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[2013] ZAWCHC 167
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Martheze v S (A336/2013) [2013] ZAWCHC 167 (1 November 2013)
REPUBLIC OF
SOUTH AFRICA
IN THE HIGH
COURT OF SOUTH AFRICA
(WESTERN CAPE
HIGH COURT, CAPE TOWN)
High Court Case No: A336/2013
Magistrates Court Case No: SWS
21/2009
In
the matter between:
LORENZO
MARTHEZE
.......................................................................................
Appellant
and
THE STATE
......................................................................................................
Respondent
Before
: Judge Rogers
et
Judge
Cloete
Date
: Friday, 1 November 2013
Delivered
: Tuesday, 5 November
2013
REASONS FOR ORDER
CLOETE J
:
The appellant (who had pleaded not
guilty) was convicted as charged on 7 June 2011 on one count of
rape of a girl who was
7 years and 11 months old. On 1 August
2011 he was sentenced to 18 years imprisonment. The court
a quo
refused leave to appeal against both conviction and sentence. On
petition the appellant was refused leave to appeal against
conviction but granted leave to
appeal against sentence.
The facts are briefly as follows. The
appellant and the complainant’s mother had lived together in
an intimate relationship
and the complainant resided with them.
Their relationship was characterised by alcohol abuse and domestic
violenceto which the
complainant had been exposed. She had also been
physically, verbally and emotionally abused by the appellant; and
had further
witnessed her mother being raped.
On a date between 11 and 14 November
2008 the appellant raped the complainant by having vaginal
intercourse with her, after having
assaulted and chased her mother
away from their home. Subsequent examination by a Sexual Assault
Nurse Examiner revealed two
recent tears to the complainant’s
hymenas well as pain in her genital area.
Given that it involved the rape of a
minor, the offence attracts a minimum sentence of life imprisonment
in terms of s 51(1)
as read with Part 1 of Schedule 2 of
the
Criminal Law Amendment Act 105 of 1997
(‘
the Act’
).
At the commencement of the trial it was placed on record that the
appellant had been informed thereof.In the court
a quo
it was
argued on behalf of the appellant that substantial and compelling
circumstances existed which justified a deviation from
the minimum
sentence. These were that: (a) the appellant had been under the
influence of alcohol; (b) the abuse to which the
child had
previously been exposed by her mother meant that she was already
traumatised before the rape; (c) the appellant had
been held in
custody awaiting trial for 2 years and 7 months before his
conviction; and (d) although he had two previous
convictions for
assault, the appellant’s last conviction had been some 10
years earlier (it should be mentioned that the
appellant has 11
previous convictions in all).
S 51(3)(a)
of the Act stipulates
that if a court is satisfied as to the existence of substantial and
compelling circumstances, it must:
(a) enter those circumstances on
the record of the proceedings; and (b) thereupon impose a lesser
sentence.
Although not entirely clear from its
judgment, the court
a quo
appears to have found that
substantial and compelling circumstances lay in the fact that the
complainant’s mother had not
only exposed her to domestic
violence and shockingly inappropriate behaviour, but had also failed
to take any steps to protect
her. That the appellant had been under
the influence of alcohol at the time of the rape was regarded as an
aggravating, and not
a mitigating, factor. The period that the
appellant had spent in custody awaiting trial was however taken to
be a mitigating
factor.
On appeal it was argued that the
sentence imposed by the court
a quo
was disturbingly
inappropriate for the following reasons: (a) although the appellant
has a long list of previous convictions,
this is the first
conviction for a sexual offence; (b) the only physical injuries were
the two tears to the complainant’s
hymen; (c) the
complainant’s mother was largely to blame for the
complainant’s trauma as was evident from the degree
of anger
and ambivalence that the child displayed towards her; and (d) in a
number of other cases to which we were referred involving
rape of a
minor it was found that an appropriate sentence would be between 10
to 15 years imprisonment.
In
Zilwa v S
(an unreported
judgment of this court in case no A164/2011 handed down on
14 October 2011) it was said at paras [15] and
[16] that:
‘
[15]
Rape, particularly of children, is a scourge in our society.Every
child has the right to be protected from maltreatment, abuse
or
degradation (see s 28(1) of the Constitution… ). Our courts
have repeatedly emphasised the necessity for women and children
to be
protected and that those who rape these vulnerable members of society
can expect to attract the harshest punishment. In
State
v Chapman
[1997] ZASCA 45
;
1997
(2) SACR 3
at 5b-e, Mahomed CJ said that:
‘
Rape
is a very serious offence, constituting as it does a humiliating,
degrading and brutal invasion of the privacy, the dignity
and the
person of the victim. The rights to dignity, to privacy and the
integrity of every person are basic to the ethos of the
Constitution
and to any defensible civilisation. Women in this country are
entitled to the protection of these rights….
The Courts are
under a duty to send a clear message to the accused, to other
potential rapists and to the community: We are determined
to protect
the equality, dignity and freedom of all women, and we shall show no
mercy to those who seek to invade those rights.
We communicate that
message in this case by an order that the appeal of the appellant
against his convictions and sentences is
dismissed.
[16]
These sentiments apply at least equally to the most vulnerable
members of our society, namely its children. This was an unprovoked
attack on a young, defenceless girl… That the rape of a child
should attract the harshest penalty, life imprisonment, was
recognised and endorsed by our legislature when it implemented the
Criminal Law Amendment Act.&r
squo;
In
S v Nkunuma & Others
(101/13) [2013] ZASCA 122 (23 September 2013) the Supreme Court of
Appeal had the following to say at paras [16] and [17]:
‘
[16]
Rape and robbery have become serious social problems. It is not
difficult to take judicial notice of this phenomenon in the
light of
the number of such cases dealt with by the regional courts, the High
Courts and those which eventually come to this court.
The shocking
statistics regarding rape (albeit some eight years old), dealt with
in
S
v De Beer [2005 JDR 0004 (SCA) para 19]
and
referred to in
Matyityi
[2011 (1) SACR 40 (SCA)]
,
are set out in the following quote:
“
It
is widely accepted that the statistics of reported rape reflect only
a small percentage of actual offences. NICRO estimates that
only 1
out of every 20 rapes is reported, whilst the South African Police
Service puts the figure at 1 out of 35. For the first
six months of
1998, 23 374 rapes were reported nationally. As an annual
indicator of rape employing the lower 1 out of 20
estimate, the
figure was a staggering 934 960. Research at the Sexual Offences
Court in the Western Cape, for the same period,
reveals that of the
reported rape cases: 56.62% were referred to court; 18.67% were
prosecuted; and, only 10.84% received guilty
verdicts.”
[17]
Rape must rank as the worst invasive and dehumanising violation of
human rights. It is an intrusion of the most private rights
of a
human being, in particular a woman, and any such breach is a
violation of a person’s dignity which is one of the pillars
of
our Constitution. There does not seem to be any significant decline
in the incidence of rape since the publication of the statistics
referred to above. The same can be said of robbery. No matter how
they are viewed, society has called, on more than one occasion,
for
the courts to deal with offenders of such crimes sternly and
decisively.’
These sentiments have been reaffirmed
in
Makatu v S
(612/2012) [2013] ZASCA 149 (25 October 2013)
at para [30]:
‘
[30]
For some time now this country has witnessed an every-increasing wave
in crimes of violence, notably murder and sexual offences.
Undoubtedly, these crimes seriously threaten the very social and
moral fabric of our society. As a result our society is seriously
fractured. The majority of our people, particularly the vulnerable
and the defenceless which include women, children, the elderly
and
infirm live under constant fear. It is no exaggeration to say that
every living woman or girl in this country is a potential
victim of
either murder or rape. This is sad because these heinous crimes
happen against the backdrop of our new and fledgling
constitutional
democracy, which promises a better life for all. These crimes have
spread across the length and the breadth of our
beautiful country
like a malignant cancer. They are a serious threat to our nascent
democracy. They have to be exterminated with
their roots.’
I turn to consider the arguments
advanced on appeal against the backdrop of these authorities. First,
the fact that this is the
appellant’s first conviction for a
sexual offence is not relevant, given the clear provisions of
s 51(1) of the Act.
Second, s 51(3)(aA)(ii) thereof
stipulates that an apparent lack of physical injury to a complainant
shall
not
constitute a substantial and compelling
circumstance in a case of rape (eeven though it might in combination
with other mitigating
factors go into the mix in determining whether
substantial and compelling circumstances exist). Third, the
appalling behaviour
of the complainant’s mother cannot
possibly minimise the appellant’s own blameworthiness for the
rape, and to the
extent that this was indeed the court
a quo
’s
finding, I am in respectful but complete disagreement therewith. In
any event, the complainant’s mother was not
even in the house
when the rape took place. Fourth, the Supreme Court of Appeal in
Nkunkuma
at para [9], referring to
S v Malgas
2001 (1)
SACR 469 (SCA) at paras [7] – [9], reiterated that there have
to be ‘
truly convincing reasons’
to depart from
the imposition of a minimum sentence.
In my view none of the grounds
advanced, both in the court
a quo
and on appeal, constitute
truly convincing reasons for a departure from a sentence of life
imprisonment. Nor are there any other
factors which could constitute
substantial and compelling circumstances such as to result in the
imposition of a lesser sentence.
The appellant was 33 years old. He
was supposed to nurture and protect this young girl. Instead he
physically, verbally and emotionally
abused her over an extended
period. He gave no thought to the physical and psychological
consequences to the complainant when
he raped her. These
consequences are well documented in the record and accordingly do
not need to be repeated. Suffice it to
say that the long term
psychological damage to this defenceless child is severe, and cannot
– and should not – be
underestimated. It is a poor
excuse for the appellant to argue that a lesser sentence should be
imposed because of the social
worker’s opinion contained in
the Victim Impact Report that it is difficult to differentiate
between the extent to which
the damage was caused by the pre-rape
trauma, and the rape itself. Even if there had been no pre-rape
trauma, the long term psychological
damage as a result of the rapeis
both self-evident and significant.
In
Makatu
the court did not
consider the appellant’s state of intoxication to be a
substantial and compelling circumstance such as
to justify the
imposition of a lesser sentence. It is also to be noted that the
appellant flatly denied having raped the complainant;
then alleged
that he had been intoxicated; and during a later interview for
purposes of the pre-sentence report, he denied any
such
intoxication. He showed no remorse, and his personal circumstances
which were dealt with in the court
a quo
’s judgment do
not of themselves constitute truly convincing reasons for the
imposition of a lesser sentence. The period
that the appellant spent
in custody awaiting trial (partly his own doing) is more than
neutralised by the sentence of only 18
years imprisonment.
It is accordingly my view that the
appellant can count himself lucky to have escaped with a sentence of
18 years imprisonment.
Indeed, it is not understood why the state
did not appeal the sentence imposed.
In the result I propose the
following order:
The appellant’s appeal
against his sentence of 18 years imprisonment is dismissed.
The conviction and sentence are
confirmed.
_________________
J I CLOETE
ROGERS J
I agree and it is so ordered.
_________________
O ROGERS