the discretion of the trial judge so
that a court on appeal could not interfere unless there was a
misdirection
or irregularity (see, for example,
S v
Mkhonza
1981 (1) SA (A) at 959D-H). However, the legislation was differently
formulated; it expressly referred to the ‘opinion’
of
the jury or the trial court as to the existence or absence of
extenuating circumstances (see
R v Taylor
1949 (4) SA 702
(A)
for the legislation then in force; and see
s 277(2)
of the
Criminal Procedure Act 51 of 1977
prior to its repeal by
s 35
of Act 105 of 1997). This meant that the relevant ‘jurisdictional
fact’ to depart from the imposition of the death
penalty was
the opinion of the jury or of the court convicting the accused.
Section 51(3)(a) of Act 105 of 1997 does not use
the word ‘opinion’
or expressly state that the finding is one in the discretion of the
trial court. The phrase ‘is
satisfied’ in s 51(3)(a),
while it might in a different setting indicate a discretion, does
not necessarily have this
meaning. In the legislation dealing with
the admission and striking-off of legal practitioners, where the
language of ‘satisfaction’
is also used, it has, as
noted earlier, been held that the court of first instance does not
exercise a discretion in the true
sense.
I am aware that in some decisions subsequent to
Malgas
,
including by the Supreme Court of Appeal, one will find statements
to the effect that the trial court misdirected itself in
a
particular respect regarding substantial and compelling
circumstances and that the appellate court could thus reconsider the
matter. However, those cases did not pertinently address the
appropriate appellate test. More recently in
S v Bailey
[2012]
ZASCA 154
, which my colleague cites in a different context, Bosielo
JA said that the approach on appeal to sentences imposed in terms of
the Act should be different to the approach to sentences imposed
under the ordinary sentencing regime. The proper enquiry, he
said,
is whether the facts which were considered by the sentencing court
are substantial and compelling or not, which involves
a value
judgment on the part of the sentencing court (paras 20-21). The
learned judge of appeal naturally did not mean that on
appeal the
court may take into account only those circumstances which the trial
court took into account. All the circumstances
bearing on the
question must be examined to see whether, as the sentencing court
found, there were or were not (as the case may
be) substantial and
compelling circumstances. I take this to mean that the appellate
court can form its own view as to the correct
answer to that
question. In my opinion there is nothing in the Act which fetters an
appellate court’s power to reconsider
the matter of
substantial and compelling circumstances. The values of the
Constitution are better served by an interpretation
which does not
fetter the appellate court when it comes to the question of the
presence or absence of substantial and compelling
circumstances. To
allow an appellate court to make its own value judgment on appeal
provides accused persons with greater safeguards
against the
imposition of disproportionate punishment. That this is a legitimate
concern in the interpretation of the Act is
apparent from the
judgment of the Constitutional Court in
S v Dodo
[2001] ZACC 16
;
2001 (3) SA
382
(CC), particularly paras 35-41 (in
Dodo
the
Constitutional Court dismissed a challenge to the constitutionality
of the minimum sentencing legislation and endorsed the
interpretation thereof in
Malgas
)
.
I pass then to the question whether substantial and
compelling circumstances were present in this case. I naturally
accept that
the rape of a child under the age of 16 is a heinous and
abhorrent crime, which is why the lawmaker has placed this type of
rape
in the category of crimes attracting a life sentence in the
absence of substantial and compelling circumstances. However, the
decisions of our courts, including the Supreme Court of Appeal,
reflect that not infrequently perpetrators of this type of rape
are
not
sentenced to life imprisonment because substantial and
compelling circumstances are found to be present. If one examines
the
minutiae of leading cases it may be difficult to discern why in
some of them life sentences were upheld where in others, not
apparently less heinous, substantial and compelling circumstances
were found to exist. One may need to accept that even on appeal
there is a human element which causes some factors to be accorded
greater weight by some judges than by others. In
Bailey supra
Bosielo JA stated that findings in prior cases cannot be
elevated to the status of binding precedents or benchmarks or be
allowed
to become a straitjacket (paras 16-19). One must thus
distinguish between the legal principles to be deduced from
authoritative
judgements and the detailed application of those
principles to the facts of particular cases. It is the legal
principles with
which lower courts should mainly concern themselves.
The recent decisions in
S v PB
2011 (1) SACR 448
(SCA) and
Bailey
, both of which my colleague has cited, did not
disapprove any statements of principle or approach laid down in
earlier decisions
of the Supreme Court of Appeal nor suggest that
the approach should, because of a change in the incidence of crime,
become more
severe.
In terms of
Malgas
the factors which are to be
considered in determining whether substantial and compelling
circumstances exist are all the factors
traditionally taken into
account in assessing an appropriate sentence, bearing in mind,
however, that it is no longer ‘business
as usual’ and
that the emphasis has shifted to the objective gravity of the type
of crime and the need for effective sanctions.
If, after considering
all the relevant factors, the court has not merely a sense of unease
but a conviction that injustice will
be done if the prescribed
sentence is imposed or (to put it differently) that the prescribed
sentence would be disproportionate
to the crime, the criminal and
the legitimate needs of society, there will be substantial and
compelling circumstances requiring
the court to depart from the
prescribed sentence and to impose a lesser sentence. (The statement
in
Malgas
that no factors conventionally relevant to
sentencing are excluded from consideration must now be qualified
because of the insertion
into s 51(3) of the Act of para (aA)
(this occurred when s 51 was substituted in terms of s 1
of Act 58 of 2007).
Paragraph (aA) sets out certain circumstances
which, in the case of rape, shall
not
constitute substantial
and compelling circumstances. The exclusionary effect of this
paragraph has been held to convey that any
such circumstance on its
own will not amount to substantial and compelling circumstances but
that such factors may be taken into
account together with others in
reaching a conclusion that there are substantial and compelling
circumstances: see
S v Nkawu
2009 (2) SACR 402
(ECG) para 15.
This view was recently approved by the Supreme Court of Appeal in
Mudau v S
[2012] ZASCA 56
para 26.)
In
S v Abrahams
2002 (1) SACR 116
(SCA) Cameron
JA, after observing that the rape in that case was ‘not one of
the worst cases of rape’, said that
‘[s]ome rapes are
worse than others’ and that ‘the life sentence ordained
by the Legislature should be reserved
for cases devoid of
substantial factors compelling the conclusion that such a sentence
is inappropriate or unjust’ (para
29). A similar sentiment was
expressed in
S v Mahomotsa
2002 (2) SACR 435
(SCA) paras
17-19).
This view was further developed by Nugent JA in
S v
Vilikazi
2009 (1) SACR 552
(SCA), where he remarked upon the
fact that there was no gradation in the Act from the category of
rapes by first offenders which
attracted a sentence of 10 years in
terms of s 51(2)(b)(i) read with Part 3 of Schedule 2 and those
which attracted a life
sentence in terms of s51(1) read with Part 1.
A single circumstance may shift the offence from the one category to
the other
(para 13). It is only by approaching sentencing under the
Act in accordance with
Malgas
that it is possible to avoid
incongruous and disproportionate sentences (para 14). This means
that it is the sentencing court’s
duty to assess, upon a
consideration of all the circumstances of the particular case,
whether the prescribed sentence is proportionate
to the particular
offence (para 15).
Malgas
rejected the view that the
prescribed sentence could be departed from only if the circumstances
were ‘exceptional’.
It is wrong, said Nugent JA, for the
sentencing court to assume
a priori
that a life sentence is
proportionate for a crime falling into a particular category.
Indeed, when the matter is correctly approached
it might turn out
that the prescribed life sentence is seldom imposed in cases that
fall into a specified category. If that occurs
‘it will be
because the prescribed sentence is seldom proportionate to the
offence’ (paras 16-18). Nugent JA also
said that if (as is the
case) the presence of only one of the prescribed circumstances may
place a rape in Part 1 rather than
Part 3 (for example, because the
rape victim was 15 rather than 16), the absence of any of the other
prescribed circumstances
is capable of lessening the culpability of
the offender (para 54). This does not mean that life sentences are
only to be imposed
when all the prescribed aggravating circumstances
are present. There comes a point when a life sentence is
proportionate to the
offence, even though a greater horror can be
imagined (para 54).
The most recent relevant decision of the Supreme Court
of Appeal is
Mudau v S supra
. In that case Majiedt JA (with
whom the other four judges of appeal concurred) reviewed that
court’s decisions on rape
sentencing. Majiedt JA, while
recognising that the country was facing a ‘crisis of epidemic
proportions in respect of rape,
particularly of young children’
(para 14) and while emphasising that rape is by its nature a
‘degrading, humiliating
and brutal invasion of a person’s
most intimate, private space’ even when unaccompanied by
violent assault (para
17), repeated the injunction contained in
earlier case law that one should not approach punishment ‘in a
spirit of anger’
and that sentencing must be assessed
‘dispassionately, objectively and upon a careful consideration
of all relevant factors’
(para 13). While the public is
rightly outraged by the scourge of rape and while there is
increasing pressure on the courts to
impose harsher sentences, one
cannot sentence only to satisfy public demand for revenge –
other sentencing objectives,
including rehabilitation, cannot be
discarded altogether in order to attain a balanced, effective
sentence (para 14). The learned
judge of appeal approved the
recognition in cases such as
Abrahams
and
Vilikazi
that there are categories of severity of rape (para 18).
While I do not think it is helpful for present purposes
to analyse the detailed application of general principles to the
facts
of specific leading cases, I note that in
Mudau
the
Supreme Court Of Appeal was called upon to assess the
appropriateness of a life sentence imposed on the appellant for the
rape of a child. The appellant, who was 47 at the time of
sentencing, raped his 13-year old niece. He first penetrated her
vagina with two fingers and shortly thereafter penetrated her vagina
with his penis in an episode lasting about five minutes. Semen
was
subsequently found on the child’s underwear. He gave her R5,00
to buy her silence. He denied the rape and apparently
expressed no
remorse. There was the aggravating feature of an abuse of trust in a
family setting. As against this, the rape itself
occasioned no
serious injury to the victim and there was no additional violence.
There was no victim impact report so the psychological
trauma could
not be assessed. Having weighed the mitigating and aggravating
features, the court held that the trial court’s
imposition of
a life sentence was ‘grossly disproportionate to the offence’.
The life sentence was set aside and
replaced with one of 15 years’
imprisonment.
I thus must not approach the present appeal with a mind
that a life sentence is
a priori
a just punishment for the
appellant. Instead, I must examine all the circumstances of the case
and then ask myself whether I am
not merely uneasy at the imposition
of a life sentence but have a conviction that such a sentence would
be unjust, ie disproportionate
to the crime, the offence, and the
legitimate needs of the community. Inevitably that entails forming a
view as to what a just
sentence would be in all the circumstances of
the case, bearing in mind however that even discretionary sentences
for crimes
dealt with in the Act (ie once substantial and compelling
circumstances have been found to be present) can be expected to be
more severe than before. In this regard Cameron JA stated in
Abrahams supra
that the Act ‘creates a legislative
standard that weighs upon the exercise of the sentencing court’s
discretion’
(para 25). If the just sentence, approached in
this manner, falls materially below the prescribed sentence there
will be substantial
and compelling circumstances to depart from the
prescribed sentence. As was held in
Malgas
(para 23),
substantial and compelling circumstances are not confined to
circumstances where the prescribed sentence would, in
relation to
the sentence the court would have imposed, be ‘disturbingly’
inappropriate or ‘induce a sense of
shock’. In other
words, a discrepancy falling short of the latter test (which applies
when an appellate court considers
whether it may interfere with a
trial court’s discretionary sentence) may justify a finding
that substantial and compelling
circumstances exist to depart from
the sentence prescribed by the Act.
As to the criminal act itself, I think the rape in this
matter falls well short of the most serious types of rape for which
a
life sentence would ordinarily, in the new regime, be a just
sentence:
[a] Firstly, it was oral rape. Disgusting and awful
as this must have been for the complainant, it was a form of rape
which
was far less calculated to injure and cause physical pain to a
young girl’s body than vaginal or anal rape. As a fact there
was no evidence that the complainant suffered injuries or significant
pain. Her virginity remains intact. (In making this observation
I do
not suggest that this circumstance on its own could be the basis for
finding of substantial and compelling circumstances but
it is a
factor to be borne in mind when assessing the circumstances of the
case as a whole.)
[b] Second, the evidence does not establish that the
appellant ejaculated at all, let alone in the complainant’s
mouth or
on her body. Whether or not the appellant intended to reach
orgasm was not explored at the trial but in the event the fact that
he did not do so at least spared the complainant some of the horrors
associated with oral rape. (Although the complainant would
probably
not have understood concepts such as orgasm and ejaculation, the
magistrate asked her through the intermediary whether
there was
anything in her mouth apart from the appellant’s penis. She
said no.)
[c] Third, the duration of the act appears to have been
quite brief. The appellant got the complainant to move her head
forwards
and backwards. The evidence does not establish how many
times she did so but she testified that she stopped doing it because
she
did not like it. As noted, the appellant did not reach orgasm.
[d] Fourth, the rape was not accompanied by extraneous
violence.
[e] Fifth, although my colleague says it was ‘cynical’
for the appellant to have given the complainant R5,00 to buy her
silence, he at least did not resort to violence or threats of
violence to silence her (cf
Vilikazi
para 55).
Regarding the prelude to the criminal act, my colleague
says that the appellant ‘lured’ the complainant to his
home.
This would be indicative of significant premeditation and
would, I agree, be an aggravating factor. However, I do not think
the
finding of enticement is factually secure. The appellant asked
the complainant to go and buy him cigarettes. She went to his gate
and he gave her money. He was a trusted neighbour, and he had made
such requests on prior occasions without incident. Although
it is
possible that the appellant sent her to the shop with the intention
of grabbing her once she came back, it seems equally
plausible that
his decision to seek sexual gratification was a spur-of-the-moment
act on her return. Otherwise he might as well
have grabbed her at
the gate without asking her first to go to the shop (since it was at
the gate that he grabbed her on her
return).
It may be said that it is for the accused person to
show that there are substantial and compelling circumstances and
thus (for
example) to rebut the inference of premeditation. My
colleague discusses the question of onus in a different context (in
relation
to the presence or absence of long-lasting emotional and
psychological damage), suggesting that it might be for the accused
person
to show that there has been no such harm. In my view it would
be incorrect to approach the matter on the basis that the court must
impose the prescribed sentence unless the convicted person proves
ameliorating circumstances. The court’s duty is to see
that
justice is done and this means considering the circumstances of the
matter to determine whether the imposition of the prescribed
sentence would give rise to injustice. The power to depart from the
prescribed sentence if substantial and compelling circumstances
are
present is coupled with a duty to investigate those circumstances.
Insofar as the circumstances of the crime itself are relevant
to the
enquiry (as they undoubtedly are), the State must prove the offence,
and the court in sentencing must work with what has
been proved. I
thus think that it would be wrong to assume that the crime was
premeditated unless on the evidence such an inference
can be drawn
beyond reasonable doubt (which I do not think is the case here).
There is the further circumstance,
relevant not only to the question of premeditation but also to the
appellant’s moral
culpability in general, that alcohol may
have played some part in the appellant’s conduct on the day in
question (which
was a Saturday). At the commencement of the trial he
initially pleaded guilty, adding however that he could not remember
what
had happened. After a short consultation the plea of guilty was
changed to one of not guilty. In his lawyer’s
cross-examination
of the complainant he put to the girl that the
appellant said he was drunk and could not remember anything about
what she claimed
to have happened. She denied he was drunk. However
she initially said that she did not know how to tell whether someone
was sober
or drunk and that she did not know how wine smelt. The
appellant’s evidence was that he had had a few drinks. He
claimed
not to be able to remember what happened after the
complainant returned with the cigarettes. He said he had once
received a blow
to the head as a result of which he often forgot
things, adding that he did not know whether the alcohol he drank on
the day
in question had perhaps had an effect so that he could not
remember what he had done. He said: ‘
Ek
wil net vir die Hof sê dat ek sal nou nie sê as ek die
ding gedoen het, dan stry ek ek het dit nie gedoen nie
.’
There was evidence that on the night
of Wednesday 5 October 2011, the day on which he was arrested, he
made a statement in which
he told the policeman he pleaded guilty to
everything, adding that he was drunk and had an alcohol problem. The
appellant agreed
with this when it was put to him in
cross-examination. There was also evidence that on the day of his
arrest he had been drinking
(he described himself as ‘
babelaas
’
when he made the police statement). In
cross-examination he said that he had told the policeman taking his
statement that he was
guilty because he wanted to be done with the
case and come before court as soon as possible as he could not
believe he had done
the alleged deed. Later in his cross-examination
he said he had never previously had trouble with children. Upon
being asked
why he then had done to the complainant what was alleged
on 1 October 2011 he replied: ‘
Dis
wat ek ook graag wil opklaar’
. The
magistrate, in her judgment on conviction, expressed the view that
the loss of memory was a ‘suspicious last-minute
defence
created by the accused in order to exculpate himself’. While
the supposed loss of memory has its suspicious features
(particularly since the appellant seems to have had a fair
recollection of what happened immediately before and after the
critical
period), it is not entirely fair to accuse him of a
‘last-minute defence’. Already in his statement to the
police
on 5 October 2011 he referred to the role which alcohol may
have played.
Turning to the complainant, my colleague emphasises
that she was seven at the time of the rape. He says that given this
fact alone
it is difficult to imagine a more heinous crime. I
disagree. The fact that the victim is under the age of 16 is the
circumstance
which, in a case such as the present one, places the
rape in Part 1 of the Schedule. However, the authorities make clear
that
within this category of crime there are degrees of severity.
The rape of a child is by definition an egregious crime but there
are nevertheless often instances where a life sentence will be
disproportionate. I find it difficult to discern why, within the
range of ages from newborn infant to a child just before her or her
his 16
th
birthday, the age of seven should be singled
out. It will depend on all the circumstances of the case. Of course,
the younger
the victim the greater the chance of serious injury (cf
S v Nkawu
2009 (2) SACR 402
(ECG) para 10) but the
aggravating feature will then be the injury and pain caused to the
young child.
My colleague rightly points to the evidence of adverse
emotional and psychological effect on the complainant. Some of these
adverse
effects have to do with the behaviour of others and are not
the direct consequence of the appellant’s conduct. I refer
here to the fact that the complainant has been the subject of vulgar
comments by other children and that certain members of the
community
who apparently support the appellant have displayed hostility
towards the complainant’s family. Such conduct
is to be
deprecated but there is no evidence that the appellant himself (who
was arrested shortly after the incident and has
remained in custody)
organised a campaign against the complainant’s family. On the
contrary, the social worker’s
report records that the
appellant’s wife was supportive towards the complainant’s
family. There is, however, evidence
of more direct negative effects
on the complainant – feelings of fear and shame, changes in
mood, becoming withdrawn and
less trusting. The complainant received
therapy for six months. The social worker who compiled the report
said that the complainant
might require further therapy. The report
reflects, unlike the case of
S v PB supra
, that the
complainant has a loving and stable family environment. The social
worker was not called to testify so that her report
could be
interrogated. The impacts described in the report appear to me to be
significant without being of an extreme or debilitating
kind. The
fact that the social worker could not confidently say that future
therapy was needed may indicate that the complainant,
with the love
and support of her family, will make a good recovery from her
ordeal. It is also not without significance that
the complainant’s
mother did not herself notice anything amiss with her child after
the incident on Saturday 1 October
2011 and only learnt of the
alleged sexual assault on Tuesday 4 October 2011 (I think her
reference to Thursday 6 October 2011
was an error), after the
complainant had spoken of the incident with one of her friends who
in turn told the mother.
My colleague quotes in his judgment certain passages
from the judgment of Satchwell J in
S v M
2007 (2) SACR 60
(W) where the learned judge highlights the difficulty in fully
ascertaining the after-effects of rape and also queries why a
perpetrator should be treated more leniently because the rape victim
fortuitously is more resilient than might otherwise have
been the
case. I acknowledge that the adverse effects of rape may only come
to the fore, or become more pronounced, with the
passing of time.
This is a factor which a court will need to bear in mind in
determining whether substantial and compelling circumstances
are
present. I would not accept, however, that the resilience of the
victim has no bearing on the enquiry. The fact that a perpetrator
must take his victim as he finds him or her cuts both ways. An
assault which a robust victim might survive might lead to the
death
of a victim with a frailer constitution; in the one case the
perpetrator will be convicted and punished for assault (or
assault
with intent to cause grievous bodily harm) while in the other case
he may be convicted and punished for murder. The leading
decisions
of the Supreme Court of Appeal on minimum sentencing are replete
with examples where the effect of the crime on the
victim has been
taken into account. In the most recent decision of that court in
Mudau
there was no victim impact report. I am sure that the
court was alive to the fact that rape is always likely to be
accompanied
by some emotional or psychological trauma but the
absence of clear evidence of significant trauma of that kind was
clearly regarded
by the court, in conjunction with other factors, as
militating against the imposition of the most severe sentence.
My colleague observes that the appellant expressed no
remorse and that this must count against him. I agree. Whether the
failure
to express remorse is, as my colleague considers, indicative
of a lack of insight into his reprehensible conduct is less clear
to
me. Persons who face serious charges may consider that their best
course is to deny the charge, since even a guilty plea will
not
spare them a heavy sentence. The court naturally cannot condone the
putting up of a false version, and the fact that an accused
person
lies and makes the complainant re-live her experience in court must
certainly go into the scales against him. However,
once an accused
person follows this course he effectively makes it impossible to
throw himself on the mercy of the court and
to express remorse. In
the present case it cannot really be said that the appellant put up
a false version in the sense of positively
denying what the
complainant alleged. His defence was that he could not remember, so
in effect he put the State to the proof
of its case. Although he did
not (in view of his not guilty plea and the nature of his defence)
expressly articulate remorse,
the general tenor of his evidence
reflects in my view a recognition that if he really did what was
alleged it would be appalling.
As to the appellant’s prior
convictions, my colleague places some emphasis on his conviction for
attempted rape in 2002
for which he was sentenced to 4 years’
imprisonment, apparently in terms of s 276(1)(i).
2
Unfortunately the circumstances
relating to the earlier offence were not explored in the court
a
quo
. It cannot be
assumed that the complainant in that case was a child. Given that
the conviction was for attempted rape, one can
accept that no form
of penetration occurred. The sentence was imposed after Act 105 of
1997 came into force. Although attempted
rape is not a crime
attracting a prescribed sentence, the legislature’s attitude
to rape can be assumed to have affected
the sentence. In those
circumstances, and given the relatively light sentence imposed, it
is fair to conclude that the act was
not particularly heinous. It
certainly counts against the appellant but should not in my view be
given undue prominence.
The prior conviction for attempted rape is to some
extent offset by the fact that the appellant was 56 when he
committed the crime
in the present case and about 45 when he
committed the attempted rape. He had three unrelated convictions
dating back to 1975
and 1986 for which he received very light
sentences. The present case is thus only his second serious
encounter with the law
over a 40-year period of adult life.
My colleague considers that the prior conviction,
coupled with the appellant’s lack of remorse and inferred lack
of insight,
makes the prospect of his rehabilitation remote. I
regard this view as speculative. I have already pointed out that the
manner
in which the appellant chose to defend himself made it
difficult simultaneously to express remorse or to display the
insight
which he might well have had. I have already suggested that
the general tenor of his evidence appears to entail recognition that
the alleged act would be utterly unacceptable. I have already said
that he seems, in 40 years of adulthood, to have had only
two
serious brushes with the law, the first one when he was 45 years of
age. He was by all accounts a trusted neighbour who had
frequent
interactions with children over the years. The complainant’s
mother said that the appellant loved children, he
loved buying them
sweets, that the family would often sit with him and he would send
the children to the shop. Prior to his arrest
he had been working as
a painter for 20 years, most recently earning R250 per day.
Although there was a victim impact report, there was no
pre-sentencing report concerning the appellant’s
circumstances.
Given the heavy sentence which the appellant was
likely to face, there would have been considerable merit in
obtaining such a
report. The report could have explored the extent
of the appellant’s abuse of alcohol, the blow to the head
which he mentioned
in passing, his earlier conviction and other
personal circumstances which would have put the trial court in a
better position
to assess whether substantial and compelling
circumstances were present and to determine a just sentence.
In all the circumstances, to write off the appellant as
an irredeemable recidivist appears unduly harsh and not factually
grounded.
There is every reason in this case to bemoan, as Nugent JA
did in
Vilikazi
, the superficial manner in which the question
of sentencing was investigated in the court
a quo
. The
transcript of the appellant’s attorney’s address to the
magistrate on sentence covers only 48 lines of transcript
and could
not have lasted more than five minutes. The attorney said that it
was very hard to contend that substantial and compelling
circumstances were present. As I hope will be apparent from my
judgment, the gloomy brevity of the attorney’s address is
hardly justified by the circumstances of the case viewed in the
light of leading authorities.
When I weigh all these factors I am convinced that life
imprisonment would be unjust and disproportionate to the crime, the
offender
and the legitimate needs of society. Prior to the coming
into force of Act 105 of 1997 on 13 November 1998 and then the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007
on 16 December 2007, the appellant’s crime would have
constituted indecent assault and probably been penalised by a few
years’ imprisonment, in all likelihood less than five years
(see the review of indecent assault sentences in
Coetzee v S
2010
(1) SACR 176
(SCA) paras 18-25 and the sentence imposed in
Coetzee
itself). Having regard to the enactment of the legislation just
mentioned and the escalation in this country of sexual crimes
against children, sentences would now need to be more severe. Even
so, to say that life imprisonment is currently the just sentence
for
a crime which only a few years ago would have been punished with
(say) five years’ imprisonment seems to me to be going
considerably too far. Just a few years ago a sentence of, say, 18
years’ imprisonment in the present case would in all
likelihood have been described on appeal as shockingly severe and
disturbingly inappropriate. It is a mark of the rapid adjustment
which our courts have made to harsher sentencing for crimes covered
by Act 105 of 1997 that we can now contemplate such a sentence
as an
appropriate ‘more lenient’ one in place of the
prescribed life sentence. However, we should not allow ourselves
to
be numbed into ignoring the severity of the sentences that are now
routinely passed, even those where substantial and compelling
circumstances are present. Imprisonment of 18 years is a very harsh
punishment. That is the sentence I regard as in principle
appropriate but I would deduct one year for the period of about 13
months which the appellant spent in custody awaiting trial,
giving a
sentence of 17 years’ imprisonment antedated to 7 November
2012 (the date on which he was sentenced in the court
a quo
).
It follows that in my view the magistrate erred in
finding that there were no substantial and compelling circumstances.
Her focus
on the scourge of sexual violence towards young children
and the community’s outrage at such conduct resulted, in my
respectful
view, in her failing to pass sentence in the
dispassionate and objective manner required of our courts and in
placing all the
emphasis on retribution without properly considering
the degrees of severity of rape or the appellant’s personal
circumstances.
Given the nature of the issues in this appeal, my
judgment may appear to focus on the circumstances favourable to the
appellant
which justify a departure from the prescribed life
sentence. I thus wish merely to say once again that the crime was a
repugnant
one, which is reflected in the harsh sentence of 17 years’
imprisonment. While comparisons with sentences imposed in other
cases are of limited utility given the infinite variety of the
circumstances bearing on an appropriate sentence, I may observe
that
the sentence I propose in the present case is more severe than the
15 years’ imprisonment imposed by the Supreme Court
of Appeal
in
Mudau
. The rape in that case was, I think, in a more
heinous category than in the present case. On the other hand, we are
dealing here
with a younger child in respect of whom clear evidence
of significant psychological trauma was adduced and where the
appellant
has a prior conviction in respect of a sexual offence.
Towards the end of his judgment my colleague says that
he is not prepared to risk allowing the appellant back into a
community
where he has access to young girls and that central to his
oath as a judge and as an upper guardian of children is to do
whatever
he can to give content to s 28 of the Constitution. I
would respectfully suggest that the judge’s oath requires her
or him to impose a just sentence, guided by the principles laid down
by our courts over the years. It is an unfortunate reality
that
persons convicted of serious crimes may reoffend upon their release
but that has never to my knowledge been viewed as a
justification in
itself for the imposition of life sentences. A just punishment
attempts to reduce the risk of reoffending by
bringing home to the
convicted person the disadvantages and unpleasantness associated
with serving a prison sentence. Prisons
run programs aimed at
rehabilitation. Parole conditions may provide a further inducement
to refrain from crime. The offender
comes out of prison older and
hopefully a little wiser. But inevitably the risk of reoffending
remains. If a judge is required
to view her or his duty as being to
ensure that persons who might reoffend and thus violate the
fundamental rights of others
(whether the right to life, physical
safety or property) are never released back into the community we
shall be sending a great
many people to prison for life for all
sorts of crimes. The leading judgments of the Supreme Court of
Appeal, some of which have
been mentioned in this judgment and in
the judgment of Matthee AJ, do not suggest to my mind that the
judge’s oath of office
and the court’s role as an upper
guardian of children requires a judge to impose a life sentence for
rape if a risk of
reoffending cannot be excluded. (The position
would be different where a pre-sentencing report in respect of the
convicted person
were obtained and the evidence revealed the picture
of a sexual predator with no or poor prospects of rehabilitation.)
I would thus make the following order: ‘The
appeal succeeds. The sentence imposed by the court a quo is set
aside and there
is substituted therefore a sentence of 17 years’
imprisonment antedated to 7 November 2012.’
GAMBLE J:
I concur and it is so ordered.
______________________
ROGERS J
APPEARANCES
For Appellant: Adv LN Adams
Cape Town
For Respondent: Adv A Allchin
Instructed by:
Office of the DPP
Cape Town
1
In
regard to attorneys, see
Kudo v Cape Law Society
1977 (4) SA
659
(A) at 675;
Nyembezi v Law Society Natal
1981 (2) SA 752
(A) at 756B-758C and
Law Society Transvaal v Behrman
1981 (4)
SA 538
(A) at 551D-557A. In regard to advocates, see
Kekana v
Society of Advocates of SA
[1998] ZASCA 54
;
1998 (4) SA 649
(SCA) at 654C-E. In
1984 the Attorneys Act was amended to convert the test into one for
the trial court’s discretion (see
Law Society of Cape of
Good Hope v C
1986 (1) SA 616
(A) at 636H-637E). No similar
change was made in regard to advocates, hence the decision in
Kekana
(which followed
Nyembezi
).
2
I
say apparently, because the SAP 69 form refers to the sentence
having been in terms of ‘Art 276(I)’. In the court
below
the magistrate and the legal representatives appear to have assumed
that this was a reference to s 276(1)(i).